Tzarina of Compliance

It is to bridge the time before the new award is finalized.

Oh and wouldn't T&M be severable?

Interesting. I know there is no LOE in T&M, but for some reason, the contract included a limitation on specific labor categories by the level of effort (eye roll). So the contract is basically expiring and there is still a ton of money left. The work was delayed due to a potential Government shut down due to the unavailability of Government staff, but since the shutdown never happened, the GC is not agreeing to excusable delays. The extension will not need to add money just to bridge the work before the new contract kicks in. So are you saying that a mutual extension agreement is sufficient? I love that.

What are the options to extend the period of performance under a T&M contract for non-commercial services without an increase in ceiling on $$ or LOE? There are no pre-priced options in the contract and no excusable delays. Would a CO be authorized to grant the extension without a J&A?

I read the discussion before asking the question. It is one of the classics with Vern's Hamlet reference 🙂 I guess the "furnishing for performance" issue is easier to address when you actually have a scope of work that makes sense and requires deliverables. Under a cost type scope where we are throwing spaghetti at the wall to see if they will stick and every year we agree on a new work plan for the spaghetti, it is tough to figure who is whispering in the prime's year and who is providing services for performance. Plus leases, commodities and so on do not whisper. A Prime who is required by the contract to move its ops to a foreign country, set up shop and then provide advisory services on-demand is contracting all the time with various companies for various things. It would be good to understand what is an ancillary services or goods in this case for at least competition requirements and flow downs.

The reason for the question: Does competition in subcontracting apply to such procurements? Does consent? Also mandatory clauses flow downs are required for "subcontracts". FAR 52 does not define subcontract. FAR 2.1 does not define subcontract. So do I flow down only to "subcontracts" as defined in FAR 44?

Cost Reimbursement Prime Contract. FAR 44 defines a "subcontract" and provides rules for pricing, consent and flow down requirements as well as CPSR review. But what about procurement actions by the Prime Contractor that do not strictly meet the definition of "subcontract" under FAR 44? Or do they? Example: Contract is to provide technical advisory services to a ministry in a foreign country. The prime subcontracts part of the advisory services - thats definitely a subcontract. Then prime uses all kinds of other professional services, legal, accounting and IT to help it (the prime) set up an office, comply with the contract's terms etc. The contract requires that the prime sets up an office in a specific location to provide those technical services (in a foreign country). So the prime leases office space (lease is a contract), buys furniture etc. Hence, Prime conducst all kind of procurement actions, which in my view do not meet the definition of subcontract in FAR 44: legal help, hotels, leases, buying furniture for the office. Are these technically providing something for the performnace of the prime contract? Some of these actions may be done through a PO or a "contract" (as defined in FAR 2.1. Are there requirements for competing such auxillary services and purchase of goods? Or just documenting why the price is reasonable enough. Are there any flow down requirements for such procurement actions? Thoughts?

This is helpful. Thank you!

Thank you very much!

The contract is cost-type and subject to cost principles. FAR 31.205-46 states that the reimbursement of per diem can not exceed the GSA or DSSR rates. I know that nothing else applies. I was more looking for Airbnb being used for lodging under per diem limits?

Does anybody know if contractors may use Airbnb for lodging (subject to safety etc) and bill up to the GSA/DSSR per diem rate for lodging?

Many many thanks! All great points. The Project Manager did not receive a notification from the system, it was an email from the COR to say that an assessment was prepared and would be available in the CPAR system, which the PM ignored. It is unclear where the system notification went, the contractor could not find it and they looked through their CEO's emails as well as any SAM POCs. I am totally on board with "ignorance of the law is not an excuse", but in this situation, the contarctor did try to explain the reasons to the CO and got nowhere, becuase CO does not think they can reopen it alone - which I think you confirm is true. This is super helpful infor that a CO would have to go through the helpdesk, which is what I was trying to assertain. Thank you very much.

This is very good to know. Thank you.

Thank you, Sir. Very good suggestions as always! I feel good about this since this was partially my advice as well. The contractor did get help and did write a nice letter to the CO explaining all the circumstances. They did not copy the suggested others - which would have probably helped as you suggest, Vern. The CO responded with one sentence saying "We have no control over the CPAR system once its finalized, so your request is denied. " This is a typical response for this agency, which is basically a non-response. This is why I was asking in the first place who we may think has the authority to pull the final CPAR if we escalate. Before your very kind suggestion above, I was already thinking that SBA and agency SB advocate should be involved. @joel hoffman's incredulity is justified. Yes this was a Broad Agency Announcement, yes this is a first-time contractor and yes, the agency thought a complex CPFF would be the best idea for a contractor that has never done this type of contracting before. The employee issue was that the employee was a Project Manager and received 2 notifications that the last CPAR was ready. The Project Manager had no idea what CPAR was or why he was being told they were ready for comment and then decided to delete all the emails before leaving the company. The contractor recovered his deleted emails and found that the agency did in fact provide a notification to the Project Manager (who was never designated as the POC for CPARs). I think it is probably time to go "claim" and get full legal assault since the contractor is already losing work based on the Selecting officials looking at this rating. Thank you all as always for a great discussion!

Super interesting. @Vern Edwards (hi, Vern!) is correct, I do not work for the contractor, simply posting about a situation I am being asked to help with. I know the agency in question has a CPARs guidance to its COs that says on page 1 - Discuss the CPARs system with the contractor during kick-off..... 🙂 This was never done for this very small business, which was the first time contractor, which actually applied under a BAA and was told by the agency that a CPFF term contract would be most appropriate for their concept - this was done as part of a so-called "co-creation" with the agency, in an effort to attract non-traditional contractors. So if I understand correctly - there is no FAR clause that implements CPARS (FAR 14.1503 just sets out procedures for the agency), how is a new contractor supposed to know that they will be reviewed and what the timelines are? In this case they had no clue and they never once commented to any of the 4 CPARs received during contract performnace and the agency never asked "why" - do you think this would be a good argument to ask an Ombudsman or HCA to revert? Thank you again!

I do not think they have grounds for a dispute since they failed to act before the CPAR was final, but they think they may be able to appeal to Ombudsman or HCA but I am not clear on whether the agency can retract a CPAR once it has been finalized.

Hello all: Not able to find the answer for this question. Went through CPARs guide, all the training, the agency's own policy, and the FAR 42. Situation: New contractor. First direct contract with USG. The contractor failed to understand the CPAR process and never commented on negative CPAR. CPAR was finalized (final for the entire contract). The notifications went to an employee who was no longer with the company. Contractor totally at fault, but the CPAR was in bad faith and the rating was inconsistent with all the other action by the Government, including paying full fee (CPFF Completion) for "satisfactory" performance. The contractor can not dispute since they failed to respond within the timelines but is appealing to the agency. Question: is there a way under any circumstances where the agency is able (i.e. is such an action even allowed) to withdraw a finalized CPAR from the system to revise? Would this be only a Procurement Executive level decision? Thank you for any insights.

Thank you, I was considering this too. I think what I am more interested in is the purpose. What is the purpose of consent? Why would they need one if they issued, say, something like an IDIQ with fixed price orders and guaranteed minimum, but not a BOA, which is not really like the one described in the FAR. FAR BOAs are basically admin agreements and orders are still competed under FAR 6 etc. This sub arrangement seems more like a single holder IQC of sorts except it has no guaranteed min. I am just trying to understand why would I be concerned about consent in one case but not the other. Maybe I am overthinking this.

So this is a weird one. A prime contractor is performing under CPFF completion contract (non DOD). FAR 52.244-2 requires consent to subcontract (the prime does not have approved CPSR). The prime issued what they call a "BOA" for services in the amount of $2,000,000 (non commercial). It is basically an umbrella agreement which specifies how future orders will be priced but does not guarantee a minimum. Only one BOA, and only one BOA holder. The prime anticipates issuing orders of less than $250,000 each on fixed price basis once the work order is priced by the BOA holder under the stated methodology (includes pre-priced labor rates which would be used together with Other Costs to price FFP orders). FAR 52.244-2 requires consent to subcontract for fixed price subcontracts over SAT or LH/Cost type/T&M subcontracts of any value. The Prime does not seek consent since it says the BOA is not a contract and therefore does not meet the definition of subcontract for consent requirements. Since each order under this "BOA" is less than SAT, each order is below the consent requirement. Does this sound right? Consent would not be required?

Thank you!

Thanks, Vern. So since the two definitions are similar but different, would you say that contracts to "furnish supplies or services for performance of the prime contract" and "agreements calling for supplies or services required for performance of the prime contract" mean different things? One is carrying out part of the scope and the other means anything purchased to carry out scope? I am not an expert in nuances of this and I am having a disagreement on interpretation of what could be counted towards small business participation.

Question which may have been answered here but I can not find, so grateful for any redirection. When creating or reporting on small business utilization under FAR 52.219-9 individual plan for each contract, what is considered a subcontract? The definition in FAR 52.219-9 states that Subcontract means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor calling for supplies or services required for performance of the contract or subcontract. FAR 44 defines Subcontract means any contract as defined in subpart 2.1 entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders. Does this mean that only subcontracts (as defined in FAR 44) are counted towards the SB goals or "any agreements", including auxiliary services and goods procured by the Prime which are not specifically required in the performance of the scope (e.g. purchase of supplies, use of travel agents for airline tickets, hotels, legal services to help interpret labor law in a specific jurisdiction where the contract is performed etc)? FAR 52.19-9 allows inclusion of portions of subcontracts allocated to indirect pools which contribute to performance to be counted, so presumably this means that such "subcontracts" are not the same as FAR 44 subcontracts requiring consent, flow downs etc. Anyone has any thoughts on this?

Contractor prevailed and rightly so. So we had to do a J&A, new period of performance and new fixed fee as I thought we would. You all rock! I love this place.

Agree! Much appreciate everyone's time and support !

I ❤️ you people!!!