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Don Mansfield

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Everything posted by Don Mansfield

  1. Hypothetically, if there were such a term in the prime contract (i.e., the Government won't pay subcontractor profit), the Government could disallow the amount of subcontractor profit in its dealings with the prime contractor, regardless of whether the prime flowed the clause down to the sub. However, I don't think that would be a reasonable interpretation of "all reasonable, allowable and allocable costs resulting from the Contractor's implementation of the HWP based on such Government direction."
  2. 1. I think that's reasonable. 2. Makes sense to me.
  3. Ok, so the clause only provides for the reimbursement of costs and the Government is willing to reimburse your costs. But you are saying the Government directed you to do work that was not contained in the Heavy Weather Plan, correct? And you seek a price adjustment for that work, correct? Your argument is that the Government constructively changed the agreed-to Heavy Weather Plan? If that's the case, then I think you should seek an equitable adjustment under the Changes clause.
  4. There is no categorical distinction between "university research" and "commercial item". If the research to be performed by a university meets the definition of "commercial item", it's a commercial item. I would expect some research done by universities to meet the definition of "commercial item".
  5. That model actually complies with the Instructions in FAR Table 15-2. The instructions state: The exhibits reference specific files where the cost or pricing data are contained and can be furnished "immediately upon request".
  6. Sounds reasonable to me. ji seems to have dealt with this specific issue before. Whatever he did was probably thoughtful and efficient.
  7. Is there a clause that entitles the contractor to an adjustment when directed to execute a heavy weather plan? If so, what does that clause say?
  8. Take a look at the "Model Proposal" on p. 27 of this: https://www.dcaa.mil/Content/Documents/DCAAM_7641.90.pdf
  9. The exception is actually for "publications", which the GAO has interpreted as: See https://www.gao.gov/products/403305#mt=e-report Wouldn't it be sensible to interpret "publication" to accommodate a set of instructions or programs instructing a computer to do specific tasks (i.e., "software")?
  10. You can read the DAR Council's reasoning on p. 26099: https://www.acq.osd.mil/dpap/dars/dfars/changenotice/2014/20140506/fr_2012-D055.pdf
  11. Retreadfed, The only DFARS clauses authorized for use in contracts for commercial items are listed at DFARS 212.301(f). DFARS 252.246-7007 is not listed. Also, note that the prescription for the clause doesn't contain the phrase "including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items." The DAR Council uses that convention to indicate a provision or clause is for use in a solicitation or contract for commercial items. So, if a prescription is silent regarding applicability to commercial items, it doesn't apply. Couldn't be more confusing. https://www.federalregister.gov/documents/2013/06/25/2013-15030/defense-federal-acquisition-regulation-supplement-solicitation-provisions-and-contract-clauses-for
  12. If the prime contract is commercial, then it shouldn't contain DFARS 252.246-7007.
  13. Don Mansfield

    Advice on Job Offer

    Maybe it's a matter of perspective. Would you feel foolish considering turning down a position that involves comparatively uninteresting work, where you would expect to learn and grow less? All other things equal, it would be foolish turning down a 12/13 position and taking a 12. But, all other things are not equal.
  14. Don Mansfield

    Price Spread on Quotes and the Validity of Quotes

    While I don't think the acquisition would become sole source, I would be suspicious if I received a spread like that. Volume I of the Contract Pricing Reference Guides cautions: I would look for other data points to determine the price fair and reasonable.
  15. Don Mansfield

    Charging Fee for use of IDIQ

    Are you familiar with the Miscellaneous Receipts statute? See p. 6-166 of the GAO Red Book. There are some agencies, like GSA, that collect a fee from contractors who sell to other agencies under their contracts. However, I believe they have the statutory authority to do so.
  16. Don Mansfield

    Charging Fee for use of IDIQ

    So your fee would be built into the pricing in the IDIQ contract? Then the contractor would send you a check?
  17. As long as the modification is within the scope of the competition, then I don't think it would run afoul of CICA. The fact that the work is R&D and the contract was properly awarded under a BAA, I think it would be difficult for a third-party to win a CICA protest. However, a high likelihood that it's ok is not the same as a rule that it's ok.
  18. @GMR, What is the base period of performance of the order? How many options?
  19. What proof do you have for your assertion that a J&A would not be required for such a modification?
  20. In the OP's scenario, the Government lost its right to exercise the option. The proposed bilateral modification would be to add the work originally contemplated by the option that was included in a contract awarded under a BAA. Having said that, what proof do you have for your assertion that a J&A would not be required for such a modification?
  21. So what? Do you think the GAO or Court uses the "typical Government Contracting Officer response" standard to decide whether a given modification is within scope? The determination of whether a given modification is within the scope of the contract has nothing to do with the specific solicitation technique used to form the original contract. See Neil R. Gross & Co., 69 Comp. Gen. 247 (B-237434), 90-1 CPD ¶212: That's the test. However, you seem to want to infer an exception to the general rule-- While the nature of R&D work is uncertain and the scope is comparatively less defined than for other contracts, your claim goes too far. Taken to its extreme, you would have to say that it's impossible for the work covered by the unexercised option to be out of scope. It may or may not be within scope.
  22. Don Mansfield

    Data Rights under an SBIR contract

    Maybe somebody wrote something that hurt his feelings.
  23. @CharterParty, What matters is whether the work being added by the modification is "within the scope and under the terms of an existing contract." The method used to place the original contract (FAR part 15 v. BAA) is not determinative.
  24. Don Mansfield

    Data Rights under an SBIR contract

    I never heard of him.
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