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Neil Roberts

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Posts posted by Neil Roberts

  1. Slippery slope here. If the prime did an analysis of the proposal, did the analysis support the proposed? Was there a negotiation plan? If so, what are the facts that were not disclosed that would reasonably expect to affect price negotiations (and the analysis and negotiation plan) significantly? Suggest you put that story together and ask the subcontractor for a response.     

  2. My view is that the GAO and Agency result should be no different even if aging baby boomers were substituted for millennials. Rationale: The deficiency was state to be a recruiting process that was based on job postings, college recruiting at one school, employee referrals and unclear timing as to when a recruiting firm would be engaged, all of which appears to be objective and rational and unrelated to whether it was millennials or baby boomers.   

  3. I also expected that your company's business practice include a requirement for a Certificate of Insurance specifically for automobile insurance. It does not appear that your company's prime contract requires automobile insurance from your company or from subcontractors. And, I either overlooked or misinterpreted because I didn't read anything about a Certificate of Insurance being required by your company's contract for any party. Also, I am not aware that the definition of a Certificate of Insurance includes automobile insurance on a mandatory basis.Therefore, I am not following your "view." I definitely sympathize with your situation with the program office and the subcontractor. Unless this subcontractor is a mandatory source, you could consider disqualifying the subcontractor and go with the next qualified bidder if you included your "view" in the bidding document. I don't know if you are also the contract administrator for your company. If not, you should obtain the contract administrator's view as to the prime/subcontract requirement.  You could also consider documenting the procurement file with signature of the PM accepting the prime contract risk of non-compliance as determined by your view. You probably should escalate with your manager before you do that. Other possibilities is to ask for help from your company's cognizant attorney, whatever that process is and/or request that the subcontractor provide supporting documentation for its view i.e., a copy of any of the prime contract schedule and terms and conditions during the last 10 years under which work was performed and the corresponding contract terms and conditions from its customer. This assumes your "view" is reasonably sustainable by actual prime contract language.  

  4. Regardless of any specific prime contract requirements, in cases where licensed vehicles will be used in connection with performance of the work, I would have expected that your company's business practice would incorporate a subcontract requirement that a subcontractor carry and maintain Business Automobile Automobile Liability Insurance for bodily injury and property damage for a specified not less than dollar limit.

  5. 3 hours ago, animalspirits said:

    The agency's Office of General Counsel (OGC) also had published written guidance on the topic of when the agency could receive gifted personal property from a non-governmental organization.  While the hypothetical company in question may be considered a "prohibited source" (because it is a potential contractor) in the context of this OGC guidance, the guidance states that a gift could be accepted from a prohibited source if a three-part test is met (e.g., percentage of contractor's business with the agency, timing of gift in relation to solicitations).

    Assuming that OGC finds that the three part test is met and the gift may proceed, are there any other regulatory or legal issues that would prevent the contractor from competing in upcoming procurements?  I have concerns regarding the appearance of impropriety, but I need to base my analysis on cited sources.

    The contractor's own written policies  that may include avoiding an appearance of conflict of interest should be reviewed to determine whether the "gift'" may be prohibited by its own policies. 

    My view is that the OGC and Agency, even after acceptance of the gift, does not by itself insulate a contractor from corrupt intent focus in offering the gift. See for example, 18 USC 201 Bribery of Public Officials and Witnesses. Subparagraph (b)(1) is as follows: 

    (b) Whoever (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or
    promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent...
    You may wish to take a look at the U S Office of Government Ethics Compilation of Federal Ethics Laws https://www.oge.gov/web/OGE.nsf/All Documents/0BC1FF0EB760D84A85257E96006A9256/$FILE/Compilation of Federal Ethics Laws (2015).pdf?open.
    I see the gift of (used?) furniture as providing an income tax deduction. Such a tax benefit could have been accomplished through a donation to charitable entities. Donating it instead to a government agency that a contractor wishes to do business with does not sound angelic to me or a sound business practice.


  6. DFARS 215.404-1(b) appears to apply to both commercial and non-commercial items as indicated. (b)(i) appears to apply to both commercial and non-commercial items (obtain market research pricing) and if that fails, my view is that (b)(ii) instructs only what to do with respect to commercial items, including but not limited to those exempt from cost or pricing data.  

  7. Michael, I am in no position to speculate about what might be acceptable to the Government. If I was filling out this form, I would first call the CO and have a discussion about why patent or royalty clauses or questions are being asked in closeout of a task order (and not the entire contract.) It wouldn't surprise me if a pro forma closeout was sent which covers all contingencies, including those that do not apply to all contract/solicitation situations. I would explain that I could not locate any contract or binding solicitation provision regarding this topic and ask the CO to help by providing a specific contract or solicitation obligation. If none was provided, I would enter "N/A" with the above explanation.   


    On 2/2/2018 at 1:31 PM, nelsoji said:

    Am I to read that to say that if there is an exemption to requiring certified cost or pricing data - the government could rely on prior prices paid by themselves for similar items to determine price reasonableness?  That portion of the clause goes on to talk about commercial items so I am trying to figure out if this is aimed more at items that the contractor is trying to deem a commercial item or if it could be for a non-commercial item that meets an exemption.  This could obviously make it much easier to establish price reasonableness on re-competes where a waiver exits but trying to see if I am reading it right.  Thoughts?

    Hi Don

    My reading of the post question (in bold) above leads me to ask about whether your reference to FAR 15.404-1(b)(2)(ii) technique applies to non-commercial items. Do you read it that way? Could you please clarify your thoughts? I am not sure whether the reference in subparagraph (ii) to commercial items was intended to alleviate doubts about whether it applies to commercial items or was intended to state that it only applies to commercial items.

  9. It would help if you provided more details.

    1. What Agency of the Government issued the contract?

    2. Did you receive a pro forma closeout request from the Government. Is there an identifying form number associated with it?

    3. Does the contract include any FAR 52.227-xx, DoD 252.227, or other agency .227 clauses? If so, which? If not, suggest you consider answering all  contract closeout patent, copyright or royalty questions with "N/A" unless these type clauses were included in the solicitation, in which case you should study it further as to your company's response to the solicitation,  and its obligation.

    4. Was the contract competitively awarded, negotiated or sealed bid type?

    The $250 is incorporated in FAR 52.227-6, which is a solicitation provision. There may not be much interest or offhand knowledge about why this amount has been unchanged since 1984. You can research that in the Federal Register for that time period. Some rationale of the Government's interest in royalty is included in FAR 52.227-6 and FAR 27.202-5  

  10. 8 hours ago, Retreadfed said:

    Thanks for the clarification.  Of course, the language you quoted is from DFARS 252.244-7001.  Thus, this is a contractual requirement under the contracts in which that clause is inserted.  Moreover, it only deals with surveillance of 1st tier subs.  It does not go to second tier subs.  Therefore, this language would not impose any obligations on a prime contractor in regard to a 2nd tier sub.  Also, because this is only a DFARS clause, it has no application to contractors who do not do business with DoD.

    Retread, I don't believe I said a prime contractor is required to directly manage its 2nd tier subcontract. If you are asking me for such examples, I have none to offer. I thought I said "prime contractors should generally 'manage its subcontracts' by taking action to include those in CPSR review requirements, if the prime may be subject to a CPSR." There is nothing in my language that suggests that a prime contractor's 2nd tier subcontract is the primes (its) subcontract. If you are asking for examples of how a prime should generally manage its subcontracts under FAR contracts, see FAR 44.303 (g) and (j) for example. 

  11. Sure, Retread. CPSR requirements include "Maintain subcontract surveillance to ensure timely delivery of an acceptable product and procedures to notify the Government of potential subcontract problems that may impact delivery, quantity, or price." What is your company doing to comply in post award surveillance of subcontracts? Example: What does the purchasing, business or accounting system do identify and monitor critical part supplier financial health during the performance period? 


    On 1/19/2018 at 4:59 PM, Retreadfed said:

    Neil, please see the ASBCA decision at http://www.asbca.mil/Decisions/2016/59508, 59509 Lockheed Martin Integrated Systems, Inc. 12.20.16.pdf.  In light of this decision, what obligation does a prime contractor have in regard to 42.202(e)(2)?

    Hi Retread. I think Vern's post answered your question. I think the case you cited struggled with what "managing a subcontract" means even if 42.202 (e)(2) was incorporated in the contract. Absent specific "managing a subcontract" requirements incorporated in the prime contract, I would say that prime contractors should generally "manage its subcontracts" by taking action to include those in CPSR review requirements, if the prime may be subject to a CPSR.   

  13. FAR Part 42.000 guides Government oversight of a prime contract and in rarer cases, a subcontractor. Was it the Government that advised your firm about the non-performing subcontractor? Your concern about (e)(2) language is understandable. My view is that a 2nd tier subcontract is not "its" (your firm's) subcontract and therefore your firm is not responsible for managing the 2nd tier subcontract. Perhaps the Government is providing such oversight? Nonetheless, if in managing your 1st tier subcontract's important milestone performance/progress, your firm did or should have been aware of non-performance by the 2nd tier subcontract that negatively affected the 1st tier subcontract performance, it could be said your firm did not adequately manage "its" subcontract.   

  14. 1 hour ago, Vern Edwards said:

    How would the government cover a contingent liability of unknown amount with appropriated funds? How would the agency avoid violation of the Anti-deficiency Act?

    Who would be authorized to sign the bailment on the part of the government? 

    What laws and regulations might apply to such a transaction?

    Vern, those are good questions and I would hope some of the government side experts here could respond. Being only from the industry side, I would propose an industry commercial bailment agreement, wait for the Government response and negotiate to mutual agreement. Governing law includes contract/common law. See, discussion at  http://smallgovcon.com/claims-and-appeals/government-damages-contractors-equipment-board-awards-costs/


  15. From an industry view, if you are contemplating that a contractor furnish the services, there is no enforceable option unless there is a price for each option...it is just a contract to maybe make a contract. Accordingly,  it does not seem as attractive as it should be to potential bidders or in the Government's interest in getting the best prices.  Suggest you obtain bids for a base contract with priced options, include a standard option exercise clause, and check with the other agency when it is time to exercise the option. It is up to them if they want to exercise it. If not exercised, there is no commitment.To clarify, if you intend to purchase these services from another Government Agency, it seems to me my suggested approach may be applied unless it is not compatible with the practice among agencies.

  16. 1 hour ago, muddypuddles said:

    Instead of requesting offerors to propose a specified escalation rate on their labor rates for the out years (remember, I am also allowing offerors to propose other than), would you prefer I request that you submit your DCAA approved rates with your price proposal?

    Muddy, If they have DCAA approved rates, and they apply to this transaction, they should be using those rates as a matter of course. There is no need to remind them. Not really sure why you wish to analyze labor rates and hours, or whether the proposed suppliers would even submit them to your firm. Rates are competition sensitive and current cost or pricing data does not apply. You say the transaction is FFP. Just get a one number price for the base contract, a one number price for each option, add them together and compare these total prices for each bidder.     

  17. Did you terminate the subcontract and already include payment for the cancellation charge? Did you issue a final change notice that closed out the subcontract at the  amount already paid? Did you include FAR 52.216-7 in the subcontract suitably modified to indicate that the Government determines final allowable cost and payment? Did you request a Government audit of the subcontractors termination claim and allowable costs? Did the subcontractor grant your firm access to the subcontractors financial books and records and did your firm do a review of allowable costs that found the charge to be allowable? What was the reasoning?

  18. With respect to (1) above, generally you are correct. However, there may defenses to non-performance. For example, "impossibility of performance" may provide a complete defense non performance. You can research that on the internet. My example: your company completely left the field of service it was in and now only produces goods instead. I will leave (2) and (3) to others.