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Neil Roberts

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Everything posted by Neil Roberts

  1. Neil Roberts

    Commerciality Request

    The prime's determination that a subcontract item is a commercial item can be based on the subcontractor's assertions, and not some independent judgement of the prime about the subcontractor's item. If, for example, a Contracting Officer determines that the item is not commercial, the prime does not wish to be in the position of the subcontractor refusing to provide information, claiming that the prime made the determination about the item, not the subcontractor. This could explain the prime's reluctance. Prior commercial item determinations do not have to be automatically recognized by the USG or the prime. Definitions and requirements change over time. I am unaware of a clause that you describe about a prime being prohibiting from asking a subcontractor for any information about a prior commercial item assertion made by a subcontractor. You may however, have a leg to stand on based on your contract, as i previously indicated.
  2. Neil Roberts

    Commerciality Request

    DFARS 244.402 does not require that a prime contractor advise subcontractor whether it “accepts” or “approves” the commercial item assertions made by subcontractor. As others may have indicated, you should ask each prime why and what the subcontract basis is for additional support work after the subcontract is in effect. There are missing facts and scenarios in your post. However, for example, per FAR 15.403-1(c)(3) [called out in DFARS 244.402], it appears the Contracting Officer may determine that an item being purchased by a prime contractor from a subcontractor is not a commercial item, even after the prime determines it is, and requests additional commercial item determination and pricing support from the prime. Are you asking whether your company is on sound subcontract footing to refuse to support its previously submitted commercial item assertion? It depends. You must thoroughly read and understand the subcontract obligations and assess your business position and risk. Example: a subcontract clause that gives the prime access to your financial books and records, a prime contract level defective pricing clause that passes this financial risk on to you by a subcontract clause if related to your pricing, etc. Prior commercial item determinations by prime contractors are not required to be recognized on subsequent buys. Even if recognition was to be considered, there should be some analysis along the lines suggested in DOD Guidebook for Acquiring Commercial Items Jan 2018 https://www.acq.osd.mil/dpap/cpic/cp/docs/Guidebook_Part_A_Commercial_Item_Determination_20180129.pdf at page 15. In lieu of those 7 analysis items, in my opinion it would still be more efficient and best practice to follow the existing process to assert and justify the item anew.
  3. Neil Roberts

    Commerciality Request

    I don't understand your company's rationale, StePa, or I don't fully understand what you are saying about the commercial item determination. In my view and experience, the subcontractor is responsible for identifying which paragraphs of the definition it is asserting its offered goods and/or services are a commercial item. The burden of proof is on the subcontractor. Additionally, I expect relevant facts to be stated by the subcontractor that support the assertion. Then I expect all of it to be certified to by signature. The prime or higher tier subcontractor should then internally review the assertion and facts, do any required market research/due diligence and if it agrees, endorse the subcontractor's assertions.
  4. Neil Roberts

    Software Roulette

    There are several sources easily found on the internet that find and compare MRP or ERP systems that best fit your business. Or, if you are happy with the Deltek Premiere product, you can send them a Request for Information asking them to identify comparable software that works with your platform.
  5. Slippery slope here. If the prime did an analysis of the proposal, did the analysis support the proposed? Was there a negotiation plan? If so, what are the facts that were not disclosed that would reasonably expect to affect price negotiations (and the analysis and negotiation plan) significantly? Suggest you put that story together and ask the subcontractor for a response.
  6. Neil Roberts

    SUPPLIER VETTING

    There are many ISO software systems you can find on line at competitive prices. With just a quick look I found this one that seems to offer free advice/templates, which may give you some ideas and help you determine the depth of your needs. https://www.iso9001help.co.uk/index.html
  7. Neil Roberts

    SUPPLIER VETTING

    Suggest you obtain this from your parent organization, Northrop Grumman.
  8. Neil Roberts

    Fee Realignment

    While you are at it, please indicate whether the prime contractor make or buy plan was incorporated into the contract and if so, what does it say regarding changes to such a plan.
  9. My view is that the GAO and Agency result should be no different even if aging baby boomers were substituted for millennials. Rationale: The deficiency was state to be a recruiting process that was based on job postings, college recruiting at one school, employee referrals and unclear timing as to when a recruiting firm would be engaged, all of which appears to be objective and rational and unrelated to whether it was millennials or baby boomers.
  10. Neil Roberts

    Conforming Auto Liability

    I also expected that your company's business practice include a requirement for a Certificate of Insurance specifically for automobile insurance. It does not appear that your company's prime contract requires automobile insurance from your company or from subcontractors. And, I either overlooked or misinterpreted because I didn't read anything about a Certificate of Insurance being required by your company's contract for any party. Also, I am not aware that the definition of a Certificate of Insurance includes automobile insurance on a mandatory basis.Therefore, I am not following your "view." I definitely sympathize with your situation with the program office and the subcontractor. Unless this subcontractor is a mandatory source, you could consider disqualifying the subcontractor and go with the next qualified bidder if you included your "view" in the bidding document. I don't know if you are also the contract administrator for your company. If not, you should obtain the contract administrator's view as to the prime/subcontract requirement. You could also consider documenting the procurement file with signature of the PM accepting the prime contract risk of non-compliance as determined by your view. You probably should escalate with your manager before you do that. Other possibilities is to ask for help from your company's cognizant attorney, whatever that process is and/or request that the subcontractor provide supporting documentation for its view i.e., a copy of any of the prime contract schedule and terms and conditions during the last 10 years under which work was performed and the corresponding contract terms and conditions from its customer. This assumes your "view" is reasonably sustainable by actual prime contract language.
  11. Neil Roberts

    Conforming Auto Liability

    Regardless of any specific prime contract requirements, in cases where licensed vehicles will be used in connection with performance of the work, I would have expected that your company's business practice would incorporate a subcontract requirement that a subcontractor carry and maintain Business Automobile Automobile Liability Insurance for bodily injury and property damage for a specified not less than dollar limit.
  12. What is the contractual requirement? Are the rates for such personnel included in the contract? For example, does the contract states that 5 specifically qualified described people are to perform x work onsite and paid $xxx each, per hour/day ? Does the contract state that personnel shall work only if available? Need more relevant contract facts.
  13. The contractor's own written policies that may include avoiding an appearance of conflict of interest should be reviewed to determine whether the "gift'" may be prohibited by its own policies. My view is that the OGC and Agency, even after acceptance of the gift, does not by itself insulate a contractor from corrupt intent focus in offering the gift. See for example, 18 USC 201 Bribery of Public Officials and Witnesses. Subparagraph (b)(1) is as follows: (b) Whoever (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent... You may wish to take a look at the U S Office of Government Ethics Compilation of Federal Ethics Laws https://www.oge.gov/web/OGE.nsf/All Documents/0BC1FF0EB760D84A85257E96006A9256/$FILE/Compilation of Federal Ethics Laws (2015).pdf?open. I see the gift of (used?) furniture as providing an income tax deduction. Such a tax benefit could have been accomplished through a donation to charitable entities. Donating it instead to a government agency that a contractor wishes to do business with does not sound angelic to me or a sound business practice.
  14. Neil Roberts

    DFARS 215.404-1 Update question

    DFARS 215.404-1(b) appears to apply to both commercial and non-commercial items as indicated. (b)(i) appears to apply to both commercial and non-commercial items (obtain market research pricing) and if that fails, my view is that (b)(ii) instructs only what to do with respect to commercial items, including but not limited to those exempt from cost or pricing data.
  15. Michael, I am in no position to speculate about what might be acceptable to the Government. If I was filling out this form, I would first call the CO and have a discussion about why patent or royalty clauses or questions are being asked in closeout of a task order (and not the entire contract.) It wouldn't surprise me if a pro forma closeout was sent which covers all contingencies, including those that do not apply to all contract/solicitation situations. I would explain that I could not locate any contract or binding solicitation provision regarding this topic and ask the CO to help by providing a specific contract or solicitation obligation. If none was provided, I would enter "N/A" with the above explanation.
  16. Neil Roberts

    DFARS 215.404-1 Update question

    Hi Don My reading of the post question (in bold) above leads me to ask about whether your reference to FAR 15.404-1(b)(2)(ii) technique applies to non-commercial items. Do you read it that way? Could you please clarify your thoughts? I am not sure whether the reference in subparagraph (ii) to commercial items was intended to alleviate doubts about whether it applies to commercial items or was intended to state that it only applies to commercial items.
  17. It would help if you provided more details. 1. What Agency of the Government issued the contract? 2. Did you receive a pro forma closeout request from the Government. Is there an identifying form number associated with it? 3. Does the contract include any FAR 52.227-xx, DoD 252.227, or other agency .227 clauses? If so, which? If not, suggest you consider answering all contract closeout patent, copyright or royalty questions with "N/A" unless these type clauses were included in the solicitation, in which case you should study it further as to your company's response to the solicitation, and its obligation. 4. Was the contract competitively awarded, negotiated or sealed bid type? The $250 is incorporated in FAR 52.227-6, which is a solicitation provision. There may not be much interest or offhand knowledge about why this amount has been unchanged since 1984. You can research that in the Federal Register for that time period. Some rationale of the Government's interest in royalty is included in FAR 52.227-6 and FAR 27.202-5
  18. Neil Roberts

    Commercial Item Justification

    Good comments above regarding missing rationale from the prime. You might also want to bone up on the DoD Guidebook for Acquiring Commercial Items JAN 2018 https://www.acq.osd.mil/dpap/cpic/cp/docs/Guidebook_Part_A_Commercial_Item_Determination_20180129.pdf
  19. Neil Roberts

    2nd Tier Sub Labor Violations

    Retread, I don't believe I said a prime contractor is required to directly manage its 2nd tier subcontract. If you are asking me for such examples, I have none to offer. I thought I said "prime contractors should generally 'manage its subcontracts' by taking action to include those in CPSR review requirements, if the prime may be subject to a CPSR." There is nothing in my language that suggests that a prime contractor's 2nd tier subcontract is the primes (its) subcontract. If you are asking for examples of how a prime should generally manage its subcontracts under FAR contracts, see FAR 44.303 (g) and (j) for example.
  20. Neil Roberts

    2nd Tier Sub Labor Violations

    Sure, Retread. CPSR requirements include "Maintain subcontract surveillance to ensure timely delivery of an acceptable product and procedures to notify the Government of potential subcontract problems that may impact delivery, quantity, or price." What is your company doing to comply in post award surveillance of subcontracts? Example: What does the purchasing, business or accounting system do identify and monitor critical part supplier financial health during the performance period?
  21. Neil Roberts

    2nd Tier Sub Labor Violations

    Hi Retread. I think Vern's post answered your question. I think the case you cited struggled with what "managing a subcontract" means even if 42.202 (e)(2) was incorporated in the contract. Absent specific "managing a subcontract" requirements incorporated in the prime contract, I would say that prime contractors should generally "manage its subcontracts" by taking action to include those in CPSR review requirements, if the prime may be subject to a CPSR.
  22. Neil Roberts

    2nd Tier Sub Labor Violations

    FAR Part 42.000 guides Government oversight of a prime contract and in rarer cases, a subcontractor. Was it the Government that advised your firm about the non-performing subcontractor? Your concern about (e)(2) language is understandable. My view is that a 2nd tier subcontract is not "its" (your firm's) subcontract and therefore your firm is not responsible for managing the 2nd tier subcontract. Perhaps the Government is providing such oversight? Nonetheless, if in managing your 1st tier subcontract's important milestone performance/progress, your firm did or should have been aware of non-performance by the 2nd tier subcontract that negatively affected the 1st tier subcontract performance, it could be said your firm did not adequately manage "its" subcontract.
  23. Vern, those are good questions and I would hope some of the government side experts here could respond. Being only from the industry side, I would propose an industry commercial bailment agreement, wait for the Government response and negotiate to mutual agreement. Governing law includes contract/common law. See, discussion at http://smallgovcon.com/claims-and-appeals/government-damages-contractors-equipment-board-awards-costs/
  24. If your company and your Government customer run into difficulties incorporating the request into the current contract, you may wish to consider a separate bailment agreement between your company and the Government for a company laptop that is configured with the information. Standard bailments include liability clauses.
  25. From an industry view, if you are contemplating that a contractor furnish the services, there is no enforceable option unless there is a price for each option...it is just a contract to maybe make a contract. Accordingly, it does not seem as attractive as it should be to potential bidders or in the Government's interest in getting the best prices. Suggest you obtain bids for a base contract with priced options, include a standard option exercise clause, and check with the other agency when it is time to exercise the option. It is up to them if they want to exercise it. If not exercised, there is no commitment.To clarify, if you intend to purchase these services from another Government Agency, it seems to me my suggested approach may be applied unless it is not compatible with the practice among agencies.
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