Jump to content

Neil Roberts

Members
  • Posts

    914
  • Joined

  • Last visited

Posts posted by Neil Roberts

  1. @CuriousContractor_22, My argument in response is as follows:

    Task Order named awardee should request an arms length proposal from the subcontracted party and negotiate the fair and reasonable rate to be paid for its work by Task Order awardee. Any applicable GSA MAS existing rate for the subcontracted party should be considered in coming to such agreement with the understanding subject GSA MAS rate probably has profit in it and the subcontracted entity proposal and the agreed to rate is to be at cost unless otherwise permitted per FAR 31.205-26. 

    A teaming agreement is irrelevant unless it was the task order awarded party. 

  2. On 3/24/2024 at 9:11 AM, Don Mansfield said:

    It's a common tactic by primes, and I'm sure many subcontractors put up with it. It can take a lot of time and effort to determine which particular clauses should be flowed down and mistakes can be made, so one can understand why primes do this. 

    You could go back and forth with the prime on each clause that you don't think applies and some subcontractors do that. I think a more elegant solution is to get the prime to agree that, notwithstanding the list of clauses in the subcontract, the only clauses that apply are those that are 1) included in the prime contract and 2) require inclusion in your subcontract.

    In my experience, that above is unlikely to fly well with major prime contractors for various reasons including:

    1. don't have time to deal with addressing this as there may be schedule impact to the prime for doing so (delay in placing the purchase contract with you due to company required lengthy preparation to negotiate with you over the status of perhaps  a hundred or more clauses).

    2. "Business" clauses are not prohibited by a prime contract for inclusion in purchase contracts but are not included in the prime contract. Think of it as the business boilerplate often found in non-government contracts.  

    3. The above position runs the risk of simply going to the next bidder who may have a higher purchase price. Factoring in the time it would take to deal with you in what is seen as a normal business practice by the prime (with dubious results probable), you may no longer be best value. Some exceptions are acceptable provided adequate rationale accompanies it.

    For your first government contract review, it seems to me your company should engage an experienced subcontract person to review it alongside you.

    If you wish to proceed with the above suggested approach, please be sure you have your top management's approval so that they are not surprised (and you are not embarrassed or at risk) by any phone call from a prime contract executive or program manager regarding the above suggested approach and your company's viability as a supplier. 

  3. 2 hours ago, Needforspeed said:

    What if DCAA already agreed to the now current year target rates which are different from the ones first proposed? Agree about disclosing it - of course. But is there an actual obligation to amend your pricing if required to sign a C&P certificate - if the government doesn’t ask for a final proposal revision? 

    I would ensure the disclosure was in writing and states that the most current data is that there now revised rates agreed to by DCAA and Contractor. Most medium to large size contractors that I have worked for or dealt with over the years have a written procedure (which may be required for an approved procurement system) and/or practices to do a final sweep of current cost or pricing data and whether you want to call it courtesy or required, will provide a revised proposal even if only limited in elements or even just the bottom line delta dollars and more, if asked to do so. This can also provide a company with more confidence against any later allegation of defective pricing. Some such contractors even go the length of including a laundry list of the data items disclosed and a reference to the document description and date that did so, and reference the laundry list in the Certificate that is signed.  

  4. If the provisional billing rates are valid only for the current FY(subject to adjustment at year end), how does this work for proposed work that extends into another FY or two? Even if the work is to be performed only during the current FY, how would this work if the proposed increased your base enormously? Would you not think there should be some adjusted rates in the proposal response if current cost or pricing data applied? Maybe you could clarify the details of the  Provisional Billing Rate Agreement.

  5. @Salus, ownership information of a JV may be available quickly through products of one or more companies such as Dun & Bradstreet (from the prime contract side, I can tell you we used such reports extensively in evaluating suppliers).

    If you have not already done so, I suggest you review SBA final rule dated April 27, 2023. It is 54 pages including clarifying JV certification requirements, JV limitations and many other changes.  Proposed JV changes to FAR are in process. See https://www.federalregister.gov/documents/2023/04/27/2023-07855/ownership-and-control-and-contractual-assistance-requirements-for-the-8a-business-development 

  6. On 2/29/2024 at 4:39 PM, Salus said:

    we were unable to find documentation for one of the businesses, and another business was apparently just a new small business based on the SAM.gov registration.  Because we were expecting a specific large business to try to JV with a small business to access the contract, we did some digging into the two businesses that were not clear in their origin. With some significant sleuthing, we were able to find that the 'new' business was actually a JV, but who did not provide their ownership information in their SAM.gov registration information or FAR report. Some of the pertinent information that would have been more easier to find had the ownership information been included was that the small business member of the JV was founded by a director level employee and another senior manager of the large business while they were still employed by the large business, which would have raised a flag regarding potential affiliation.

    @Salus, Perhaps I do not understand the situation you are describing. I don't know why an awardee under multiple awards can not submit a protest within 5 days asking for formal determination of the small business status of another awardee based on "information and belief." You seem to have relevant  information about the status. But, as a practical matter, if the determination is made that the other awardee was not qualified for the status, the Agency would just award to the next qualified status bidder in line. So, why would you protest no matter what information you have, and what SBA process is there to fix???

  7. Other questions include, (a)what government department or agency, if any, issued the contract and/or RFP ITQ?(b) did someone apply for government approval of these costs if this is a government contract? (c) is this a commercial contract between two companies with no government involvement? (d) what is PWS? (e) is this a fixed price contract type, flexible contract type, or?? (f) did the RFP or quote state anything about this (g) is this transaction competitive? (h) what is the estimated dollar value of the questioned cost compared to the task order amount?  

  8. 20 hours ago, Retreadfed said:

    We don't know all the facts

    Agreed. Specifically we don't know if the subcontractors' proposed/disclosed an hourly rate and indirect costs or an hourly selling price only. We don't know the details surrounding the prime contractor's justification/review of the subcontractors' proposed and we don't know if the government poster bench marked either or both. My take on FAR Part 31 is that it is associated with cost analysis. I don't agree the government needs to do a cost analysis of hourly rates, but I agree with what I think is your bottom line, that whatever the government comes up with should be defensible as reasonable.

  9. On 2/21/2024 at 5:01 PM, Neil Roberts said:

    You should ask the prime to make a presentation to you with in depth details regarding the justification for salary.com being the only source for comparable prices, and a complete review of each and every detail input into salary.com by the prime that led to the results proposed. Also they should provide the job description of each position from each sub. In addition, you should tell them how many subcontract dollars your analysis yields vs the total for each proposed subcontract.

    @FLContracts, Additionally, from the prime contractor you should request a copy of the memorandum supporting the subcontractor proposed rates and a copy of the SOW and RFP/ITQ sent by the prime to each subcontractor. Should you wind up not finding the proposed rates supported enough, you may wish to consider proposing adding special surveillance contract requirements to the prime contract for each of the subcontracts that have questionable rates . The surveillance should include but may not be limited to advance notification and prior consent for each such subcontract/change.

  10. 3 hours ago, Retreadfed said:
    13 hours ago, Don Mansfield said:

    FAR 31.205-6 refers to the cost to the contractor for compensating its employees. FAR 37.104 refers to personal service contracts awarded by the Government. Two different things.

    Thanks, Don.  You beat me to the punch.

    @Retreadfed, still unclear to me what you are trying to tell the poster. Are you saying that the poster gathered comparable labor rates are not valid with respect to a prime contractor's subcontracted labor rates unless:

    "Factors that may be relevant include, but are not limited to, conformity with compensation practices of other firms-

    (i) Of the same size;

    (ii) In the same industry;

    (iii) In the same geographic area; and

    (iv) Engaged in similar non-Government work under comparable circumstances."???

    In any event, the issue is the prime contractor's review, evaluation and substantiation of its subcontractor proposed rates.

     

  11. @Retreadfed, could you elaborate about the point in your post reference to FAR 31.205-6(b), which concerns personal services? The FAR definition of personal services is: "Personal services contract means a contract that, by its express terms or as administered, makes the contractor personnel appear to be, in effect, Government employees (see 37.104)."

  12. You should ask the prime to make a presentation to you with in depth details regarding the justification for salary.com being the only source for comparable prices, and a complete review of each and every detail input into salary.com by the prime that led to the results proposed. Also they should provide the job description of each position from each sub. In addition, you should tell them how many subcontract dollars your analysis yields vs the total for each proposed subcontract.

  13. 19 hours ago, FLContracts said:

    I dove into negotiations with the prime contractor and was able to get them to reduce some of their proposed rates, which will result in decent cost savings.

    Just a point of information regarding reducing proposed rates and quantifying proposed cost savings. Proposed contractor rates are included in overall estimated costs, which is used as a basis for establishing fixed fee, which in a cost plus fixed fee contract can not exceed 10% or 15% of estimated costs per FAR 15.404-4, depending. The contractor is reimbursed actual costs, not estimated costs. So, if you "save" $100,000 in proposed (estimated) costs through negotiation, the actual "savings" may be no more than $10,000 or $15,000 in fixed fee not $100,000, and the contractor's actual cost reimbursement may eat up $10,000 or $15,000 or maybe $100,000 anyhow. 

  14. @Sarita, Alaskan Native Corporation (ANC)/joint venture/8(a) awards are a relatively small specialty area. Generally speaking, one would like to know the terms and conditions included in the ANC contract, such as FAR/DOD clauses and Small Business Administration regulations that may be applicable. Sometimes, details that you seem to be looking for are clarified during the "legislative history" process that established the clause or regulation. There is no way to research that either without knowing the applicable clause/regulation number. If you any any such information, please share it.     

  15. On 2/2/2024 at 12:36 PM, lawyergirl said:

    One of my colleagues recalls seeing somewhere that a BPA can exceed 20% of its ceiling $ amount.  Has anyone ever heard of this occurring?  If yes, is there a source for this, e.g., the FAR?  Thank you in advance for any guidance!

     

    It may be a good practice to provide for a review and favorable termination terms when when the total cumulative dollar amount ordered exceeds the estimate by a certain amount or % because that could be an indication that perhaps it needs to be re-evaluated as to whether it should be re-competed. 

  16. 4 hours ago, JKRAU2003 said:

    is my assessment of the impact to the Government's limitation of liability by inserting this clause accurate?

    I think you are on the right track and your attention to detail in this matter is admirable. However, you work for a company that has created the contractual impression in the past that adding this clause is commonly acceptable to your company. My experience is that many contractors are focused on the statement of work and price more than the many terms and conditions. I believe you should take steps to be confident that you don't object to a contract clause that the company has already assessed as an ok risk before you proceed further with such steps as discussing with the level above the contracting officer. Or, maybe your position is better handled by the program office contacts with the customer.  

     

  17. 23 hours ago, Maizyblue said:

    Would a contractor be allowed to exclude transportation and disposal entity costs under a SBSA contract for Hazardous Waste Removal and Disposal assigned NAICS code 562211, using definition (2):

    FAR Case 2021-020 proposes (at 89 Federal Register 2910 dated Jan 17, 2024) to change FAR 52.219-14 essentially as changed by the DOD Class Deviation with respect to exclusion from the 50% rule. Public comments are due March 18, 2024. North American Industrial Classification System (NAICS) code 562910 is just by way of example in both the DOD Class Deviation and the proposed FAR rule change. Your company may wish to obtain an opinion from an attorney/CPA experienced in the industry as to the degree to which rationale in your situation is a reasonable application of similarity to the example. This may serve to give your company more confidence or concern whichever the case may be for your company's business decision.   

     

  18. @On to Consulting, my suggestion is your company hire an experienced consultant to work with you regarding all the terms used in your post to sort out the applicable situation so that your posting question can be answered, due to use of the following terms in the post:

    1. downward adjustment

    2. contracted G&A rate

    3. contracts with lower indirect rate

    4. varying rates that are negotiated with other customers

    5. actual rate

    6. actuals

    7. true indirect rate

    8. agreed to rate

    9. discount the client is giving on payment terms

  19. 7 hours ago, Retreadfed said:

    In this case, I can see a potential government concern that it is somehow subsidizing the contractor's commercial work.  

    The posting was concerning G&A "over the years," and it was not stated that or how current cost or pricing data was required either "currently" or with commercial contracts "over the years." If the government was independently concerned with contractor subsidizing the contractor’s commercial work, it should perform an audit. How would they suspect this? Are you suggesting the contractor should perhaps voluntarily advise the government that "over the years," the company "contracted G&A rates all over the board with no regard for actuals or consistency?" I am having doubts about what the posting means with "contracted G&A rates."      

  20. 46 minutes ago, Retreadfed said:

    Also, if your company is required to submit certified cost or pricing data, does it disclose the fact that some commercial customers have contract prices based on lower indirect cost rates than those proposed for government contracts?

    I am not aware of the FAR Table 15-2 item that requires a contractor keep track of and review all prior commercial contracts as to what its internal allocation of G&A rate were in each such contract, and or, what it proposed as such a rate. Not clear to me what "based on" means in each contract situation and why it is a disclosure item in general. Have the same question of @On to Consultingwith respect to the term "downward adjustment."

    Is there a contract line item G&A rate in each contract? Even so, the parties can negotiate any contract line item G&A rate the parties want. I can't see its relevance.  

×
×
  • Create New...