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  1. FAR 52.246-4 is supposed to be used in regular contracts, not just performance-based contracts. What makes performance-based contracts different if it is not incentives?
  2. Say the mail delivery contractor fails to deliver the mail on time. What is the consequence? Terminate the contract? I'm not seeing how this performance-based, as opposed to the same way any other contract is treated. If a party fails to perform, that is a breach of contract. So I guess my question really is, what is the difference between a regular contract and performance-based contracting?
  3. FAR 37.601 appears to only require "incentives" "as appropriate." So that means it an agency can do performance-based contracting without "incentives." Has anyone seen this done before?
  4. In SOS International, CBCA decision in 2014, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiw-vPoqqj6AhVqKFkFHQ-_DecQFnoECBoQAQ&url=https%3A%2F%2Fwww.cbca.gov%2Ffiles%2Fdecisions%2F2014%2FSHERIDAN_09-26-14_CBCA%203678__SOS_INTERNATIONAL__LTD_V_DEPARTMENT_OF_JUSTICE.pdf&usg=AOvVaw2zjCECxnlG552nrjocmzhA, the DOJ Drug Enforcement Agency had a contract with SOSi for linguist services. The solicitation said the offeror had to make sure the single unit rate it proposed was inclusive of many things, including "G&A." SOSi argued that, while it put the "G&A on labor costs" into that single unit rate, it put the "G&A on travel costs" in the travel section, in the Travel CLIN, which was a NTE set by DOJ/DEA. DOJ/DEA refused to pay the G&A on travel costs that was presented in the Travel CLIN claims. SOSi had an expert witness CPA testify that putting the G&A on travel costs in the travel section was standard industry practice, that is how many companies have their accounting computer systems set up. CBCA ruled in favor of DOJ/DEA. By saying "G&A" in the solicitation, the offeror was on notice that all types of G&A had to be rolled up into the single unit rate proposed. If offeror thought that was unclear, it would be a patent ambiguity that it should have protested before the closing date of the solicitation.
  5. The contract only has FAR 52.212-4, the original, not the Alternate I version.
  6. The contract does NOT contain FAR 52.216-7 at all. The contract does not address at all G&A mark-up on travel costs. But that's the contract. In the solicitation, it said in Section L, offeror must use the attached Excel sheet to propose its price. When you look at the Excel sheet, it says at the bottom, the proposed labor rates must be inclusive of overhead, G&A, etc. It does not specify what types of G&A. It is just G&A. So I think that means all types of G&A (G&A on the labor rates, G&A on the travel costs, etc). So if the FFP labor rate was supposed to contain the G&A on travel costs, there is no way that it could be reimbursable under the travel CLIN. The name of the travel CLIN is "Travel & ODCs - Reimbursement for Actuals." Thoughts?
  7. I am talking about post-award invoice submittal, contract type is FAR Part 12 commercial FFP with a travel CLIN that is reimbursement
  8. Is it typical for agencies to allow the contractor to include in the Travel CLIN (which was assigned a NTE in the solicitation) "G&A on travel costs"? I know of one agency that has policy of not paying this, but I am also aware of another agency that did pay it in at least one instance. Is G&A for travel costs an "actual cost" per FAR 31.001"?
  9. This is a ridiculous question, I know, but I'm wondering, does anyone know of any court decisions where an agency tried to do a class deviation to not follow a statute, such as CICA? I'm sure the agency lost, but we need to see the actual court decision.
  10. In the two links above, this topic of "directed subcontract" came up before on Wifcon, in April 2015 and May 2010, respectively. As mentioned in the former, it is strange that the FAR requires a brand-name justification but not a "directed subcontract" justification, and Nash & Cibinic recommends that the CO execute a justification anyways for a directed subcontract situation. This is to prepare for a potential protest. However, for 8(a) direct sole-source contract awards, those cannot be protested. Therefore, while it would be nice for the CO to execute a justification, if the CO decides not to do that, what are the potential consequences? If it can't be protested, it can't be protested, right?
  11. Can an agency require an 8(a) direct sole-source contractor -- such as an Alaska Native 8(a) -- to use a specific subcontractor (a "directed subcontract")? I am aware that "directed subcontract" is a method that is generally allowed, but the examples I saw in GAO and court decisions seemed to all involve competition. Here, this would be a sole-source, and further, the 8(a) direct award cannot be protested. Are there any requirements or protocols the CO must follow to justify why the agency needs to force the awardee to use a specific subcontractor, such as how this meets the agency's minimum needs? I don't see any such requirements in the FAR.
  12. Yes, I know it should only take 3-5 hours typically, good point, but if the evaluators are taking a year, I'm thinking the best approach is baby steps. Get them down to a few days first, then try to get them to get down to a few hours.
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