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Neil Roberts

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Posts posted by Neil Roberts

  1. Beantown, you stated that the 2018 NDAA "provides a class deviation." I see you are new. Class Deviations are creatures of Agencies, like DOD. I did not see any language in section 811 that states it is a "class deviation."  Also, as expected, the DOD Class Deviation language about thresholds for the prime and subcontract is consistent with the language in 10 U.S.C. 2306a regarding prime and subcontract thresholds before and on or after June 30, 2018 and prime contractor requests to modify the threshold.

  2. It would be better if you indicate what data rights clauses are proposed. And, generally speaking, the Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data to be delivered under a contract by marking the deliverable data subject to applicable restrictions. The markings can be challenged by the Government. Can you provide the data item description for a Technical Progress Report? Not clear to me what is required. I am imagining just indicating progress towards milestones i.e., completed preliminary design review.

  3. Subparagraph (c)(2) requires a lot of thought about what the prime contract obligations are and you may not be given a copy of the prime for your perusal. A prime should include mandatory flowdown terms and conditions and other terms that are not so obvious to a subcontractor. 

  4. With respect to requirements between prime contractor and subcontractor, some prime contractors wait for FAR changes to occur (or Agency Class Deviation requirements that are incorporated into its prime contract). To the extent they do that, my view is that it puts the prime contractor at risk of being accused it does not comply with "the law." I have heard it said that Contracting Officers are not authorized to apply procurement "laws" that are waiting for  incorporation as FAR requirements. 

  5. My view. From your facts, it appears clear that the Government believes it is no longer contractually able to exercise the option, hence the talk about bilateral agreement. In my world, two parties can successfully find a contractual way to agree to the delivery of production quantities. You and/or the Government may have a sound basis to reach agreement on a different price. It is not clear if your company’s performance contributed to the delay in exercising the option. For example, if first article acceptability was delayed past the contract schedule date. This may provide an argument by the Government that it was not able to exercise the option until now. Also, not clear if there are any extenuating circumstances on the Government side such as funding and shutdowns that delayed the exercise of the option. Hopefully your company will also consider whether it still wants or is capable of performing production work. Finally, it is not clear from the facts whether or not additional un priced quantities may be ordered by the Government under an existing contract clause.

  6. Difficult to say what contract options there are without knowing all the contract terms and conditions. In general, it sounds like your client may sue the prime for breach of contract for 100% of the work unless the contract terms permits a unilateral change that reduces the work scope . From a business standpoint, it looks like under the given facts, your client has only completed 2/3 of the work. If that is the case, another option is to sign the task order that reduces the contract work, get paid for the completed 2/3 work and work with your prime to obtain more contract work in the future.

  7. In my experience, both bottoms up and top down estimates are capable of being analyzed further before a bid is submitted. Neither one is necessarily "the gospel." Management may believe some challenges can be had and may for example, change some estimates to a lower amount based on information not necessarily known to the "bottoms up" people, but add a lesser sum back in to management reserve if possible. Some labor may be susceptible to a ambiguity as to the depth of work needed to comply with the customer statement of work.There also seemed to be many occasions in my experience where where the "customer" and/or advanced business marketing about customer funding gave rise to a range considered more winnable. Just saying.   

  8. 1. It sounds like the program office may have induced, requested or approved the matter.

    2. What is the total cost for the service? It may not be worth a CO's pay scale to spend much time with this. If you think it is fraud, ask for a DCAA audit.

    3. It is not clear to me that the contractor is permitted to purchase under AF BPA's.

    4. It sounds like it could have been an emergency while the test was in progress. Stopping the test support to obtain bids for cell service and/or research and obtain permission to use the AF BPA may not have supported the test or your program office.  


  9. Perhaps you can provide additional info. Does "customer" mean contractor. Are you a Government employee. Did the "customer" state they were going to bill the ODC CLIN? Did you ask the customer to provide its company financial system definition of ODC? What type contract is it...FFP, cost type, etc. What is the dollar value involved? Is it true about AFNET Wifi inability? Do you agree that the sites are needed to perform the test? What, if anything does the contract state about the test? 

  10. ARF, you may wish to focus instead on subcontractor and prime warranty cost itself, which I am guessing may be more money than profit on  subcontractor's warranty costs. Will the government contract include a warranty provision? Does the prime's financial accounting system already include warranty for the end item? If so, the prime could be asked whether it is including warranty requirements in purchase solicitations and to delete such a requirement and all associated separate charges by subcontractors for that.

  11. Can a CO add a FAR clause to a GSA schedule task order award that was not in the RFQ, nor part of the GSA schedule contract itself? If not, what recourse does the apparent successful vendor have if it believes the addition of the clause adds substantial costs? (bolded language added)

    Was this a competitive situation? If so, adding a requirement (that adds or subtracts value) to an award that was not included in the government solicitation for the award, could be challenged as unfair to the other bidders.

  12. 53 minutes ago, Zag2009 said:

    I was hoping for past precedence that would support our argument that the fee should be based on the risk of the originally proposed work, but it appears we will just have use our best negotiation skills to justify the higher fee.  As always, thank you for your input.

    There is some Government precedence for thinking about what to do with fee weighted guideline analysis when there may be actuals. See https://www.gpo.gov/fdsys/pkg/FR-2016-10-21/pdf/2016-25332.pdf.

    This case is still pending a final report.

  13. I would argue that  (1) the proposed fee was offered at a time when little or no actual costs could have been known, and in fact, were not known (2) although the work is complete, you do not know the actual cost of the work because you didn't actually collect or record costs that were only incurred against that change (of course this has to be true). Therefore proposed fee on proposed costs are still reasonable.  

  14. I wouldn't agree to paragraph a. It flies in the face of cost reimbursement allowable costs per FAR 52.216-7. Not sure why you are having a problem with paragraphs  b. and c., as they seem consistent with FAR 52.216-7, which I would expect be flowed to your firm with alterations of the parties such that you the subcontractor shall comply with submitting rates to the Government for its determination. I would verify the exact prime contract wording of paragraph a. Pay close attention to analyzing the wording, including any language that substitutes parties, whether the wording makes it a mandatory flowdown or whether it applied only to the prime contractor. Even if it clearly applied to a subcontractor with the given rates, it seems to be over reaching by the Government. You may wish to complain to your representatives in Congress and or the Small Business Office or decide whether to walk away from the work or accept the business risk. 

  15. It would be helpful to know in each case how the direct and indirect labor was bid on the government contract, whether the contractor is subject to Cost Accounting Standards, whether the contractor has submitted a Disclosure Statement and whether it was reviewed by DCAA. Offhand, from the way your post is written, I would suspect the practice you describe is questionable.

  16. My interpretation of the clause language is the same. However, does the contract specify funding by CLIN? Also, your post seems to be worded as if you are concerned with line items, not total funding under the contract. It is also not clear what "we had some CLIN's go cost in excess" means or is relevant. Does your contract have estimated cost amounts per line item???  I would have expected that you send a notice when costs expected plus actual cost incurred under the contract exceed the total funding allotted to the contract. The clause does not contemplate line item estimated cost or line item funding. Perhaps your actions (talking about CLINs) are confusing the PCO or your contract specifies line item funded amounts.

  17. 3.9.3 of the SAM Guide https://www.sam.gov/sam/SAM_Guide/SAM_User_Guide.htm#Yourresponsibilities

    "You are responsible for updating all of your registration information as it changes…

    ·  You must renew and revalidate your registration at least every 12 months from the date you previously registered to maintain an active status in SAM. However, you are strongly urged to revalidate your registration more frequently to ensure that SAM is up-to-date and in sync with changes (such as an address change) that may have been made to your D&B or IRS information.  If you do not renew your registration, it will expire.  An expired registration will affect your ability to receive contract awards or payments, submit assistance award applications via Grants.gov, or receive certain payments from some Federal Government agencies.  Please be aware that some federal contracts or assistance awards may require you to revalidate your registration more frequently than every 12 months.  Please review the terms and conditions of your federal award carefully to ensure what is required to be compliant."

    If you do not re-validate when critical information changes, and the non current information is relied on by another party to their detriment, on a worst case basis, you should be able to dream up some potential liability there, especially financial information. 

  18. On 3/30/2018 at 6:29 PM, ElBarz said:

    We already submitted questions and there was no clarification.  Only that they were separate items to submit for the proposal.

    Sounds like you now have your marching orders to comply with the paragraph in question and all other related requirements. I contemplate those to be FAR 52.219-9, DFARS 252.219-7003 and possibly one or more Navy Marine Corp Acquisition Regulations Supplement (NMCARS) clauses. Your post did not indicate which clauses, if any were included in the solicitation terms. There are some differences between those clauses and the so called socio-economic paragraph in question. For example, the socio-economic paragraph appears to be unique in its reference to HUBZone and NAICS. Also it includes an option “for participation by a prime contractor, joint venture partner, teaming arrangement member, or subcontractor.”  Perhaps it means that you may include in your proposed subcontracting plan, targets and goals developed by some of your non-small business subcontractors for their subcontracting. If so, you may wish to obtain such targets and goals from them in their proposals to your company and obtain their permission to use the data to increase your company’s small business plan targets and goals. This would give your company more credit for compliance.

    See 13 CFR Part 121 and 125 at https://www.govinfo.gov/content/pkg/FR-2016-12-23/html/2016-30874.htm