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UseTheFARLuke

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  1. You can bid capped but you will be losing out on being able to bill the government anything over the cap amount. Since you're on a TCI base those costs will still get burdened with G&A but it will hit how profitable the contract is. Having a material handling pool won't increase G&A. The purpose of having a material handling pool is to keep the costs out of the G&A pool. You allocate the cost of the material handling pool to the subcontracts and procurements made by the folks in the pool. Granted the material handling costs would be burdened with G&A in a TCI situation. It all depends on how many contracts your company has and the size of those contracts.
  2. Yes. And it's a DoD contract so the US-EU Open Skies Agreement does not apply either. FAR 52.247-63 does not use the word agency. It does point to FAR 47.403 for the exceptions where the word agency is used. Will you please explain your answer?
  3. Hello everyone. The current COVID-19 pandemic is making air travel very difficult. U.S.-flag and foreign flag air carriers are cancelling flights right and left which is making it difficult to demobilize people and get them home. FAR 47.403-1(a) states, "If a U.S.-flag air carrier cannot provide the international air transportation needed or if the use of U.S.-flag air carrier service would not accomplish an agency’s mission, foreign-flag air carrier service may be deemed necessary." My question is, what does the word "agency" mean as used in this sentence. Does it mean the contractor or the government? For example, an employee has a flight out of Dubai, UAE to London on a foreign flag air carrier without a codeshare but has a Fly America Act compliant flight from London to Chicago but there is only an hour and a half between when the traveler lands in Chicago and the next flight. Right now with COVID-19 all travelers coming from overseas are being screened for the virus. There's no way the poor traveler is going to make the connecting flight back home. He could take a flight in the morning but he just wants to get back home after being gone for so long. There's a direct flight from Dubai to Los Angeles on a foreign flag air carrier and a reasonable layover to make the connecting flight back home. If there was no other exception to the Fly America Act compliant flight could we, the contractor, make the executive decision that the flight does not accomplish our mission of avoiding a COVID-19 infested London putting them at risk of infection and book the flight on the direct foreign flag air carrier? Or do we have to go to contracting officer and get them to give us permission to book the foreign flag air carrier? I'm trying to think outside the Fly America Act box to get people back to the States as quickly as possible without getting infected.
  4. Mr. Roberts is referring to FAR 42.202(e)(2). Does one of the qualifications for the government to manage you subs apply?
  5. I am not a lawyer. Definitely seek guidance from your legal counsel. That's why they get paid the big bucks. 1. Hard to say without reading the contract. Please DO NOT post it though. 2. The original NDA between the government and B is worthless to A. Who is A going to take to court? B? Nope. B had no contractual obligation to A to keep A's data confidential. The original NDA goes against the fundamental tenets of contract law. Regarding releasing proprietary data, an interesting case regarding FOIA was recently decided by SPOTUS. https://www.jdsupra.com/legalnews/supreme-court-removes-substantial-91552/ This case was about data marked as proprietary being disclosed to a competitor via a FOIA request. SPOTUS ruled "that those submitting confidential information to the government need not demonstrate a 'substantial competitive harm' to protect that information from disclosure under the Freedom of Information Act." If the government does not have the rights to the data and the data is not subject to FOIA, then the data might not be able to be given to B. 3. Just because the government gained unlimited access doesn't mean it give access to a third party. Seeing as how the information was previously shared with B and A knew about it, A might not be able to say much now. Yeah, definitely talk with your legal counsel about it.
  6. The DSSR is mentioned in FAR 31.205-46. However, the travel cost principle only incorporates the PER DIEM RATES and even says that the entirety of the DSSR is not incorporated into the FAR. If DCAA is referring to -46 the it is a FAR reach (pun intended) to incorporate the danger pay uplifts into the contract. Especially because the employees are not on travel, they are permanently stationed overseas.
  7. DCAA asked about this during a billing system audit years ago. I told the auditor that is was up to the contracting officer to do the withhold, not the contractor. They didn't bring it up again. But yes, DCAA still expects the contractor to do the government's job. Here's the audit step from the current accounting system audit program: And they even tie it to a DFARS accounting system criterion. So DCAA would (try to) say that not withholding fixed fee is a deficiency. I'd love to see that go before the ASBCA.
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