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Neil Roberts

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Everything posted by Neil Roberts

  1. The contracting officer does not know whether or if a prime will be procuring commercial items. The prime contract in my experience, necessarily includes the clauses needed or required per the prescription for each clause corresponding to the contract work, contract type, etc. Those clauses in the prime are not necessarily limited to only the clauses in FAR 52.244-6. Including those clauses is not a deviation from FAR 44.402(b). Some of those required clauses may include mandatory flowdowns.
  2. Don, This language is not included in the contract. Also, how do you see the flowdown situation when DFARS 252.244-7000 is also included in the prime?
  3. To explain. My yes is most clearly the case for DFARS flowdown clauses per 252.244-7000. FAR clauses, less clear. However, as a procurement system business model, I would not choose the risk of a breach of contract claim for failing to do so. Also, what would you do if DFARS 252.244-7000 and FAR 52.244-6 are included in the same prime? Would you go so far as to say that 52.244-6 takes precedence and nullifies 252.244-7000 and that only the specified FAR clauses in 52.244-6 are required to be flowed?
  4. My view: 1. I don't think you will be successful in obtaining any relief from DCMA because DCMA can not change your contracts. FAR Part 44 is not a prime contract provision and is instructive as to reviews. 2. FAR 52.244-6 merely including a basic list of clauses that must be flowed. However, it does not state that all other mandatory flowdown clauses included in your contract are deleted from your contract in cases where your are procuring a commercial item. 3. To be compliant with your contract, mandatory flowdowns must be flowed as indicated, whether they are FAR, NASA, DOD or some other Agency clause. This is reinforced for DOD clauses per 252.244-7000, when included in your contract. 4. The "may flow additional clauses" language in 52.244-6 and 252.244-7000 refers to clauses other than mandatory flowdown clauses. It says "may" because it is up to you whether you wish to be in breach of contract or not. Example: Your end item starts out as an automobile, your prime states that all end items must be made in the USA (and is not a mandatory flowdown clause), and your end item automobile is qualified as made in the USA. if your end item under this contract eventually is a spare end steering wheel which itself never qualified as made in the USA, you may be in breach of contract for purchasing it and delivering it to the Government under this contract.
  5. Void Ab Initio - (Invalid from the Outset)

    Why do you want to void the contract? Did you ask the Contractor if they agree that the contract be cancelled by mutual agreement at no cost to either party? If not how do they intend to perform it? I am not on Government side of contracts so I am curious about your approach, and your reaction to my proposed solution.
  6. No problem, Vern. BTW, happy new life adventure. Have fun!
  7. I don't know, Vern. I was relying on DCAA CAM 6-102.1 Incurred Cost Audit Objectives which reads as follows:"The auditor's primary objective is to examine the contractor's cost representations, in whatever form they may be presented (such as interim and final public vouchers, progress payments, incurred cost proposals, termination claims and final overhead claims), and to express an opinion as to whether such incurred costs are reasonable, applicable to the contract, determined under generally accepted accounting principles and cost accounting standards applicable in the circumstances..."
  8. it sounds like Contractor indirect costs have been generally found to be reasonable and in accordance with GAAP and CAS Disclosure Statements. ,Hence the small % of "net savings." It sounds to me like focusing on "net savings" is measuring Contractor fraud, and there isn't enough of it to warrant more audits! Is there some other way to look at it? Is there some more info re the third bullet above? Having difficulty making the connection between speed of audits and "encouraging contractors to focus on high risk audits." Incurred cost audits do not look like high risk when measured against my view of "net savings." Thanks in advance for any additional info.
  9. What is the exact language, including modifications of parties, if any, that your firm included in the subcontract? In my view, Your "interpretation" of what your firm "means," is not the same as actual "substitution" language that was included in the contract. The actual contract language would determine which requirements the subcontractor is required to comply with, including registration. In the absence of any modification for identification of the parties, the Contractor is required to comply with the requirements but it would not be clear what, if anything, the subcontractor is required to comply with.
  10. The logic requiring flowdown of 52.245-1 to suppliers include situations where the supplier is using/in possession of Contractor furnished government owned property or facilities and/or Government furnished property or facilities, and the like, in performing work under the prime regardless of the price of the subcontract. Also, the clause requires that Contractors shall flow down prime contract terms and conditions including those addressing liability for loss of Government property, which is included in 52.245-1. Logically, failure to flow 52.245-1 may put the Contractors approved property system and/or approved purchasing system at risk.
  11. Fllowdowns

    Still not sure what the basis is for your question. But, does the following language to be included in the subcontract, help you? The FAR and DFARS clauses cited below, where applicable by their terms, are incorporated herein by reference as if set forth in full text. The full text of all clauses incorporated by reference is available at http://www.acquisition.gov/
  12. Fllowdowns

    Not sure what you mean. Reading the clause should tell you, if there is such a requirement. Is there some general requirement about flowing by reference and flowing by full text that you are looking at?
  13. First, congratulations to your and your firm, ThomCons. Could you please elaborate as to whether your firm does DOD work (or FAR only) and exactly how this DCMA information was communicated i.e., observation, finding, comment, significant deficiency, etc., and whether your firm has formally responded to DCMA with the arguments presented above? By the way, DFARS 252.244-7000 states as follows: "The Contractor is not required to flow down the terms of any Defense Federal Acquisition Regulation Supplement (DFARS) clause in subcontracts for commercial items at any tier under this contract, unless so specified in the particular clause."
  14. Increasing Rights in Software--> In-scope Change?

    Did you assure yourself that there are no data rights clauses included in the prime contract (FAR 52.227/DFARS 252.227, etc) that already makes going from Restricted to Unlimited as in-scope?
  15. NAICS Codes for Prime Award vs SB Teammates

    I see that code section as applicable only to a prime subcontract/solicitation to a supplier.
  16. 52.215-12 and Vendors

    There are practical business decisions that should be made by a firm in relation to supplier management and flowdowns. Is the business going to operate by reading the prime and flowing FAR clauses included in the prime that require flowdown and compliance, or is the business going to second guess every clause in the prime and do research to determine whether it should have been in the prime? Second guessing is easier if the firm has only a few prime contracts. However, if the firm wants to grow its business, my view is complying with the prime contract is the best and most cost competitive approach with the least risk.
  17. 52.215-12 and Vendors

    Relying solely on FAR 15-403-4 and/or the public law (as pointed out above by joel hoffman) to formulate a position still leaves questions in my mind surrounding the words "required" and "furnished." Is cost or pricing data "required" if 52.215-12 was included in the solicitation but the Government did not ask for it to be "furnished?" Same question with respect to its inclusion in the contract. Also, what is the support the a prime contractor can rely on/point to that an award to it was "competitive" and that therefore cost or pricing data was not "required?"
  18. 52.215-12 and Vendors

    I have seen this situation many times. You say you were awarded a competitively awarded contract. In my experience, Contracting Officers issuing solicitations do not always know at the outset whether the contract will be awarded on a competitive or negotiated basis and include negotiated solicitation terms to be on the safe side. Therefore, FAR 52.215-12 may be inserted into the solicitation. Upon award of a competitive contract (not clear sure how you know the basis of the award), the Contracting Officer out of pressure, expediency, inexperience etc., may simply incorporate all the solicitation terms and conditions into the award with no objection from the prime (they really wanted the work and feared that taking exception would put them at a competitive disadvantage). In my opinion, if 52.215-12 is included in the prime contract, failure to flow it to suppliers and obtain the required certified cost or pricing data is a potential breach of contract between the prime and the Government. There are those in the subcontract world that do not think about that and do not flow 52.215-12 even when in the prime contract, because (a) it seems not to have made sense for it to have been included in a competitively awarded prime contract and/or (b) if the prime doesn't have to furnish cost or pricing data, subcontractors certainly do not either. It may even be that the prime subcontracts might be excluded from a CPSR review if the prime is competitively awarded. Some might take comfort that there is little risk that the Government would review such a subcontract, or if it does, would not be expecting that the prime would be obtaining subcontract cost or pricing data.
  19. Per FAR 31.204 costs must be reasonable. You didn't indicate how how your firm supported its reasonableness. Just because it is incurred, does not make it reasonable. If there was adequate support of its reasonableness at the time of purchase, perhaps you can explain what that was to DCAA. Not sure what is meant be "formal agreements" and "true subcontractors." Anything in writing between your firm and another entity has the potential to be a valid contract, no matter who executes it for your firm.
  20. Davis v. Conley

    My understanding is that professional liability insurance for an individual would probably not pay for damages caused by the individual's commission of a crime. However, the insurance company may defend the person against such allegations until such time as there is a judicial finding that the damages were causes by the commission of a crime. It does seem possible that aside from defending the person, the insurance company might actually pay for damages negotiated in a civil suit settlement that clearly indicates there is no admission of liability/criminal guilt. In my view, it might be possible in a criminal law prosecution plea deal that indicates admission of guilt to a lesser unrelated charge, i.e., disturbing the peace. Are there any insurance experts out there that can comment?
  21. Davis v. Conley

    And with respect to that, Vern, I believe federal employees should consider looking into obtaining insurance against liability when sued in their individual capacity for claims alleged to be in violation of the U.S. or a State constitution, a federal statute or state tort law. For some employment positions, the Government may reimburse for such insurance. There does seem to be a process for employees to request that the Government provide Government attorneys to represent them. That representation isn't always guaranteed. The cost to an employee for hiring an attorney is expensive, aside from the possibility of being personally liable for damages. In my view, federal employees should bone up on what their situation is in their Agency and job category.
  22. Davis v. Conley

    Wonder whether the investigator or his supervisor even thought about conferring with the U.S. Attorney's Office before acting, to determine whether the U.S. Attorney would prosecute. All the facts were known except authenticity, and it could be assumed it was authentic moon rock. Next step, facetiously, maybe Neil Armstrong should be prosecuted posthumously for giving out this gift. The Government action in this case disturbs me.
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