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  1. Seems like you may have a case for defective pricing. The contractor relied upon a set of facts/data to generate a proposal, which you then relied upon, in order to negotiate an award. You both agreed on a price. That company then duly certified that the data utilized was current/accurate/complete. But after award, it was discovered that this was not retroactively true. When notified, you were almost distracted by the fact that the negotiation was complete/over. Who cares. Uncle Sam may have paid more due to defective data. As mentioned, definitely see that clauses 52.215-10/-11 are in the contract and/or task order and get clarity on the matter.
  2. Was this a procurement under FAR 16.505(b)? Is the dollar value in excess of the applicable threshold specified at FAR 16.505(a)(10)(i)(B)?
  3. Yes. I see now, I think. No need for a new CLIN. Issue a unilateral mod citing the 52.245-1 directing delivery/return of the GFP . Then, as the clause states, settle on an equitable adjustment for the GFP delivery. That's my interpretation. Am I reading correct?
  4. GFP no longer required on a contract must be delivered for usage on a different contract (by a different contractor). There is no delivery/shipping CLIN in the Schedule. May the CO issue a change order to create this CLIN, an NTE price for 1 Lot, and specify its delivery instructions IAW clause 52.243-1 Changes-Fixed-Price?
  5. Say you are in a sole source, non-commercial procurement with a small business joint venture (JV). The JV comprised of two partner firms, and certified cost or pricing data will be required prior to making award to the JV. The JV is brand new, so there is no no acquisition history attributable to this entity. However, there is extensive acquisition history and actual cost data attributable to at least one of the JV partners. My questions: Will Truth in Cost or Pricing apply only to the JV entity, or any/all contractors associated with the JV? May the JV refuse to submit actual cost data attributable to just one of the partner firms, arguing that this is proprietary data? Is the JV required to have an accepted accounting system, if both partner firms in the JV already do?
  6. I won't bother with numbers, but your proposed example seems reasonable for Sales. That's a clear incentive to churn out revenue. Just to be clear, in return for winning a service contract with options, would the employee earn commission on just the basic period or the total contract value to include options? As for Business Development, to incentivize repeat sales and build on the relationships with my "Big Ticket" customers, I'd consider gradually increasing commissions for winning contracts in the same target market/niche.
  7. In the past, DCMA's Commercial Item Group was responsible for reviewing/making recommendations as to Commercial Item Determinations for buying commands throughout the field. The Procuring Contracting Officer was ultimately responsible for making the determination/decision. Now, based on one of DPC's newest policies, this authority has been taken away from Procuring Contracting Officers altogether. Thoughts?
  8. Assume: The Government relied upon certified cost or pricing data to award a particular contract and/or mod. The conditions under which the Government is entitled to a price adjustment for a sum certain are met. The clauses at 52.215-10 Price Reduction for Defective Certified Cost or Pricing Data and 52.215-11 Price Reduction for Defective Certified Cost or Pricing Data - Modifications were both missing due to negligence of the CO. FAR 15.407-1(b)(1) emphasizes that the above clauses entitle the Government to demand a contractual price reduction. Therefore, in the absence of these clauses, there is no remedy available in such circumstances. My question is, wouldn't the courts read in clauses 52.215-10/52.215-11 into the contract? Is the right to price reduction not always effective by operation of sovereign Government law regarding certified cost or pricing data?
  9. Yes to both questions. I do think that, considering an intended benefit of commercial contracting is increased efficiency in administration, inflexibly requiring supplemental agreement on every single contract modification is a bit impractical. I am definitely looking to learn of ways to responsibly issue unilateral mods to commercial contracts (for such circumstances I originally stated) and thereby expand my toolbox.
  10. I would also offer that in commercial contracting, the vast majority of the time those terms and conditions are agreed upon up front. There is definitely no unrestricted power to issue the change now, then close the deal later. With that in mind, assuming my personal assertion made in the OP is correct, then we are talking about negotiating/incorporating initially agreed upon circumstances in which the Government can unilaterally change commercial T&Cs, and only when such unilateral changes are already consistent with commercial industry practices within a particular market. Doesn't seem like unrestricted power to me, and there will have been clear agreement up front... Either way, I'm not the expert here and remain open-minded.
  11. A fairly simple example should the clause itself: 52.212-4 - Contract Terms and Conditions - Commercial Items
  12. As prescribed in FAR Subpart 12.302, the CO may tailor any paragraph of clause 52.212-4 except for those related to the following: Assignments Disputes Payment (except as provided in Subpart 32.11) Invoice Other compliances Compliance with Government-unique contract laws Unauthorized obligations The Changes paragraph at 52.212-4(c) is not excepted. Therefore, can the CO specify by addendum to 52.212-4 certain circumstances in which modifications may be issued unilaterally? Examples that could be included in such an addendum: deobligations of excess funds due to unutilized work, forward-priced "change orders" for the commercial item already procured under the contract, etc. Initial thoughts to this question are yes, since provided that such an addendum is included in the initial award, the contractor will have agreed to all terms & conditions, to include potential unilateral mods. When inquired, others stated no and insisted that all contract modifications pursuant to 52.212-4(c) may be made " only by written agreement of the parties" no matter what. This may be the case, though I would think a unilateral mod as described in above circumstances would be issued pursuant to the 52.212-4 addendum. Which interpretation is correct?
  13. You are doing the right thing by asking for consideration, as based on what you said there is nothing inducing the Government to grant this extension. I'm curious... What authority will you cite to issue the mod?
  14. I do have very recent historical pricing that shows the prime can get a much better deal from their supplier. Were they to purchase from one of their lower-priced suppliers, price would be otherwise fair and reasonable. As things stand, the prime clings to the supplier who's quoted the highest price among the unidentified suppliers. I have no way of verifying the identity, cost breakdown, responsibility, or delivery schedule of any of the suppliers. Truly, I cannot even verify the suppliers' prices since I don't have their quotes. As mentioned, both the prime proposal and the supplies to be purchased (from the one supplier) exceed the TINA threshold. And yes, the supplies comprise greater than 10% of the prime's total price IAW FAR 15.404-3(c)(1)(ii).
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