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Neil Roberts

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Everything posted by Neil Roberts

  1. Shipping Terms Not Called Out in the FAR

    Sounds like your suppliers are shipping from outside the U.S or its possessions. These shipping terms are complicated and include customs, duties, taxes and liability for loss. The standard for such shipping is INCO terms (International Chamber of Commerce). Specific terms such as you are seeking, are defined therein. But, you will probably need to do Google research on the plain meaning of the given definition.
  2. FACs and FAR Cases

    Would be interested in the time line for completing section (d). That seems to be a heck of a lot of work.
  3. CPSR driven by FAR 52-244-2?

    Hi Bulgheroni: Your question can be asked at the LinkedIn CPSR Forum https://www.linkedin.com/groups/1996845 and/or CPSR Help and Hints on Facebook. Both are industry type.
  4. Vern: Projecting that to this clause based on experience regarding tax and cost accounting situations, ACO questions and comments over the years, and interpretations regarding the general application of prime contract clauses on affiliates and prime contractors where the relationship is not arms length. Application and review of the relationship is included in CPSR reviews. See FAR 44.303(e). Neil
  5. With respect to flowdown to subcontractors, the following benchmark is offered: Lockheed Martin CORPDOC 3C (03-99) for DOE flowdowns is as follows: 952.209-72 ORGANIZATIONAL CONFLICTS OF INTEREST (JUN 1997) (ALT I) (Applicable if this Contract is for advisory and assistance services... With respect to affiliates, I would argue that there are circumstances about the relationship where it could be determined that the prime controls the affiliate in such a way, and/or does not deal with it “at arms length” such that the affiliates work could bar the prime from future contracts due to conflict of interest related to the affiliates work.
  6. Minimum Delivery Order

    Just FYI in the future, if a contract dispute goes to court, focus would usually be on the actual contract language, not discussions or evidence of discussions about the contract language...the contract reads the way it reads, and the court will decide what it means.
  7. Purchasing System Input

    What has your company been doing with such contracts up until now? If Supplier Management actually issues the commitment for such contracts, and there is no other system where they should be entered, and the rest of the company agrees, my opinion is, yes. However, if you do that, you should have some coding associated with all such contracts such that when the system is queried for a data call of purchases in support of a customer contract, they are not included unless they are directly in support of the customer contract required work and not treated as overhead in your system. You should coordinate this project with your Finance function. I have not previously heard of the rental of a building for general employees being entered into the Purchasing Business System records. Nor have I known Supplier Management to have the authority to make such a commitment.
  8. Minimum Delivery Order

    Not sure, Retread. Have not read the cases cited by Lionel Hutz (thank you) and have not done any research about cases law or the regulations Also, not sure about the exact contract language, whether it is ambiguous or whether the regulations clearly answer the question. It is a suggested argument based on general contract principles without knowing what the Government argument is. If the Government responds to such an argument with rationale as provided by Lionel Hutz, and the contract language is clear, it may be that in the end, the $20,000 does not apply to each option. Benjamin should present his concern,obtain Government response and go from there. I was Just trying to offer something for Benjamin to get going with that would supplement his existing focus. In general I would argue that an option is a separate contract that is formed after proper exercise, and should have included consideration to begin with in order for the option to be enforceable. If clearly indicated in the contract and the intent of the parties are not permitted to be examined, in my view, $1.00 could possibly be valid consideration for both the basic and options.
  9. Minimum Delivery Order

    If I were you, I would be asking the customer what they think and why. Knowing that would help you frame your arguments. As indicated above, the regulatory details are massive and tricky. With respect to contract principles, I would argue that YR1 and YR2 options lack consideration without the $20,000 minimum being separately applicable to each. I was confused about the option CLIN. Was YR1 and YR2 option included in a single CLIN? If both option periods are included in a single CLIN, and the $20,000 minimum applies to that single CLIN (which is what it sounds to me you may have been saying), don't you need to wait until YR2 option period is exercised before your "complaint" that the $20,000 minimum was not met?? If YR1 and YR 2 options were each clearly separately included in the initial IDIQ contract, I would argue that unless the $20,000 minimum applies to each each option, exercise of each option lacks consideration and is unenforceable.
  10. The strength of your leverage may depend on FAR 52.216-7(a) alterations in your subcontract regarding who is "Government", "Contractor" and "Contracting Officer" therein, if you care to go over that....
  11. DOD Class Deviations are located at http://www.acq.osd.mil/dpap/dars/class_deviations.html
  12. Private Company Subcontracting to Govt Agency

    If you go that route, there are significant risk issues for a private company to weigh vs. the company standards purchase contract terms. I recall liability, warranty and intellectual property among those risk decisions to negotiate vs. the Government preferred agreement.
  13. Private Company Subcontracting to Govt Agency

    I was involved with this type transaction for a small amount of work at a government lab source under a large prime contract for end items. My recommendation was to protect the company from breach of contract claims by initially flowing everything that would be flowed to any subcontractor under the prime. The lab response indicated they could not comply with the requirements. This was followed by discussions with the Contracting Officer to waive the prime contract requirements for this work and/or provide the work to the company as Government furnished. I don't recall how it wound up between the two, but that was the process.
  14. Subcontractor vs Vendor

    see Wifcon discussion March 31, 2009
  15. LA Times reported that delay may be due to a provision in the bill that permits space based missile defense, which the Obama administration previously strongly objected to.
  16. To get the ball rolling, I offer the following comments from a Supplier Management view: (a) – Seems awkward to me that a statute appears to conditions compliance with certified cost or pricing data based on knowledge whether the bid request is per a procedure under which only one bid is expected. I suppose FAR could require that Government and prime contractors/subcontractors make it known in such bid requests that only one bid is expected. I would expect a change to FAR 52.215-12 Subcontractor Certified Cost or Pricing Data. (b) FAR 15.403-1 competition exception from certified cost or pricing data was “responsible” and “competing independently” and “satisfy express requirements.” It appears like it will be changed to “responsive and viable competing bids.” Supplier Management will eventually need command media to define the changed criteria. (b)(6) I do not really understand the background behind this change. To me, current FAR 52.215-12 implicitly requires that Contractor determine whether an exception applies to a subcontractor bid response. Perhaps there were cases, for example, where some Contractors relied too heavily solely on supplier assertions in permitting an exception, and (b)(6) clarifies that they need to exercise independent judgment.
  17. Regular audits/reviews of transactions, both pre and post award, should be done. Metrics should be maintained on at least the most important criteria, and cause and corrective action pursued. The metric should indicate what level of acceptable non-compliance there may be, if any. the metrics should be reviewed at least quarterly for trends and whether or not corrective action has been effective. Effectively measuring the latter may require a longer review period cycle since correction may not be immediately discernible. The more encompassing the level of pre award review, the less post award review is needed. Some criteria may be done as pre award and some as post award. Poor results in metrics of post awards should push you towards preaward reviews. Keep it simple but effective and tied to chosen CPSR criteria.
  18. Multiple sole source contract awards

    Vern Edwards has provided you with quite an education, then.
  19. Multiple sole source contract awards

    If your organization is a government entity, which was not clear to me, you may disregard what I said. I was under the impression you work for a non-Government organization/firm.
  20. Multiple sole source contract awards

    Hi EDantes, You should understand that FAR is primarily mandates for the Government, not contractors. Contractors may choose to follow all or a portion of those. There are a small number of FAR provisions and clauses in which the word Contractor appears. Those control what contractors are required to do. Your organization should have written procedures guiding this area. Is you plan of action consistent with those procedures? Does your organization have an approved purchasing business system? In direct response to your question, I would say there is nothing inherently wrong with you plan assuming you send both the subcontractors an RFP, make it known that it is a competitive solicitation and request proposals. Awards like you are planning are sometimes made especially in R&D, to receive different ideas and or to protect schedule against one of them not providing the kind of response you were expecting or can use in executing your organization's prime contract requirements.
  21. Subcontractor fee evaluation

    Hi DGJDKO Could you possibly clarify whether you are focusing on cost type subcontracts that required cost or pricing data (use of the word "fee"), or whether you are focusing on fixed price subcontracts (under which profit is applicable, not fee). Are you a Government employee? Not sure I understand your role.
  22. Hi Vern: What is your take on the following? FAR 52.216-7, incorporated in government prime cost reimbursement prime contracts, states that payments will be made to the Contractor in amounts determined by the Contracting Officer (not the prime contractor) in accordance with FAR subpart 31.2.
  23. It would be better if there was a level playing field. If such a requirement is needed, it should be plainly incorporated in a government contracting command media so that all prime contractors and subcontractors are aware of it and it is enforceable. As it stands now, in my opinion, it is not. In the case of a prime contractor that does perform this review for every subcontract invoice, it is at a competitive disadvantage in proposing cost reimbursement work compared to a prime contractor that does not, due to the former's costs in performing reviews for approximately 25 invoices per year for each cost reimbursement subcontractor. Also, there should be some uniform government contracting command media details/checklist that provides guidance on how to comply with such a requirement.
  24. Hi Subconmgr It would help if you could clarify what contract terms are included in your company's prime contract or subcontract, and what contract terms your firm flowed to the subcontractor regarding invoices and payment. In my experience, most cost reimbursement payments to subcontractors are supported by periodic verification that the subcontractor has an approved accounting system for cost type contracts. Rarely are such invoices routinely sent from the prime to the Government for review. The total allowable costs are resolved during closeout. During performance, such approved accounting system would require subcontractor to apply any forward pricing rate agreements to future invoices, and submit retroactive adjustment of previous invoices to reflect any final rate agreements for prior years. Perhaps there is a contract clause between your firm and the subcontractor that provides for this? I am not aware of any FAR clause that requires that a "buildup" be provided as part of the invoice, or that such "buildup" is required to be disclosed by a subcontractor to a prime contractor. The subcontractor may choose to do that if they permit prime contractor access to its books and records. However, many subcontractors do not, and are not required by FAR to provide such access to a prime contractor unless they so agreed to in the contract.
  25. Based on my understanding of the facts, it appears that subcontractors are being requested to perform a cost analysis. I am not aware of any requirement that a bidder perform a cost analysis of subcontractors in response to an RFP. An analysis, yes. And, a requirement for submittal of certified cost or pricing data.Prime contractors and first tier subcontractors should perform a cost analysis of subcontracts after subcontract selection, before or after award.There is always the possibility, and it is preferred, that there be no submittal of certified cost or pricing data and no cost analysis when there is competition.