General.Zhukov

Final comment. I don't know the details of the fly business class but charge economy class case. I do, however, know that Business Class jumped of the screen when the CO looked at the proposal's travel cost estimates, and was never going to get into the contract. At least in my office, it's the only case I know of where an offeror was like "yeah, we are proposing to fly business class and you are going to pay for it." In fairness, the PhDs in the labs want/need this exact model of instrument made by this one company (whose sales reps maybe or probably have been chatting about it to the PhDs for months before contracting got involved), and everyone knows this and negotiates accordingly. Thanks for the thoughtful responses.

This was very helpful and reassuring to me, as your responses agree with my understanding. The flying business class case is real too - although what happened is the GVT refused, thinking (wrongly, IMO) that it was prohibited, and the OEM agreed that $$ over economy class wouldn't be reimbursed. Apparently, highly-skilled technicians - especially those willing to travel to remote locations and be responsible for very expensive and delicate machines - can demand perks, and their employers are eager to pass those costs on to customers.

Scenario: The common scenario in my agency is a fixed-price order for commercial services. Let's say it's for on-site installation and calibration of scientific equipment. This is a contract directly with an OEM, not using any acquisition vehicles which have their own procedures and rules about travel. We will have the new instrument installed in four labs around the country. OEM technicians must plug it in and get it working in person. The labs and the OEM both insist on using reimbursable travel to cover the travel costs. Time on site is unpredictable - could be a few days, maybe much longer if things go bad. The labs don't want to 'overpay' for fixed price travel. The OEM, after a bad experience with another agency during COVID, also insists on reimbursable travel. They are firm on this. Conservative estimated total travel cost is $80,000 on a multi-million-dollar contract, so not worth negotiation with a vendor who's already said they aren't negotiating on this. As the CO, I shake my head, insert FAR 52.212-4 Alt 1, follow the procedures, get all the approvals, etc. and now have travel as a reimbursable ODC on a T&M Line Item. Question What, if any, other regulations or laws must apply to travel in this scenario. As its commercial, I'm uncertain if 31.205-46 Travel costs applies "automatically." How about the Joint Travel Regulation? Let's say the tech always travels business class - and has the receipts from previous non-governmental customers to prove it - is that okay, as that's the 'commercial market practice?'

Not everyone is opposed to commercial. In my contracting office, which has roughly one hundred 1102s, we did about 1,700 new contract actions last year (excluding modifications & close-outs). The vast majority - >95% - of these actions were commercial orders. Of the remaining 5%, most are special cases (BAAs, R&D, inter-governmental cost contracts required by law, etc.). Excluding the specials, my agency could very well have awarded zero non-commercial contracts last year.

Last word on this. Yes. Universities (big ones) have business offices whose job it is to work with you to get the signature, including accepting and complying with T&M or Labor Hour pricing, or FAR 31, or whatever. There is no blanket prohibition I am aware of that would make universities categorically unable to comply with these regs. I know for sure that my federal agency routinely enters into contracts with universities (to do agro/bio research and regulation related stuff).

No, I don't think there are any problems with universities complying with timekeeping. None that are big enough for me to be aware of. Large research universities (the type my agency works with) will have some sort of office that takes care of contracting. These are the people to talk to. Like this one I know about at Johns Hopkins. Not the PhDs. The investigators who do the work of the contract - they neither know nor care about the FAR or timekeeping compliance.

Many institutes of higher education have MAS contracts with Labor Hour pricing (UNC Chapel Hill for sure). My agency has LH and T&M MAS orders with these universities. We also have cost no-fee contracts with universities (like Texas A&M). We have contracts with non-profit primes that sub to universities. I don't know the details of those, but they aren't fixed price. My agency, however, (mostly, maybe only) works with public state universities, things may be different for private IHEs. There isn't any type of blanket prohibition.

I can say from personal experience in the Army, that this does happen, or at least did happen for me, and it was pretty routine. My Army unit had access to stuff that was in advanced development state by other USG entities, ranging from moderately to very classified, and we got training and tech support by contractors who worked for those other guys. There was, in my case, an on-site uniformed officer overseeing it all. So, it happens. Contract-wise, I don't know, wasn't my job at the time. Its the Army's job to figure it out and coordinate, specifically it's the Commanding Officer's job. Easy. Not joking. The details and execution may be quite complicated and delegated down many levels from the commander, but ultimately, it's their responsibility. If it's not happening despite the fact that everyone wants it to happen, because nobody knows who goes first, or who has the authority to make actual important binding decisions, or general inertia and passivity, or lack of money, or whatever, then it's then the commander's responsibility to fix things. For many (not all) things in the Army, this is the PEO. What should happen: The uniformed boss of your particular contract/project tells his uniformed boss (PEO) "we want in on what the Navy is doing." The PEO agrees, then tells her staff to make it happen. Then it happens.

A little off-topic, apologies. I am reading this thread here and don't understand how a FFP NTE Line Item (CLIN) for travel reimbursement is materially different from cost-reimbursement (no fee). This quote is hinting at the difference, but I don't quite get it.

Are you asking about splitting requirements? My definition: Having a known requirement that is larger than the applicable dollar thresholds and dividing that requirement with the intent to purposely circumvent those thresholds. In your case, the purpose of splitting requirements would be to lower the dollar value of action, and thereby lowering the non-competitive approval authority, right? You have a $1,000,000 sole-source contract needing approval by the Advocate for Competition. You do not want to seek AOC approval, so you split the requirement into two $500,000 contracts, now the Contracting Officer can approve the JOFOC, rather than the AOC. If splitting requirements is done in collusion with a contractor, or with the intent of directing the award, it is fraud, more precisely Fraudulent Sole Sourcing. Dust off your Contract Attorney's Deskbook, flip to Chapter 28 Procurement Fraud, and read all about it. If splitting requirements is done without collusion, for more prosaic reasons, it's not fraud per se, but it is...ethically questionable. The actual experts here on Wifcon will know more than me about this.

Can an offerors history of bad-faith protest somehow be considered during source selection? My basic very-much-not-an-expert understanding you'd have to pass two tests (note to the actual experts on wifcon, please correct me here) 1) you'd have to demonstrate how that is tied to your RFP's requirements/objectives, expected to a discriminator, and an indicator of best value. Basically, FAR 15.3. As @formerfed wrote, maybe... if you could reasonably argue what's evidence of an offeror having a propensity to file frivolous or bad-faith protests, and how that would be a negative. I think that is possible in some specific cases, but generally would be very difficult to do. 2) Isn't prohibited by law, policy, or convention (i.e., there is NO history of protest decisions effectively squashing what you want to do) See comment by @bob7947 My hunch is that you wouldn't be the first person to do this, and there is precedent ('case law' / protest decisions).

Bing (which is ChatGPT 4) has the answer: "I’ll try to explain in simple terms. The American Recovery and Reinvestment Act of 2009 is a law that provides money to help create jobs and improve the economy. If someone wants to buy something using this money, they have to follow certain rules. One of these rules is that they have to use a special form called “Alternate II” when they make the purchase. This form helps make sure that the money is being used in the right way. So, if someone wants to buy something using money from the American Recovery and Reinvestment Act of 2009, they have to use a special form called “Alternate II” to make sure everything is done correctly."

So I think this is true: GVT & you agree that they cannot require you to provide certified cost/price data. Rather than demanding certification, they are asking for it. That is, they want you to voluntarily certify the data you have already provided to them. Correct? If this is what's going on, the path of least resistance for you is to have the company owner (not you) certify the data and be done with it. Speculation: They are struggling to get to fair and reasonable pricing. This is unfamiliar territory for a lot of contracting folks - over-budget for a non-commercial product, from a sole offeror, who is a very small non-traditional new-to-the-DoD company. This eliminates the easy and routine ways to get to fair and reasonable pricing. They are down to the seventh and "final" price analysis technique (FAR 15.404-1 b 2 vii) - other than certified cost or pricing data. So what is normally a very straightforward and simple analysis is, in your case, unusually complicated and looks, at a glance, like it probably should have certified data. Some approving official unfamiliar with this complicated situation (mistakenly) skims the award docs, and kicks them back for missing the certification letter. Rather than push back against that official, CO is going path of least resistance, and asking you for the certification so they can add that single-page file to the package, change nothing else, and re-route for approval. We will never know, but that's my guess. Aside: "Final" pricing technique in quotes because the FAR explicitly states these are examples, not an exhaustive list, but in practice, its sometimes treated as an exhaustive list. Like everyone assumes a written pricing analysis MUST refer to one of those techniques. Or worse - I've seen a checkboxes for which techniques were used, and there was no box for 'other.' (This was not my office, btw)

As I understand the question, three facts: a contractor has sold your third-party software to the government, and your software is currently being used by a government customer. the prime has not paid you for the software that you owned, they sold, and is now being used by government. the licenses have expired, so the government users are in violation of something (probably the EULA) and probably not allowed to use it. Can I use these facts as leverage to get the contractor to pay me? Probably yes, however, I'm not a lawyer, certainly not your lawyer, nor will I be paying your legal fees. 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. That will motivate them to discuss the issue with your prime. Or, if technically possible and even more crisis-inducing, just active the kill switch remotely without warning. A more reasonable suggestion: It is very likely that the contractor is in violation of some part of their contract with the government. You will probably need their specific contract to find out exactly what the contract states, and hence what part of the contract they are breaking. You can (probably) get that contract - speak to a lawyer about it. In the meantime, it's very easy to find other publicly available federal contracts that may be pretty similar - that cover third party software. This may help you get a general, generic, sense of what the terms and conditions are. These contracts have terms and conditions, clauses, and often a separate software licensing agreement- where the issue of third-party software is discussed. In there somewhere, you will find something to the effect of "You can't sell us third party software with expired licenses, and if you do, here are the bad things that will happen to you." ESI.MIL is probably the best source. But GSA, NASA SEWP, NITAAC and many, many, other federal civilian and DoD entities have these types of contracts available online. Add On: The FAR is not good about software. The FAR clauses that may apply to your situation are very broad, lacking important details, and I doubt you will find them helpful. However, there are layers of regulations and some of the second and third layer regulations ARE pretty good about software, particularly within DoD. If you know they government customer and can identify the applicable sub-FAR, you might be able to find some regulations/clauses that would be useful. For example, three levels of regs: 1. FAR (Everyone) 2. DFAR (DoD) 3. AFAR (Army)

The Red Book | U.S. GAO, Chapter 5. This will have your answers, probably. The rules are different depending on your situation. Do you have a multiyear contract? (Which is a special thing, not just a contract whose total duration inc. options is > 1 year) Is funding multiple-year appropriations? The contract is for severable services?