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Neil Roberts

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  1. Neil Roberts
    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.
  2. Neil Roberts
    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.
  3. Neil Roberts
    University of Utah rate agreement with the government which defines modified total direct costs. See https://osp.utah.edu/_pdf/f_a_rate_agreement_2022.pdf
  4. Neil Roberts
    I am not well versed in this area but perhaps it is driven by federal regulations that control government contracts. It appeared to me that Code of Federal Regulation (CFR), 2 CFR 200.414 might be a fair start? see https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-E/subject-group-ECFRd93f2a98b1f6455/section-200.414
  5. Neil Roberts
    @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
  6. Neil Roberts
    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."
  7. Neil Roberts
    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.
  8. Neil Roberts
    @Needforspeed, what your are asking is more of a legal question. I asked the internet something like "52.242-5 contractor never pays subcontractor", and found the following result: https://www.jdsupra.com/legalnews/government-involvement-when-prime-1226148/
  9. Neil Roberts
    @Needforspeed, as you said, it is negotiated. The leverage is at time of negotiation. Net 30 would be normal after receipt of invoice. You could offer 1%10 days, net 30. If you can't negotiate that, find a bank that will agree to advance you $ for your accounts receivable pending payment, and put the interest cost of doing this into your G&A expenses. FAR is not very generous either. FAR 52.242-5, for example, permits payment up to 90 days after the the contractor receives payment from the government.
  10. Neil Roberts
    Perhaps you could clarify and/or provide language examples for a "pay when paid" clause? Is it a FAR clause? Which one(s)? Are you talking commercial items or?? Also, there is at least one prime contract clause that prohibits a prime from being "just a pass through."
  11. Neil Roberts
    @Drew My answer is yes.
  12. Neil Roberts
    @Drew FAR Case 2010-010 includes implementation of competition requirements unique to Phase III awards under the SBIR and STTR Programs. It is still pending. The proposed implementing FAR Regulations did not appear to include any impact on the scope of CPSR's. Proposed rules at https://www.federalregister.gov/documents/2023/04/07/2023-06420/federal-acquisition-regulation-small-business-innovation-research-and-technology-transfer-programs
  13. Neil Roberts
    Your approach is on the money. If I were you, unless you have some real business heartburn over it, I would go along with the government's position that FFP Task Orders are to be included in calculating sales to the government. I assume these are Task Orders you received from a DOD component and that they are under the umbrella of the sole source IDIQ contract you have...and they do not exist as stand alone contracts. When a contract is included in sales estimates, procurements thereunder should also be included in its review universe. I would ask your accounting system to generate a listing of government contract numbers and procurement purchase contract numbers booked against them. Some of the questions you have should be visible and discussed with the government in the prereview questionnaire
  14. Neil Roberts
    I interpret the above language in the CPSR Guide as having nothing to do with subcontracts. It is instead about your contracts with the Government.
  15. Neil Roberts
    The Sept 2021 CPSR Guide states: "A contractor is eligible for a CPSR when sales to the Government are expected to exceed $50 million during the next 12 months (excluding competitively awarded firm-fixed-price contracts awarded with or without an economic price adjustment and sales of commercial items pursuant to FAR part 12). I am a little confused by some of the language in your post when you say "our company has," followed by "competition were met." Do you agree that your company qualifies for a CPSR in the first place? Is that what you are really asking?
  16. Neil Roberts
    Those are good questions. As the contractor, you should ask the Army to issue a contract change that covers the answers to these questions and/or provides contract direction that accomplishes these tasks, such as government furnished classified information.
  17. Neil Roberts
    I think there are other considerations that should come to mind other than is the contract "closed." I hope you would have thought about whether it should be a new procurement considering the value of the item and whether it is a justified mandatory source or there could be (or is it worth) competition. What about the impact on the payment system since the invoice was already submitted? Could it be done just as easily with a new procurement, etc. Maybe you did give these some thought. So, if the agency initially ordered 6 army designed tanks and forgot to order a spare machine gun turret and it cost $100,000, would you just be asking about "reopening" a contract for 6 tanks that were already delivered? Just a comment. No need for you to respond. I do see that you are a new poster.
  18. Neil Roberts
    Agree clarification is needed. Post appears to have alluded to the transaction possibly being a grant. Many FAR regulations common to "contracts" do not apply to grants although they may provide guidance in situations. Agencies have grant rules.
  19. Neil Roberts
    Are you a contracting officer and are these Government grants?
  20. Neil Roberts
    Thanks for clarifying. There are many other contributors on this site that can better respond to your situation regarding appropriate government contract types and source selection/award issues. While waiting, perhaps you can provide exact language in the BAA regarding proposal requirements and whether contract awards were contemplated from BAA responses and the basis for source selection (i.e., price. schedule, technical, etc)...information that would normally be included in a RFP/ITQ solicitation. Dollar value of each award would be helpful.
  21. Neil Roberts
    You should comply with the requirements that control the specific BAA. For example, FAR 35.016. In general, a sole source award does not seem appropriate at all to me for the purpose of a BAA.
  22. Neil Roberts
    What is the written function of the Tech Code office? What is the rationale for its requirement in this case? Are they governed by written procedures? Is their requirement consistent with the written procedure? What executive level management function do they report to? Is that office required to comply some applicable government specifications or regulations or contract provision related to this decision?
  23. Neil Roberts
    , In FAR 52.216-7, a contractor final voucher paragraph (d) comes before government final payment paragraph (h) and appears to be a preconditioned requirement. If final payment has really been made, the contractor only needs to contractually comply with the balance of paragraph (h). So, I guess the government currently did not find the final voucher in its file and would like a copy? Since your company still has its records, why don't you provide the government with a copy.
  24. Neil Roberts
    My understanding is that a Contract Disputes Act proceeding normally may be available after the contractor submits a formal claim seeking a contracting officer's final decision and the contracting officer issues such a final decision. Scratching my head about the contractor's claim here to the contracting officer.
  25. Neil Roberts
    FAR 4.7 applies to contractors. Does 4.703 (b)(2) and (3) therein help? Also you should review the audit and records clause in your contract, which could be FAR 52.215-2
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