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Neil Roberts

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Everything posted by Neil Roberts

  1. Subcontracting plans are not required from small businesses. Even if you were required to submit a subcontracting plan, since you apparently do not subcontract, it would be easy for you to fill one out with all zeros. Also, an argument can be made that a subcontracting plan is not required when there are no subcontract possibilities.
  2. Having contract battles in Government contracting is normal. If a contract is offered to you in writing, you can try take exception in writing to the clauses you think are inappropriate, indicating that you accept the contract without the objectionable clauses. In doing so, there is always a risk that your customer would just walk away from you and find someone else who will accept the clauses. I don't think anyone here can help your customer change its mind about whether you are a subcontractor that must be flowed certain clauses. Don't know what your goals are and what you think the solution is. Obviously, you can just walk away from the deal if you haven't signed the contract.
  3. Standard practice is to compete all subcontract work. In doing so, the proposed subcontractor responds to the RFP/ITQ with its rates. Supplier Management (Procurement) is generally the function that performs this work.
  4. What does you contract with the prime say with regard to your questions?
  5. You could file a complaint with the SBA and/or get in touch with your Congressional Representative as to fairness. However, you apparently agreed to the rate as your proposed rate, so what is your complaint??? Also, you have not indicated what the dollar difference per hour is between your fully burdened rate and the NTE rate. Anyone you discuss this with would want to know. Not sure either of these supports actually winding up being a subcontractor in a timely manner.
  6. As indicated in earlier posts, more restrictive advanced notice and prior consent requirements and withholding of payments are consequences. It is "tribal knowledge" in industry that an approved purchasing system is "required" to qualify for responding to large Government contract solicitations. Example: GAO Accountability Office protest case Symvionics B-408505 http://www.gao.gov/assets/660/658010.pdf . I am not aware that this is based on any regulatory/contract consequence of a failed system. Regardless, it is a competitive disadvantage not to have an approved system and this is often seen as even greater concern and risk than contract consequences such as consent or payment withholds.
  7. Per FAR 52.244-2 (i), the Contractor agrees that the Government may perform a CPSR.
  8. If the deliverable items are critical and not easily re-obtained in the event of non-performance, I suggest you request a written plan from the company with milestones dates for the correction, re-review and re-assessment of system approval. You should monitor this and meet with them regularly about progress. You may also want to consider requesting a performance bond from the company.
  9. A May 2017 version of the DCMA CPSR Guidebook has been located at http://www.dcma.mil/Portals/31/Documents/CPSR/CPSR_Guidebook_050917.pdf
  10. I always questioned the adequacy of the source justification when seeing distributor involvement in a proposed procurement, before looking at the adequacy of competition. For example, if it was requested that a Ford automobile is required to be ordered, was there adequate justification for that vs. issuing an RFP to many brand car dealers for automobiles that carry x passengers, get x miles per gallon or more, are licensed to drive on highways and streets, etc. I believe it would be a stronger file if the manufacturing source justification was adequate to support a determination of competitive pricing among distributors of that product. You may get better or more views if you could fill in the details of your scenario, Phil as to source justification and market research. But, it would be awfully nice if we could get a view from CPSR teams or those that deal with them daily e.g., see CPSRHelpandHints on Facebook
  11. Neil Roberts

    Commercial SB Plans

    A commercial plan is preferred per 52.219-9 (g). I assume this clause is to be included your contract? If your are a subcontractor, you might look at paragraph (j) to determine whether your are exempt from such a plan.
  12. Hi Vern: Happy to see you are still involved day to day with this forum. The contract obligation I am talking about is the obligation to flow the -7007 clause. Z-Mil's initial posting asked for thoughts about a contractor buying electronic parts from an OEM even though the OEM would not agree to accept -7007. My thoughts were that action would be required to report the OEM parts as potentially counterfeit and quarantine the parts until this was resolved. I don't know why any contractor or subcontractor would want to shoot themselves in the foot by entering into such a contract with an OEM that will not accept -7007.
  13. Whether or not a mandatory flowdown clause included in a prime contract is seen as "stupid" or "forget it", is irrelevant to the contractor or subcontractor's contract obligation. My view is they should take such action as finding another source willing to accept the clause, requesting DPAS related assistance from the Government if a rated order and applicable, obtaining a contract modification for this procurement, escalating available leverage with the OEM, etc., which is what Z-Mil, this post initiator has apparently done.
  14. On the concern about required action should a prime contractor decide to purchase from an OEM that will not accept -7007, I agree that the prime contractor is not required by -7007 to notify the contracting officer that (1) the prime contractor appears to be in breach of contract for doing business with the OEM and (2) the prime contractor Purchasing System appears to be non-compliant with 252.244-7001 (see paragraph (d) of -7007). However, a case can be made that the prime contractor is required by -7007 paragraph (c)(6) to report to the Government that the OEM is suspected for counterfeit electronic parts (because it refuses to accept -7007) and quarantine such parts upon receipt from the OEM until such time as they can be determined to be authentic.
  15. Could you clarify the chain of potential subcontract levels (who is buying from whom in your hypothetical), and/or explain what you are thinking about the relationship between -7007 and -7008? Perhaps I do not understand the post. In my mind, a prime contractor should be flowing both clauses to its supplier and in so doing, change the parties in the last paragraph such that each supplier would be required to flow it to the next level supplier. If -7007 is included in a prime contract, a prime Contractor subject to Cost Accounting Standards and any of the lower level suppliers in the chain would be in violation of a contract if it does business with an OEM that does not agree to accept -7007. What am I missing?
  16. well, there are Bid & Proposal Cost and there are Cost Accounting Disclosure Statements applicable to many contractors and subcontractors. An answer should be found somewhere in there. Whoever is proposing these costs should be requested to justify them as allowable, allocable and reasonable with references provided to each of the above if they are applicable to the contractor or subcontractor business.
  17. Neil Roberts

    Using GSA in price analyses

    The May 2017 Handbook Appendix 11section reads as follows below ( I am not aware of a more recent version. Does the bold sentence below answer your question? It appears to me that the answer to your question is "no." II. Practice The CPSR Analyst needs to first determine whether an award was competed or based on sole source. If an award was not competed, the analyst must review and analyze the price analysis that was utilized to determine if the price was fair and reasonable. As required in the contractor’s policy, each of those applicable files must document the rationale used for making the pricing decision and include the source and type of data used to support the determination. The complexity and circumstances of each acquisition should determine the level of detail of the analysis required. FAR 15.404-1(b)(2) describes examples of price analysis techniques to establish price reasonableness:  Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price.  Comparison of proposed prices to historical prices paid for same or similar items. This method may be used for commercial items including those “of a type” or requiring minor modifications. o The prior price must be a valid basis for comparison. If there has been a significant time lapse between the last acquisition and the present one, if the terms and conditions of the acquisition are significantly different, or if the reasonableness of the prior price is uncertain, then the prior price may not be a valid basis for comparison. o The prior price must be adjusted to account for materially differing terms and conditions, quantities, and market economic factors. o Expert technical advice should be obtained when analyzing similar items or commercial items that are “of a type” or requiring minor modifications, to ascertain the magnitude of changes required and to assist in pricing the required changes.  Use of parametric estimating methods/application of rough yardsticks.  Comparison with competitive published price lists, published market prices of commodities, similar indexes, and discount or rebate arrangements.  Comparison of proposed prices with independent cost estimates.  Comparison of proposed prices obtained through market research for same or similar items.  Analysis of data other than certified cost or pricing data provided by the offeror. In accordance with DARS class deviation memo 2014-O0011, if a contractor is authorized to use GSA schedules, then a price reasonableness determination should be made using the analysis techniques at FAR 15.404-1. GSA schedules are not be used as a basis for comparison when conducting market research.
  18. Neil Roberts

    Trade Agreements (TAA)

    Are you questioning whether 52.225-5 is applicable to the task order you received because the task order is not for the acquisition of supplies or the acquisition of services involving the furnishing of supplies? If so, I think you have a good argument that even though the clause is included in the terms of the task order, it is inapplicable. The government may have included this clause on the outside chance that some task order may involve the acquisition of supplies or the acquisition of services involving the furnishing of supplies. As ji20874 indicated above, to be applicable, the services and/or supplies are those deliverable to the government. The task order appears to be your schedule in this case. If ODC items are required to be furnished/delivered to the government per your task order requirements, my opinion is they need to be compliant with 52.225-5. To me, the key is not what your internal accounting system calls the purchase. Instead, the key is whether the task order requires an ODC, Tool or Material item be delivered to the government. Your company's requisitioning and accounting system in my mind should indicate that the such a supply item is "charged" to the task order government contract and must meet the terms and conditions of the such contract.
  19. Neil Roberts

    Trade Agreements (TAA)

    If you are a contractor, Love, I commend you for reading the contract to solve your question. "What's in your contract" is a common refrain. I am not sure why you mention FAR Part 25 in connection with your contract. Generally speaking, Part 25 guides Contracting Officers and are not contract clauses or provisions like Part 52. Did you have some experience or belief that they were incorporated into government contracts or that some Part 25 language is made expressly applicable to contractors even if not in the contract?
  20. Neil Roberts

    Trade Agreements (TAA)

    It was not clear to me whether you are a Contracting Officer that already issued a contract and are attempting to understand what contract obligations to expect performance from the contractor, or you are the contractor. Can you please clarify?
  21. Neil Roberts

    Basic Question

    From a contractor view, could you please clarify what you are trying to do? Are you asking whether FAR 51.1 may authorize the sale of vehicles to contractors (and if so, not sure what supply source sells such vehicles), or use of such vehicles by contractors? Perhaps others in this forum would benefit and be able to better respond. What led up to your focus on FAR 51.1? Was FAR 51.2 inapplicable?
  22. Neil Roberts


    Seems to me that the sub may choose to stop delivering and the prime may choose to stop paying if they each have that right under the contract between them. To me, in so far as DPAS is concerned, if the prime is reasonably in jeopardy of or has actually failed to deliver or perform per the prime contract, the Government may exercise its right against the prime. The Government may step in with the sub if requested by the prime. For all anybody knows, the sub delivered items are not acceptable from a quality or other standpoint, and the prime is seeking another source or in the process of terminating the subcontract to protect the prime schedule.
  23. Neil Roberts

    What is a GACO?

    There is a Government Agency Coordination Office (GACO) that sponsors a series of FAR seminars.