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Neil Roberts

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    Providing comments and references for educational purposes. No legal advice is given or intended.

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  1. Garth, before we leave this, I wanted to point out that DFARS 252.227-7013 admonishment you rely on in your post is not the only language that may be applicable. See DFARS 252.244-7001 CONTRACTOR PURCHASING SYSTEM ADMINISTRATION-BASIC (MAY 2014) (c) (2) as follows: (c) System criteria. The Contractor’s purchasing system shall— (2) Ensure that all applicable purchase orders and subcontracts contain all flowdown clauses, including terms and conditions and any other clauses needed to carry out the requirements of the prime contract; So, in each case where you suspect something, you should ask the prime contractor or other Buyer, what the rationale is for needing it. The answers to that might not be obvious to a subcontractor.
  2. I suggest a subcontractor protect its reputation by engaging an experienced government contracts/subcontracts intellectual property attorney before contacting a Government Agency or Members of Congress.
  3. No, and I have been involved with many CPSR reviews where DCMA is involved.. The intellectual property area is complicated in its technical meaning. In my experience, very few people involved in government contracts and subcontracts are well versed enough to analyze if there has been an overreach. I don't recall any government CPSR Guidebook item that covers this. I have been involved with many negotiations between prime and subcontractor where objections by the subcontractor were raised and resolved or at least understood better. Some were not. I don't doubt that what you say appears to or actually has taken place. Under the circumstances, it may be that way as much or more by substance ignorance or misapplication of the company's standard terms than intentional.
  4. ,I am not aware of any definition of that in the UCC or common law. If you are, would appreciate you sharing it. Thanks.
  5. Per FAR 4.1802(b) and 52.204-17 , I would assume the Government issues contracts to the Cage Code that owns or controls a Cage Code offeror. And, if that was not the practice, to me, the correct Cage Code holder is not being examined and held accountable for meeting the NDC criteria.
  6. The online law dictionary defines "entity" as follows" Legally, equal to a person who might owe taxes. A generic term inclusive of person, partnership, organization, or business. An entity can be legally bound. An entity is uniquely identifiable from any other entity. My view is that a division or department is not an entity because they can't be sued or contract in their name. However, a subsidiary or joint venture may be a segment/entity. I did not research the context for the CFR segment definition above. But according to your post, the NDC concerns entities, not segments.
  7. The DPAS rating applies to a supplier at all levels when the DPAS rating/requirement is included in the contract between a supplier at any level and its higher level customer (this includes the customer called Government.) You must examine the terms of the contract between this "vendor" and its customer to know whether the DPAS rating/requirement was flowed.
  8. You could start your quest with Information in FAR 15.403-1(c)(1)(ii)
  9. DE, The delegation is ok. The "almost never" general position or Government experience seems inappropriate or questionable. Regardless, your company's justification rationale is unknown. I would hope you include the attempted source in the competitive bidding solicitations, which might be very difficult if the non-competitive justification was solid.
  10. 1. Was FAR 52.244-2 included in your prime contract? Does it apply to the contemplated subcontract type, etc. Can we assume your company does not have an approved purchasing system? 2. What is the basis for DCMA having any contract right to "deny your sole source justification?" Perhaps a contracting officer might not approve the subcontract for consent per 52.244-2, but I never heard of DCMA having any right to be involved with denying any subcontract. What are the prime contract terms and conditions that establish such a right? 3. Whatever your written procedures say about how to accomplish solicitations and source selection is what your should do.
  11. My suggestion is to review the subcontract for language controlling billing/payment/invoices. If that language prohibits them from doing so, reject the invoice and explain the rationale. If not, and your company retained the contract right to examine its books and records, you may seek approval from the sub to engage a 3rd party to verify correctness of the invoice, provided the 3rd party signs an agreement with the sub not to disclose G&A details.
  12. Are you questioning the Quick Closeout language in FAR.42.708..."(a) The contracting officer responsible for contract closeout shall negotiate (emphasis added) the settlement of direct and indirect costs for a specific contract, task order, or delivery order to be closed, in advance of the determination of final direct costs and indirect rates set forth in 42.705..." Seems to me you can include language in the submittal that indicates the facts to date regarding rates as indicated above. I would request contracting officer written clarification that the government wishes to proceed with 42.708 and 42.705-1 Contracting Officer Determination Procedure. It appears that contracting officers should coordinate with other government functions, that may be backed up with work.
  13. 9.409 Contract clause is as follows: The contracting officer shall insert the clause at 52.209-6, Protecting the Government’s Interests when Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment, in solicitations and contracts where the contract value exceeds $35,000. 52.209-6 is in part as follows: (c) The Contractor shall require each proposed subcontractor whose subcontract will exceed the threshold specified in FAR 9.405-2(b) on the date of subcontract award, other than a subcontractor providing a commercially available off-the-shelf item, to disclose to the Contractor , in writing , whether as of the time of award of the subcontract , the subcontractor , or its principals, is or is not debarred, suspended, or proposed for debarment by the Federal Government. The procurement system for a prime contractor I worked for required all suppliers to register in SAM and monitored debarred, suspended or proposed for debarment information from SAM daily and where it matched up to a supplier in the system, a subcontract to be awarded would not generate. The system required every supplier be formally in the system. Also, a certification regarding debarred, suspended or proposed for debarment status was required as part of the solicitation.
  14. I was unable to locate language in 13 CFR 121.404 that would help me respond to your posting. You may wish to consider contacting SBA directly.
  15. Could you perhaps clarify your post? It looks like three questions were intended. What is the question in number 1 and 2? In question number 3, what are you referring to with respect to "[d]oes it matter?" Ideas about what?
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