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Guest108830

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  1. Perhaps I'm reading 31.205-18 wrong when it says "required in the performance of a contract." When I say performance, I'm saying performing a portion of the PWS. What I believe is being mentioned here, however, is where a proposal is expressly "required" to be submitted once under contract for various things. 

    When I look at it this way, it makes more sense. It's not the performance of work that's being referred to, but rather, whether the contract signed has a express clause requiring a proposal to be submitted for some attribute. 

  2. FAR 31.205-18 Independent research and development and bid and proposal costs defines B&P as:

     Bid and proposal (B&P) costs means the costs incurred in preparing, submitting, and supporting bids and proposals (whether or not solicited) on potential Government or non-Government contracts. The term does not include the costs of effort sponsored by a grant or cooperative agreement, or required in the performance of a contract .

    Small Business with a Small Business Set-Aside award. CAS does not apply to small businesses. No certified cost or pricing applies. Compensation is T&M and within DoD. The effort is for General Services (not construction, not professional services). Contract term is base 5 years with 5 one year option periods, total 10 years. 

    A Letter Contract (per FAR 52.215-25 Contract Definitization) has been entered into while the broader contract is being definitized / negotiated (there are some insurance anomalies associated with aircraft services).

    Question - the costs (time / hours) associated with contract negotiations on the broader contract - should these hours be charged to as B&P or charged as G&A / Overhead?

    Reason asking, B&P excludes costs (time / hours) associated with "performance of a contract." Does a Letter Contract constitute "performance of a contract" and thus because limited performance is taking place under the Letter Contract, therefore, any costs in furtherance of the Letter Contract, which would include negotiations of the broader contract, should be considered other than B&P?

    According to DoD, contract negotiations should be considered B&P https://www.acq.osd.mil/dpap/policy/policyvault/usa002866-11-dpap.pdf

  3. Usually with RFP's comes a question and answer period where prospective Offerors may ask questions with regard to the RFP and receive answers back from the Gov't. What if no time period for Q&A expressly exists within the RFP under a DoD Commercial Acquisition?  I researched FAR 52.212-1 Instructions to Offerors (which is in the RFP) and did not find any standard language that addresses such.

    Is the Q&A period right up to the very end of the submission time if not indicated otherwise in a DoD Commercial Acquisition (SF1449)?

  4. Per DoD Memo, https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf, DoD is providing the KO's an option as to roll in the DFAR clause into contracts, task orders, etc. awarded before October 15, 2021. To me, this is further evidence that merely issuing a bilateral mod at the ID/IQ level does not automatically apply to the awarded task orders and a subsequent bilateral mod must be performed at the Task Order level.

  5. With the issuance of the COVID DFAR clause, the Gov't is issuing bilateral mods to various DoD ID/IQ's, among other. There's a common belief by a number of KO's that issuance of a bilateral mod at the ID/IQ level naturally and automatically applies to all (Task) Orders issued thereunder. When pressed for the authority, the KO's tend to cite FAR 52.216-18 ( b ) Ordering or DFAR 252.216-7006( b )

    There appears to be no evidence within this clause stating a modification at the ID/IQ level also constitutes a (bilateral or unilateral) modification at the (Task) Order level. I see only the authority to issue Orders themselves and a conflict provision. 

    Wouldn't each Task Order have to be modified separately through a bilateral to include the newly minted DFAR clause? 

     

  6. DFAR 252.242-7005 Contractor Business Systems is present within a single award ID/IQ negotiated services RFP / solicitation. This is a Small Business Set Aside under the Army. In addition, DFARS 252.215-7002, Cost Estimating System Requirements, 252.242-7006, Accounting System Administration and 252.245-7003, Contractor Property Management System Administration are also present. 

    There are no Cost Accounting Standard (CAS) provisions / clauses within the ID/IQ (no 52.230-1, 52.230-2, etc.) The ID/IQ appears not to be a "covered contract." And, whereas, Small Businesses are expressly exempt from all CAS per 48 CFR 9903.201-1(b)(3).

    The KO has requested Offerors (through ENs) to supply supporting documentation to meet the requirements of DFARS 252.215-7002 and 252.242-7005.

    DFARS 252.242-7005 requires the contract be a "covered contract" (meaning CAS applies) and 252.215-7002 does not apply to small businesses per PGI 215.407-5-70(b)(2) and (c)(1)(iii), "Contracting Officer shall --- Not apply the disclosure, maintenance and review requirements to other than large business contractors."

    Does 252.242-7005 and 252.215-7002 apply, given the facts above? If so, how? If not, why not? 

  7. Perhaps I should be asking the question in a different way. I understand the "repair" and "refurbishment" aspect of (d)(2)(iii). It's the "replacement" aspect that seems to run afoul of para. (h). 

    Para. (d)(2)(iii) says, "[a]ny...replacement...shall be at Contractor's expense." The words "any...replacement" is without bounds. This appears to ignore the how and why the replacement became necessary to begin with (i.e., was Contractor negligent?). If accurate, this appears to cut against the grain of para. (h) whereby the Government bears the burden of risk of loss, even if Contractor (and or its subs) were negligent, save for certain limited exceptions.

    Any authority / case involving interpretation of the GFP being marked "as-is" and risk of loss would be appreciated. 

  8. Pursuant to FAR 52.245-1 (d)(2)(iii), if the Gov't indicates its providing its Government Furnished Property (GFP) in "as-is" condition, doesn't that reverse the risk of loss from the Government (pursuant to 52.245-1 (h)), to the Contractor? If yes, DoD is not supposed to use 52.245-1 Alternate I (per DFAR 245.107(1)(ii)) which Alternate reverses the risk of loss of GFP to the Contractor. Isn't this the same thing as using Alternate I, having the Government declare the GFP in "as-is" condition? 52.245-1 (d)(2)(iii) states:

    • "(iii) The Government may, at its option, furnish property in an "as-is" condition. The Contractor will be given the opportunity to inspect such property prior to the property being provided. In such cases, the Government makes no warranty with respect to the serviceability and/or suitability of the property for contract performance. Any repairs, replacement, and/or refurbishment shall be at the Contractor’s expense."
  9. 45.000 ( b ) ( 5 ) also states "fax machine." The correct terminology should be "facsimile machine" but for one reason or another the Government decided to use the vernacular, but almost everyone knows what's it's pertaining to. While not impossible to place a desktop computer on your lap, it's just a bit more cumbersome. A laptop is a computer, just like a smart phone is also a computer - it runs off of bits and bytes.

    Asking the Contractor to write a check without blinking an eye is somewhat antithetical. The contractors I'm familiar with would most certainly question this approach, especially a small business on a $5 million CPFF (base and 4 one year options). Such a loss goes direct to the bottom line as an unbillable against the contract. Not to mention the value of the contents being compromised in the laptop as well. 

    Determining risk of loss under a Cost Reimbursable contract / task order appears paramount in determining not only who pays but also, whether insurance is allowable to cover such pursuant to FAR 31.205-19 ( e ) ( 2 ) ( iv ) ( A ).  If risk of loss is on the Contractor for a stolen laptop off-base, then any insurance to cover such should also be allowable. And if the Laptop is indicated as GFP (within PIEE System) and added to the contract via a mod as such, then risk of loss is on the Government pursuant to 52.245-1 ( h ) ( 1 ), and any insurance secured to protect against such would appear to be unallowable, pursuant to FAR 31.205-19 ( e ) ( 2 ) ( iv ) ( A ). In other words, it appears more than just the cost of the laptop at issue.

    Seems this is more of a case by case basis where some KO's would classify the laptop such as GFP, while others would not. And in doing so, so goes risk of loss, along with allowability of certain insurance costs. Thanks for all the responses. 

  10. FAR 52.237-2 Protection of Government Building, Equipment and Vegetation is also present in the Cost Reimbursable Task Order. I would assume if the Laptop was provided by the Gov't for use on base, but due to Corona Virus, allowed to be taken off-base, that if damage / loss occurred on-base, the Contractor would be liable to the Gov't under FAR 52.237-2. The fact the laptop is moveable and taken off-base should not upset that determination. The laptop was not declared Government Furnished Property and therefore not added to the contract as part of GFP listing.

    I'm concluding the risk of loss is on the Contractor to repair / replace the laptop unless the Gov't added such as GFP via modification under the contract / Task Order.  If such were added as GFP, the risk of loss should then be reversed and placed upon the Gov't pursuant to FAR 52.245-1 ( h ) ( 1 ). 

  11. According to FAR 45.000(b)(5), computers used incidental to performance of work at an installation are not considered Government Furnished Property (GFP). However, with the COVID aspect and teleworking, under a CPFF contract / task order when a Defense Contractor removes the Government provided laptop from the installation (with permission and issuance of a Property Pass from the Navy/Gov't) for use with teleworking at home (or elsewhere) and that laptop is stolen or damaged through no fault of the Defense Contractor, is the risk of loss on the Contractor, or the Government?

    Property Pass states, in part, 

    "...I understand that I am personally responsible for the property identified above, and that I may be held pecuniarily liable for its loss or damage, unless otherwise relieved of responsibility by Financial Liability Officer and/or Approving Authority recommendation..."

    Under 45.000(b)(5), the incidental aspect for computers appears to be solely applicable while on-base, not off-base. If the laptop was considered "incidental" from the onset under FAR 45.000 (b)(5) and thus not GFP, but no risk of loss to the Defense Contractor, why wouldn't that continue even when the laptop is taken off-base and used with teleworking (notwithstanding any language in the Property Pass)? In other words, if incidental while on-base, why not incidental off-base, and thus risk of loss remains with the Government?

  12. Neil - I wish it was as straightforward as those terms make it. Unfortunately, it is not. The level of effort clause(s) from the Navy contract / task order indicate payment of fee on a per hour basis and is silent as to what happens for providing less than the specified LOE. Please see below:

    HQ B-2-0015 PAYMENTS OF FEE(S) (LEVEL OF EFFORT - ALTERNATE 1) (NAVSEA) (MAY 2010)

    (a) For purposes of this contract, "fee" means "target fee" in cost-plus-incentive-fee type contracts, "base fee" in cost-plus award-
    fee type contracts, or "fixed fee" in cost-plus-fixed-fee type contracts for level of effort type contracts.

    (b) The Government shall make payments to the Contractor, subject to and in accordance with the clause in this contract
    entitled "FIXED FEE" (FAR 52.216-8) or "INCENTIVE FEE", (FAR 52.216-10), as applicable. Such payments shall be
    submitted by and payable to the Contractor pursuant to the clause of this contract entitled "ALLOWABLE COST AND
    PAYMENT" (FAR 52.216-7), subject to the withholding terms and conditions of the "FIXED FEE" or "INCENTIVE FEE"
    clause, as applicable, and shall be paid fee at the hourly rate(s) specified above per man-hour performed and invoiced. Total
    fee(s) paid to the Contractor shall not exceed the fee amount(s) set forth in this contract. In no event shall the Government be
    required to pay the Contractor any amount in excess of the funds obligated under this contract.

    I think I have the answer. Appreciate the quick responses from everyone. 

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