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Don Mansfield

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Posts posted by Don Mansfield


  1. If it's a cost-reimbursement contract, then the contract would have to include the clause at FAR 52.228-7, Insurance-Liability to Third Persons. That clause requires the contractor to maintain certain types of insurance, unless they have an approved self-insurance program. If Mayhem struck when a contractor employee was getting a ride from the Government, resulting in injury or death, a worker's compensation claim could be made by the employee against the employer. 

    The costs of insurance and indemnification are generally allowable (see FAR 31.205-19). If the work is overseas, see FAR 28.305.


  2. 23 hours ago, lotus said:

    Thanks again, Don.

         When I think of an index, I normally think of the index at the back of a textbook.   Key words and topics are typically indexed.

         When I think of all facts, I include this in my thinking.   Offeror has an internal discussion about the price to offer and decides on how low it can go in negotiations.  That the discussion took place is a fact.  That a decision was made is a fact.  The contents of that decision is a fact.  All are relevant to the evaluation of the offer, and the KO would love to know those facts.

         I'm struggling with indexing those facts.

    here_2_help's #8, "Other Matters" seems like a good place to put other relevant disclosures.


  3. 29 minutes ago, ji20874 said:

    Don,

    Thanks for the link to the DoD memo -- actual, real examples are helpful and instructive as a starting point.

    You're welcome, ji.

    See also 7-2124 of the DCAA CAM (October 2014):

    Quote

     

    7-2124 Administrative Leave Due to Weather-Related Closures

    When contractor personnel receive paid administrative leave due to inclement weather, the allowability and accounting treatment of such payments should be evaluated
    on a case-by-case basis in accordance with FAR 31.205-6. Paid absences are fringe benefits that, per FAR 31.205-6(m)(1), are allowable to the extent that they are reasonable in nature and amount and are required by law, employer-employee agreement, or an established policy of the contractor. The reasonableness of the amount paid is generally not an issue. The issue is whether or not the circumstances warranted the payment of administrative leave. Some factors to consider in determining reasonableness include the severity of the weather conditions and whether other businesses and organizations in the same geographical location were closed. The fact that the Federal Government suspended similar operations in the area due to the weather generally would support that it was reasonable for the contractor to incur the administrative leave costs. If the costs are determined to be allowable, they should be charged in accordance with the contractor’s disclosed or established cost accounting practice for charging paid absences.

     

     


  4. 33 minutes ago, here_2_help said:

    Joel,

    The Changes clause would be the authority. The subcontract was constructively changed when the subK was directed to go home instead of working. The subK was on site, working, and then was sent home.

    Does anybody else here remember how the government handled the (huge) impacts on the Gulf shipyards from Hurricane Katrina? I don't think the remedy was limited solely to schedule impacts. Same principle here.

    Yes. The costs were allowable as fringe benefits if certain conditions were met: https://www.acq.osd.mil/dpap/policy/policyvault/2005-1405-DPAP.pdf

    However, joel is correct that the contractor only gets paid for hours worked, at least under a Government T&M contract. We don't know the exact payment terms in the subcontract, but if they are essentially the same as the FAR clauses for T&M payment then the contractor would not be entitled to payment for hours not worked. Presumably, these costs would be recovered through the hourly rate, which should include indirect expenses. 


  5. 3 hours ago, here_2_help said:

    Let me get this straight. Are we saying that a prohibition on paying profit that is found in the prime contract would be enforceable in the subcontract between the prime contractor and its supplier(s)? Wouldn't that depend on whether or not the prime flowed the clause down to the subK?

    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."


  6. 57 minutes ago, contractsmgr said:

    1. I view the subcontractors rate (whatever that is) as a cost to me. therefore they should not have to break down their rate. It should be accepted as it is.

    2. because the HWP was modified, it was a constructive change and as such, profit is allowable.

    1. I think that's reasonable.

    2. Makes sense to me.


  7. 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.


  8. On 11/4/2018 at 9:53 AM, lotus said:

    Thanks Don.  It is a reference table for cost buildups.  Maybe that's a start, but it hardly seems to include "all facts."

    That model actually complies with the Instructions in FAR Table 15-2. The instructions state:

    Quote

    The requirement for submission of certified cost or pricing data is met when all accurate certified cost or pricing data reasonably available to the offeror have been submitted, either actually or by specific identification, to the Contracting Officer or an authorized representative.

    The exhibits reference specific files where the cost or pricing data are contained and can be furnished "immediately upon request". 


  9. On 11/3/2018 at 9:45 PM, govt2310 said:

    Here's another idea: what about considering a "subscription" to a software (a SaaS deal) to be a "product" instead of a "service"?  I realize, the phrase SaaS includes the word "service" (Subscription-as-a-Service).  But if the vendor provides the customer with an account/passcode to access the website for the subscription, then once the vendor has done that, then the vendor has "delivered" the "product," so the customer (the agency) must pay the vendor.  This would be "paying in arrears" instead of "advance payment," so it is not that this "subscription" is an exception to the general rule of paying in "arrears," but rather, it is paying "in arrears."  What do you think?

    Sounds reasonable to me. ji seems to have dealt with this specific issue before. Whatever he did was probably thoughtful and efficient.


  10. 12 hours ago, contractsmgr said:

    There has been much internal discussion between the govt and prime/sub contractors regarding profit being an allowable cost when directed to execute heavy weather plans for hurricanes, snow storms or the like.

    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?


  11. The exception is actually for "publications", which the GAO has interpreted as:

    Quote

    Standing alone, Technet, Knowledgebase and the newsletter clearly would constitute publications under section 3324(d). The newsletter is a publication in the traditional sense. Technet and Knowledgebase, however, are published using electronic technology. Technet is published on CD- ROM; Knowledgebase is an online database of articles. Nevertheless, we conclude that they constitute publications for purposes of section 3324(d) as well. We believe that it is sensible to interpret federal law to accommodate technological advancements unless the law by its own terms expressly precludes such an interpretation, or sound policy reasons exist to do otherwise. 71 Comp.Gen. 109, 114 (1991). In this regard, for example, section 3324(d) covers materials printed on microfilm and microcards. 41 Comp.Gen. 211 (1961). Section 3324(d)(2) refers to materials "printed or recorded in any way for the auditory or visual use of the agency." We see no reason why it should not apply to electronic materials.

    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")?


  12. 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


  13. 1 hour ago, CBCoops88 said:

    The VA job would be managing IDIQs for supplies and services. It sounds very repetitive. The work at the DOD position is for construction contracting, which seems much more engaging. The best CO's in my office all worked in the DOD before coming to this civilian agency. I have a sense that I would grow and learn much more in the DOD job. But I feel foolish considering turning down a 12/13 position. 

    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. 5 hours ago, flitzer said:

    My office feels that when quotes have a significant spread that those quotes are not valid and cannot be used as a means of price reasonableness; additionally, my office considers the acquisition as a sole source procurement.  For example, consider a contract was solicited and the quotes that came in were:

    $300,000.00

    $425,000.00

    $1,200,000.00 

    If I were to attempt to justify the award on competition per FAR 13.106-3(a)(1) my CO would reject this proposition, and ask me to use another method.  I understand with that with such a large spread, I would have to compare the lowest price with past prices paid or ask the contractor for sales data, but I can't find a reason to justify considering this as a sole source procurement because the significant price spread.  Consider all of the quotes responsive in my example.   And consider this as a commercial item and LPTA is being used as the evaluation method. 

    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:

     

    Quote

     

    6.1.1 Other Proposed Prices

    [...]

    You should normally place less reliance on comparisons with other proposed prices when:

    • [...]
    • The apparent successful offeror's price is significantly different (higher or lower) than the next rated offeror. This could indicate that there is a mistake in bid, a misunderstanding of the contract requirements, etc. In this situation, you should take steps to verify the offeror's bid and/or use another technique to analyze the price.

     

    I would look for other data points to determine the price fair and reasonable.

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