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Don Mansfield

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Everything posted by Don Mansfield

  1. Right. The IG still thinks cost data is relevant when contractors use market pricing. It's likely more of a distraction when dealing with the type of CO @here_2_help described, which may be why Transdigm didn't provide it.
  2. Here's another thought for your consideration. In a FAR part 12 acquisition, the solicitation could invite offerors to propose their own version of FAR 52.212-4 (except for the paragraphs that can't be tailored). The Government could evaluate those terms and conditions for conformance to relational contracting principles. Also, you could evaluate the offeror's experience and past performance with relational contracts
  3. The Government wanted cost data and Transdigm wouldn't provide it. However, they did provide commercial sales data for the same or similar items (according to their Congressional testimony).
  4. Transdigm did provide information--they just didn't provide everything the Government requested. Deciding not to disclose information is part of a negotiation. Contrary to what the DoD IG and Congress believe, there's nothing wrong or shameful for withholding information that would weaken your position. Not trying to argue with you @joel hoffman https://www.pon.harvard.edu/daily/negotiation-skills-daily/when-not-to-show-your-hand/
  5. @KeithB18, Thanks for sharing. Regarding your thoughts, is the assumption that you would be constrained by the FAR? You mentioned OTAs in the beginning of your post, but your bullet points all seem to assume the award of a procurement contract.
  6. I do not agree with that. The training at issue was of a type offered for sale in the commercial market place. Look at the ads on this page.
  7. Yes, it would engage because of a sensor malfunction. What was the probability of a sensor malfunction? What was the probability of a crash in the case of a sensor malfunction?
  8. Watched this over the weekend. Thanks for the recommendation. The one problem I have with the criticism of Boeing and the FAA is that they are being judged on the result of their decision to not ground the 737 MAX. At the time of the decision, it may have been reasonable to believe that the risk of catastrophe was very low. Perhaps the probability of another crash within the time it would take to fix the problem was the same as a non-737 MAX crash. Yes, a second crash happened, but was it reasonable to believe that a second crash would happen based on the data available at the time?
  9. One can come up with some scenarios that make application of FAR part 19 tricky (like Vern has with cloud services), but I don't think applying FAR part 19 is that difficult in your specific situation. The contract will require performance outside the United States and its outlying areas. At the time of the set-aside decision, you don't know who the contractor will be, so you can't conclude that any work will be done in the United States or its outlying areas. All you can have is an expectation. Therefore, FAR part 19 wouldn't apply. The dilemma you face is that the SBA regulations requiring set-asides explicitly say they apply regardless of place of performance. So, if the small businesses that are pestering you to set aside the contract decide to protest, they have a good chance of winning. Historically, the GAO and COFC have deferred to the SBA regulations when there is a conflict with the FAR.
  10. Carl, At the time of contract reporting, you would know that information. It would either be specified by the Government or you would have a response to FAR 52.214-14 or 52.215-6. Unless the Government is specifying place of manufacture, you wouldn't know before soliciting offers.
  11. Unless the Government is specifying place of manufacture, I don't see how "place of performance" could be interpreted as "place of manufacture" for purposes of applying FAR part 19.
  12. 1. How would you know, prior to receiving proposals, where the personnel would be hired and that the indirect cost pools are for personnel who are located in the United States? 2. How would you know, prior to receiving proposals, that you were going to hire contractors in the US who would then go and hire personnel in the US and send them to Egypt and also maintain a home office in the US which is paid for by indirect costs? I ask because the decision whether or not to set aside is made before soliciting proposals.
  13. True, but see the prescription for the provision at FAR 52.219-1, Small Business Program Representation:
  14. @Tzarina of Compliance, Note that the authority at FAR 6.302-4(a)(2) would likely trump set-aside rules.
  15. The dust has not settled on this issue. The FAR Councils' rationale for concluding that set-asides are discretionary overseas is not supported by the facts. See the ABA's comments submitted in response to the proposed rule for FAR Case 2016-002: https://www.regulations.gov/comment/FAR-2016-0002-0025 If I were you, I would go along with the agency's position unless the final rule comes out making set-asides mandatory regardless of place of performance.
  16. One summer when I was in college, I worked at Brookhaven National Laboratory. It is a DOE lab that was run by an M&O contractor (Batelle) at the time. I never figured out exactly what my job responsibilities were, but I was part of a "crew" that spent a lot of time in a warehouse reading the newspaper and playing cards. We were once called on to ride out to the Relativistic Heavy-Ion Collider (RHIC) and remove some trash in the form of a broken down steel structure. When we left, the driver passed the road to the dump instead of turning. I asked where we were going. He said "we need to find out if this stuff is radioactive." I asked "what if it is?" "Well, then we'll have to go to medical" he said. "What will they do?" I asked. "They'll have to scrub off the first layer of skin" he said. Luckily the stuff wasn't radioactive. Good times.
  17. I mean my subcontractor rate plus prime contractor markup would be no more than the loaded rate the prime currently charges the client for me.
  18. It seemed like you were headed toward cost-reimbursement contract, which I think would be more trouble than FFP or T&M/LH. I've been in the same position as you and have set up an LLC, but never pulled the trigger to become a subcontractor. If I ever do, I would prefer a FFP LOE or LH subcontract with bimonthly payments. I would charge whatever rate would result in no increased cost to the client.
  19. I don't think the FAR or SBA regulations provide definitive criteria for determining place of performance, so I would interpret it the way ji does (i.e., to the advantage of the CO).
  20. The requirement for a "unit price" doesn't apply to T&M/LH. See FAR 4.1005-2(c)(3). Do you think that "hour" is the unit of delivery under a T&M/LH contract?
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