Neil Roberts

On 8/24/2023 at 8:59 AM, Atlas STS said:

DFARS 252.215-7010 (especially (b)(ii)(E)) which states that NTDC qualify for an exception from certified cost or pricing data

My take on (E) is that it is a subparagraph of commercial product or commercial service and only one of several pieces of potential information (see subparagraphs above it), for those who are applying to have an exception granted for its commercial product or service. In any event it is government discretionary to grant it, not a contractor right. I read (A) thru (E) as if the words "commercial product or commercial service" appeared in front of the word "items." 

4 hours ago, joel hoffman said:

Doesn’t that answer your question here? Seems clear and unambiguous to me.

@Joel Hoffman. I think the post is asking why the debriefing notice was given at 9.5M, if it is clear that it is required only at 10.M...are there scenarios regarding how the contract award value is seen, or was it a gratuitous notice given by the government?  

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18 hours ago, Don Mansfield said:

What do you mean by "authority"? Do you think that a contracting officer wouldn't have the authority to extend a contract when the contractor experienced an excusable delay if the contract didn't contain the Default clause?

Hi Don. What I meant by "authority" was that a clause is included in a contract when a FAR prescription says to include it. I can't properly answer your question because I haven't thought about it, nothing offhand comes to mind, and do not have the time right now.

The "authority" for each would be the FAR regulation that is called out in the "prescription" for each, i.e., "As prescribed in 49.504(c)(1), insert the following clause:" If you are looking for rationale for the language in each clause, you can research that in the Federal Register history for each clause.

11 hours ago, Atlas STS said:

As I considered just caving and certifying the data,

I don't know your place in this company. I sympathize with your reservations about the risk. Should you do so, In this case, I think you should consider having a company official sign it, if that is not already the practice.

On 8/24/2023 at 10:38 AM, Atlas STS said:

I'm unsure how concerned I should be that my current accounting system is capable of meeting the reporting requirements of an audit,

@Atlas STS, does your company have a certified public accountant (CPA) report that it meets Generally Accepted Accounting Principles (GAAP)?

2 hours ago, Retreadfed said:

 The audit does not measure whether your accounting system is compliant with the CAS.

 

@Atlas STS may be concerned with this small businesses' accounting system itself, not with whether it is compliant with CAS. Shouldn't the accounting system in use be capable of and report certain financial data to support the cost or pricing data requirements. What would a goverment audit report likely say if the accounting system is a shoebox that you have to sift through to hopefully find the support for the cost or pricing data submitted to the government? 

Culd re

2 hours ago, REA'n Maker said:

How is that different from CPAF?

Could require an analysis of pros and cons of FAR 16.3 vs FAR 16.6 as to contract type and 16.401(e) as to award fee.  

We here do not know what your company's written request for an exception said, and what if anything the Government thought of it. It is an exception. If it were me, I would ask if the written request for an exception contained adequate information and if so, what the exception granting process is and its status. 

On 8/21/2023 at 12:11 PM, General.Zhukov said:

If I want to immediately cause a crisis, I would identify the government end-users and the cognizant contracting authorities and then notify them that use of your software must immediately stop. 

@inaz, I would be real cautious and concerned about the above backfiring on you with a claim against you for intentional interference with contractual relations, a common law no.no. See https://en.wikipedia.org/wiki/Tortious_interference.

Your attorney's advice would be your best bet.

22 hours ago, inaz said:

I have a small business and our licensed software is a package a Prime is selling to the government. In litigation, a judge deemed the Prime must pay me upfront for licences going forward. They are not current.

Apparently your company sued another company, won a judgement for money damages but the other company has not paid off the debt to you. From your post information, I don't see what the federal government has to do with your situation, so looking for a FAR solution does not make sense to me. You should contact your attorney to find out how to enforce the judgement you obtained.  

15 hours ago, joel hoffman said:

Neil, I think that the OP is a CO or other government employee. 

I was just trying to answer the question, "is there ever[y] (sic) a circumstance where a small business has to submit a subcontracting plan." It didn't matter to me whether it was government or contractor asking the question.

My experience with DD254 classified program contracts is they are treated by everyone on the program as if the classified security requirements override FAR requirements where compliance with the FAR requirements puts you in jeopardy of non-compliance with the security requirements. So, if FAR 52.219-9 was included in the prime contract, but the DD254 indicates you and/or your subcontractors are required to submit a small business subcontracting plan, compliance with the classified security requirement is what would be expected.

On 8/14/2023 at 6:51 AM, NOVA_CO2344 said:

Is there every a circumstance where a small business has to submit a subcontracting plan?  PIEE/CLS is asking questions in such a way that the requirement for a subcontracting plan (using dd254s, etc.)  clause is coming out even though the prime contractor is a small business. Where in the FAR does it require a small business to have a small business subcontracting plan? Am I missing something here?

Perhaps you could ask for a clarification? I am not aware of any existing or planned FAR requirement that a small business prime contractor shall submit a small business subcontracting plan. However, it seems possible that if 52.219-9 is not required to be included in a prime contract (see 19.708), an Agency might come up with some general or security rationale requiring such a plan. I would think that the SBA should have some say so about that if it has security access.

On 6/29/2023 at 7:27 PM, annieK said:

Let’s say a contractor sends off a First Article Test (FAT) for testing, it gets approved (but the contractor is not yet notified) but contemporaneously a recommendation is made to cancel the contract because the material is no longer needed. Prior to receipt of the FAT approval letter, the contractor tenders the production lot for inspection by DCMA. Should the contractor be on the hook for costs incurred for finalizing the production lot prior to receipt of the FAT approval?

The terms and conditions of the contract between the parties needs to be read. Contract requirements need to be identified that support whether contractor failed to perform or failed to refrain from performing in accordance with such terms and conditions.

On 8/4/2023 at 6:52 AM, CHILINVLN said:

Question:  Is this acceptable for the organization to do, where does the company draw the line, and what steps would we need to take to reduce/mitigate risk to make this happen?  Do we give them the option to join and charge a fee vs extending an invitation?  Do we just put a statement on the invitation that the event meal has a value less than $25?  Appreciate any advice on this topic.

Apparently, your company has no written policy and perhaps should generate one now. This subject is difficult and may depend on federal general/agency rules. Your company should give lots of thought to how your company perceives itself and how it will be perceived by employees, potential and existing customers and others. For example, you left out suppliers.  My suggestions is you obtain legal counsel to thoroughly review and provide advice for each such event.     

I would say that only new contracts would be affected.

On 7/24/2023 at 2:16 PM, LucyQ said:

1) Approved Supplier List (we use Unanet as our ERP)

2) Excluded parties searches

3) Financial Capability (DNB)

If these are the only perceived weaknesses to comply with a CPSR, your new company should be congratulated. I would go back to the current software/computer system that is driving the current supplier management system and ask if they have some potential solutions for the potential weaknesses you mentioned. Not sure what DNB means. I assume you mean Dunn & Bradstreet financial reports. I would review the previous CPSR and include questionable areas in current preparation. If your company is new to a CPSR, I recommend you spend the money on a consultant review instead.  

4 hours ago, lawyergirl said:

During the onboarding of an applicant to a government contract ...

Can you please clarify:

1. why an applicant for employment is being briefed about a government contract ( I can see an emplyee being "onboarded")

2 who is the applicant applying to for employment

3,, who are the parties to the government contract

4. whether having a drivers license from the state where the "onboarding" was taking place is a written requirement for the job on day one or is it contemplated that the hired employee will obtain one in due course, or is there no such written requirement at all.  

5. what is the general description of the job

At the beginners level, looking for a clause in the contract is the right thing. You did not indicate who the parties are to this contract, how old it is and what the dollar value is of the contract.  If the other party is not the government, might need an attorney for "thorough" research if the party is threatening not to perform, it is a large dollar amount, and you can not replace the item being furnished in a timely manner at a comparable price. For your information, the other party may not perform and attempt to defend themselves in a breach of contract action against them, with the concept that an unforeseen inflation event occurred to make performance unreasonable difficult or expensive. The event must be such that the parties cannot have reasonably foreseen it happening and it cannot be something within the parties' control. So, you may just want to make a business case comparing the impact on your company providing some relief or not and whether to negotiate for something of value in return.

"until"

@Retreadfed, here is my take about that:

The sentence above in FAR 52.232-20, does not give a contracting officer the unilateral right to change the estimated cost specified in the Schedule of the contract. Instead, when the contracting officer provides the Contractor with a revised estimated cost in accordance with this sentence, the contractor is obligated to continue performance and/or incur costs in excess of the estimated cost in the Schedule.

2 hours ago, Retreadfed said:

Whether to fund an overrun is generally a discretionary act on the part of the government.  When you say consideration is necessary for the government to fund an overrun, are you talking about new consideration or are you talking about prior consideration?

I never said anything about funding and neither did the comment you made to which I responded. Your comment and my response was about changing the estimated cost of the contract. 

On 7/17/2023 at 10:06 AM, Retreadfed said:

Neil, I don't think this is an accurate statement.  Changing the estimated cost of a contract to reflect an overrun does not require additional consideration.  Similarly, reducing the estimated cost of a contract to reflect an underrun does not require additional consideration.

@Retreadfed, I am not aware of an exception to the concept that a contract change needs consideration to be enforceable...Consideration is the benefit that each party gets or expects to get from the contractual deal. I am not aware of any regulation or statute that Government and Contractor are required to adjust the estimated cost for an overrun or underun condition that may be reported to the Government by a Contractor.

On 7/10/2023 at 8:09 AM, YMachining said:

If the prime isn't paying their subcontractors, are we required to continue shipping parts per their PO? The prime is coming up on a milestone with their contract and are at jeopardy of not making their milestone without our parts, but I'm afraid if we supply the parts we might not ever get paid.

Your company may have the right to stop work, terminate the contract and sue for monetary damages for breach of contract.