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Tzarina of Compliance
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Posts posted by Tzarina of Compliance
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1 hour ago, C Culham said:
Thoughts
J&A? Or creation of and approval of a JOFOC? Neither. Maybe a just memo to the file that explains the extension.
Mutual agreement of the parties - Yes I know it is non-commercial but remember the parties to a contract can mutually agree to a change without the need of a clause to do so.
Consideration? If I were the CO I would want consideration.
Pursuant to FAR 16.601(c) one could imagine the possible need to extend the period of performance of a T&M contract. Emphasis added "Application. A time-and-materials contract may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence."
Scope? If the need for extension is to pursue some type of result (the work) that was reasonably anticipated by the procurement it would seem scope is not an issue.
Some of my thoughts came from this based on the idea that a T&M contract is sometimes referred to as a hybrid of a cost reimbursement/fixed price contract.
Oh and wouldn't T&M be severable?
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1 hour ago, C Culham said:
Thoughts
J&A? Or creation of and approval of a JOFOC? Neither. Maybe a just memo to the file that explains the extension.
Mutual agreement of the parties - Yes I know it is non-commercial but remember the parties to a contract can mutually agree to a change without the need of a clause to do so.
Consideration? If I were the CO I would want consideration.
Pursuant to FAR 16.601(c) one could imagine the possible need to extend the period of performance of a T&M contract. Emphasis added "Application. A time-and-materials contract may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence."
Scope? If the need for extension is to pursue some type of result (the work) that was reasonably anticipated by the procurement it would seem scope is not an issue.
Some of my thoughts came from this based on the idea that a T&M contract is sometimes referred to as a hybrid of a cost reimbursement/fixed price contract.
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.
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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?
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11 hours ago, Neil Roberts said:
I wonder if anything has changed since this 2016 WIFCON discussion https://www.wifcon.com/discussion/index.php?/topic/3573-definition-of-subcontractor/.
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.
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41 minutes ago, C Culham said:
So, while you indicate FAR Part 44 and FAR 2.1, is it not the contract that counts with regard to the definition? I say this as it seems you are pitting FAR 44 against FAR 2 but consider this.
If FAR 52.244-2 is in the contract it says this "Subcontract means any contract, as defined in FAR subpart 2.1, entered into by a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders." The definition of "subcontract" in FAR part 44 (44.101) says essentially the same thing. And if FAR 52.244-2 is not in the contract then the definition clause 52.202-1 applies and it says this "When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless-". In essence everything leads back to FAR 2.1 so my thought is they are subcontracts as you have noted in your original post.
So the question for me is are you wondering? Do you have to submit subs for consent? If so why not ask the CO for the contract what they think or just submit them and see what they say?
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?
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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?
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8 minutes ago, Vern Edwards said:
I don't know the answer, but see this 2021 Air Force memo, "Clarifying Guidance for Nonconventional Lodging (Airbnb, VRBO etc.)"
https://www.buckley.spaceforce.mil/Portals/13/AirBnB policy.pdf
There are other memos like it by other agencies and sources.
https://combadi.com/can-you-use-airbnb-for-government-travel/
This is helpful. Thank you!
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15 minutes ago, Retreadfed said:
The travel cost principle, including the portion of the government travel regulations cited there, does not limit contractor employees in regard to where they may stay while in a travel status. Thus, there is no regulatory restriction on contractor employees staying at an Airbnb. Airbnb operates on a rental basis. If the employee pays for a rental while on covered travel, the employee has incurred a lodging expense. If the contractor reimburses the employee for that cost, the contractor has incurred a lodging expense subject to the travel cost principle. As long as the daily rental cost and M&IE expenses do not exceed the daily per diem amount for the locale, I see no reason why it should not be allowable.
Thank you very much!
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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?
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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?
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7 hours ago, Contracting_in_Wonderland said:
CO here, though I may be more reasonable than who you are dealing with. A CPARS assessment can be "reopened" or an addendum added. The CO/agency cannot do it but they can request it from the CPARS help desk. The CO can modify the ratings as previously assigned or leave as-is and allow the contractor to take its 60 days to review and provide comment to go through the non-concur process. That said, knowing the company is trying to take issue with the assessment, there's not a lot of incentive for the govt to reopen it as then the agency would have to "deal" with the non-concurrence process whereas at current, it's a closed case.
To be blunt, the "woe is me, we didn't know" angle can get tiring as well. I know dealing with govt acquisitions is complicated and govt POCs are not always/often helpful, but for me, I do expect some level of effort from the industry partner. You said the PM "was never designated as the POC" and I assume by that you mean your client hadn't specifically given that person's name. By virtue of the PM receiving notifications, it means he was put into the system as the Contractor Rep. He would have received an email at the time he was put into the system with information about the award, agency POCs, and how to register his account for access. (This should occur right around the time of award of the contract if the agency is registering timely.) He would have also received an email when it went to the Assessing Official and another when it was sent to the Contractor for review and comment. Reminders are also sent. Negligence on his part does not make it the Government's issue to deal with. The Assessing Official can also see a log of when users have looked at the record. If the PM happened to look at the record, that will not bode well for your client as well. Over the years I've been told "we didn't get notifications" or "it went to the wrong person" yet I could see when they logged in to review it. Whoops! (I do not know if this information can be seen from the Contractor Rep view.)
Now onto my more reasonable approach, if a small business reached out and expressed clearly the five things that Mr. Edwards indicated in his post above, I'd be more willing to at least discuss the issue before deciding on whether or not to reopen. Not only would this likely be easier than any other action the firm might choose to take (claims and the like) but would be an olive branch for a small business contractor that is new to the Federal space and could really use the more accurate assessment as it'll be the only one in the system. **Note that none of the above would excuse the govt for putting in patently false information in the assessment. It is not uncommon that whomever drafts the assessment doesn't fully understand the process. The Assessing Official may either a) not read what the Assessing Official Rep entered or b) not fully know the ins and outs of performance and therefore accepts what is written. Either of these scenarios can lead to assessments that do not jive with reality.
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.
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15 hours ago, Retreadfed said:
Tzarina, I ran into a similar situation a few years back. In that situation, the contractor POC for CPARS left the contractor, and the contractor sent an e-mail to the CO informing her of this and requesting another individual be substituted as the new POC. The CO never responded and sometime later sent the draft CPARS to the old employee's e-mail address resulting in the contractor never having a chance to comment on it. The contrafctor later filed a claim on another matter regarding the same contract. That claim went to mediation before an appeals board where it was settled. Although the CPARS issue was not part of the claim, it was part of the settlement and the government was able to let the contractor make comments on the CPARS.
This is very good to know. Thank you.
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5 hours ago, Vern Edwards said:
@Tzarina of ComplianceI presume that what the contractor wants is (1) to submit comments on the CPARS rating, (2) to have the agency consider them, and (3) to persuade the agency to favorably revise the CPARS rating. I presume that the contractor considers the CPARS rating to be a serious problem.
In light of the fact that the contractor missed the deadline for submitting comments, I doubt that the bureaucracy will be moved by a mere request submitted to the contracting officer, although anything is possible. Thus, I recommend a full-court press.
The contractor should write to the CO, certified mail, return receipt requested, and (1) explain the situation, (2) explain the failure to comment within the time allotted, (3) make the comments on the rating, (4) explain the actual or prospective effect of the rating on the contractor's business prospects and on its employees, and (5) request that the CO favorably revise the rating. (The contractor may want to ask for help in writing a good letter. It should reflect well on the contractor's intelligence.)
The letter should not be accusatory or say anything about "bad faith" on the part of the agency. It should not blame anyone for anything. Treat the problem as a misunderstanding. Don't make threats. Don't give anyone any reason to be defensive. Politely ask for a response within 30 days. Thank the CO in advance for considering your request.
The letter to the CO should show that copies have been sent, USPS certified mail, return receipt requested, to:
- the agency small business specialist,
- the agency SBA procurement center representative,
- the chief of the agency contracting office,
- the head of the agency contracting activity,
- the agency head,
- the contractor's senators,
- the contractor's House representative,
- the contractor's attorney, and
- any industry association to which the contractor belongs.
When sending copies of the letter to the senators and House representative, do so under a cover letter asking for their assistance in persuading the agency to consider its comments on the CPARS rating.
The idea should be to make the CO wonder if its worth the prospective trouble of refusing to revise the rating.
If what I have suggested doesn't work, then the contractor can try submitting a claim. It will need a lawyer. But that probably won't work either.
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!
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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!
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2 hours ago, C Culham said:
No insight but my mind went to why the HCA or higher, why not the CO? Did a little research and found this. https://www.asbca.mil/Decisions/2021/62586 Skyquest Aviation, LLC 1.7.21 Decision.pdf
So try and see if the CO would consider a change, if not then maybe file a claim under the Disputes Act.
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.
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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.
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10 minutes ago, Don Mansfield said:
The applicable definition of "subcontract" is at FAR 44.101:
Contract is defined at FAR 2.101:
So, if the prime truly has a BOA as described in the FAR, what they are saying sounds right.
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.
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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?
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52 minutes ago, Vern Edwards said:
FAR 52.219-9 defines subcontract as follows:
FAR 44.101 defines subcontract as follows:
The key question is whether the parties who must interpret those sentences interpret them to mean the same thing or different things, and I don't know the answer to that question.
The most obvious difference is between "agreement" and "contract." Every contract is an agreement, but every agreement is a contract. Agreement is arguably more inclusive.
I don't think there is a meaningful difference between "calling for supplies or services required for performance of the contract or subcontract" and "to furnish supplies or services for performance of a prime contract or a subcontract."
But I can't say how the clauses are interpreted by interested parties.
Thank you!
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1 hour ago, Vern Edwards said:
The definition of subcontract in FAR Part 44 does not apply to FAR Part 19 or to any provision or clause prescribed in FAR Part 19.
See FAR 2.101(a) and (b).
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.
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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?
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On 5/9/2022 at 6:37 PM, joel hoffman said:
How did it work out Tzarina? 🤠
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.
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On 4/28/2022 at 10:16 AM, ji20874 said:
Really? Like the old hymn, Do What Is Right, Let the Consequence Follow. If you believe a procurement should be set aside, then do it! Don't wring your hands and expect the FAR to be re-written to mandate the set aside. You have the discretion, so do it!
Do it, Tzarina! You already have the discretion to do as much market analysis as you want to -- do it!
If there is a problem with your organization, the problem is with your organization -- your problem is not with the FAR text.
Agree! Much appreciate everyone's time and support !
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Extensions of Time under Time and Material (non-commercial) contracts
in Contract Administration
Posted
It is to bridge the time before the new award is finalized.