Neil Roberts

@tjsmith1957...so, is your company tax exempt or not?

If I were you I would send the supplier a written communication asking (per contract clause FAR 52.212-4, Termination for the Government's Convenience clause), for a written description and dollar total for the percentage of the work actually performed, plus reasonable charges per its standard record keeping system that have resulted from not being able to complete some of the work.

Looks like a termination for convenience should have been issued by the Government awhile back when there was a schedule delay, at the Gov's behest that removes the ability of the contractor to remove/install said delivery this annually appropriated year.

What contractual cause has been identified for a T4C?

@ax12901, The GAO Office of General Counsel, GAO: A Descriptive Guide states the following: The bid protest process at GAO begins with the filing of a written protest. Unless the protest is dismissed because it is procedurally or substantively defective (for example, the protest is untimely or the protest fails to clearly state legally sufficient grounds of protest), the agency is required to file a report responding to the protest. The protester then has an opportunity to file written comments on the report.

The shorter answer may be to read the Department of Defense instructions for filling in the form, and then make up your own mind about it. See https://www.acquisition.gov/dfarspgi/pgi-253.219-70-dd-form-2579small-business-coordination-record.

@Christal, more information is needed. 1. Is the BPA a FAR Part 13 BPA 2. Are the written terms of the BPA such that Seller is required to fulfill each call with the price and delivery schedule (and with other terms )that were pre-determined by the BPA at the time it was initially established, or 3. Are the written terms of the BPA such that each call price and delivery schedule must be individually negotiated and accepted by Seller and Government at the time Seller is notified there is a call. 4. How else would you describe it?

sounds to me that they were ready, willing and able and the Government caused the failure to install.

What are these factors? Why do you think the government should not pay the entire FFP?

My opinion is "yes," if the estimated value of all the calls together (or appropriated funds) are over the micro-purchase threshold at the time the BPA is established. That to me is most consistent with the FAR definition of an acquisition: Acquisition means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

You are probably thinking from the government view, and I was hoping that the Government would provide such guidance. However, from the contractor side, there are a few common law concepts that are applicable in contracts even if not specifically incorporated. They could afford a contractor a defense for delaying performance or even cancelling the contract due to a shutdown.

What does "the" contract consist of? Documents, clauses, Statement of work, etc. Was there a meeting of the minds, describe what was sold and bought in "the" contract, what went wrong and what is the factual basis for default or termination, or is this just an intellectual exercise?

Your prime contract should include 52.244-2 under which a T&M subcontract requires customer consent/advance notice. The information the customer "wants to see" is stated therein. I have never heard of a "sealed package" but hope it meets all information requirements of this clause.

A certain amount of the under run may be due to lower cost incurred having nothing or little to do with a decrease in the requirements. How is this contemplated to be handled by the government and/or the contractor? Are such costs required to be segregated accounting wise? lt is not clear to me if it is understood that there is no rebate of costs actually incurred, just a change in the estimated cost. Did the contractor notify the government? Do you wish to do this now or are you facing spending time and energy with a contract of vacillating increase or decrease in requirements? How much fee dollars are really potentially at stake? Is it worth it?

For your information, I am providing the following: 1. 31.205-7 Contingencies. (a) "Contingency," as used in this subpart, means a possible future event or condition arising from presently known or unknown causes, the outcome of which is indeterminable at the present time. (b) Costs for contingencies are generally unallowable for historical costing purposes because such costing deals with costs incurred and recorded on the contractor’s books. However, in some cases, as for example, terminations, a contingency factor may be recognized when it is applicable to a past period to give recognition to minor unsettled factors in the interest of expediting settlement. (c) In connection with estimates of future costs, contingencies fall into two categories: (1) Those that may arise from presently known and existing conditions, the effects of which are foreseeable within reasonable limits of accuracy; e.g., anticipated costs of rejects and defective work. Contingencies of this category are to be included in the estimates of future costs so as to provide the best estimate of performance cost. (2) Those that may arise from presently known or unknown conditions, the effect of which cannot be measured so precisely as to provide equitable results to the contractor and to the Government; e.g., results of pending litigation. Contingencies of this category are to be excluded from cost estimates under the several items of cost, but should be disclosed separately (including the basis upon which the contingency is computed) to facilitate the negotiation of appropriate contractual coverage. (See, for example, 31.205-6(g) and 31.205-19.) 2. If your focus is (c)(1), you should be able to articulate in detail in relation to each high risk supplier, in writing, the critical threat and vulnerability and how it is to be limited by what expenditure and $ amount for what. After all, you are required have a thorough risk management plan. 3. I am surprised that it looks to me like your company put an additional arbitrary dollar amount into its prior proposals, and on the negotiation table, and the government just bought into it without any comment or question or rationale from the contractor?? 4. I don't think there is a magic "number" that anyone has that you could or should just borrow outright for your company and its statement of work requirements. 5. It was not clear to me whether the 10% was an internal management challenge that comes out of the amount negotiated with the customer or whether the customer pays for it. If your large company has been successful in the past with whatever it has done, maybe there is no reason to change.

The date the paperwork was signed and the date the initial proposal is due is not, in my opinion, relevant to your quoted sentence. You may wish to do some FAR/CFR research as to the term "submits" and verify that your company "submitted" a written self-certification and price on or before September 2nd. There may be situations where the time of day of the submission is important. For example, if you successfully "submitted" on the West coast at 9:01 pm, and the requirement is interpreted by East coast time, it was September 3rd on the East coast at the time of submission and your firm does not qualify.

From the contractor side, I would gladly furnish the contracting officer an easy to understand chart displaying the rationale and dollar delta of each element between the cost or pricing data and the price proposed. However, I would not resubmit a Table 15-2 proposal.

@JGJohn, there seem to be multiple aspects of your quest. To address some to begin with: 1. The prime is required to flow all prime contact included mandatory flowdowns to the supplier regardless of supplier contract type. In addition, the prime should flow any and all other provisions needed to ensure that the prime contract obligations are met. 2. There is nothing that I am aware of that prohibits a prime contractor from flowing a cost type contract to a supplier, which normally includes fee. Not clear to me what you are worrying about when you say "fee on fee situation." Is there a particular FAR or Agency regulation you have in mind, or ??? 3. Please clarify what DCAA concern there is with a FFP supplier contract. 4. What did the prime contractor propose to the government for this subcontract work, if at all? 5. What do you mean by FFP Award Fee subcontract? This sounds contradictory...paying a supplier a firm fixed price then awarding an additional amount for doing its job.

For a detailed article regarding company identity issues you may start with https://sgp.fas.org/crs/misc/R44490.pdf

I don't know. But you may have success ordering a Dun & Bradstreet (D&B) report. https://docs.dnb.com/credit/en-US/viewing_a_report/ownership

it sounds like these "items" may not be an actual solicitation criteria and it does not include protest filings and results as an actual stated solicitation criteria. I am assuming there is nothing in writing that controls this type criteria?

I can conclude that they are litigious in nature, which has been described by synonyms such as combative, contentious, disruptive and argumentative. I believe I take that into account every day in dealing with people and companies. It is expensive and mentally unhealthy compared to other options. The government would need to figure out how to define that in order to take that "quality" into account such that it is objective.

Based on the posts, it sounds like a change in the right should be considered in this regulation/statute. For example, in California, you cannot file more than 2 Small Claims court actions for more than $2,500 anywhere in California in a calendar year even though providing a civil remedy for peoples' grievances is generally ingrained.

Offhand,my bent is that social and economically disadvantaged U.S.citizen(s) owner(s) of small business that would not qualify to be afforded the rebuttable presumption, could apply for the the 8(a) program benefits and/or a set aside work and be denied...

@Atlas STS, this is why I previously said : does your company have a certified public accountant (CPA) report that it meets Generally Accepted Accounting Principles (GAAP)? Having such a successful review is about as good a warm and fuzzy as you could reasonably expect, and I think you will find many small businesses doing business with the government have done so. Spend the money.