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here_2_help

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Posts posted by here_2_help

  1. Vern,

    Why quote the SBA regulations? Because I find it helpful to review the actual language of the regulations, rather than to rely on somebody's summary of what they think the regulations say. The OP stated "A section from a publication summarizing a recent SBA Final Ruling has concerned management in my company" and I wanted to make sure the person had the actual regulatory language to address those concerns. The stuff from FAR 16.601 was just red herring, to my way of thinking.

    H2H

  2. 13 CFR Section 121.103 (f) --

    (1) Firms owned or controlled by married couples, parties to a civil union, parents, children, and siblings are presumed to be affiliated with each other if they conduct business with each other, such as subcontracts or joint ventures or share or provide loans, resources, equipment, locations or employees with one another. This presumption may be overcome by showing a clear line of fracture between the concerns. Other types of familial relationships are not grounds for affiliation on family relationships.

    (2) SBA may presume an identity of interest based upon economic dependence if the concern in question derived 70% or more of its receipts from another concern over the previous three fiscal years.

    (i) This presumption may be rebutted by a showing that despite the contractual relations with another concern, the concern at issue is not solely dependent on that other concern, such as where the concern has been in business for a short amount of time and has only been able to secure a limited number of contracts.

    (ii) A business concern owned and controlled by an Indian Tribe, ANC, NHO, CDC, or by a wholly-owned entity of an Indian Tribe, ANC, NHO, or CDC, is not considered to be affiliated with another concern owned by that entity based solely on the contractual relations between the two concerns.

  3. I'm unclear as to the relationship between the incumbent contractor and the government's inventory. How did the government acquire title? Is the inventory contractor-acquired (and reimbursed) under a cost-type contract? If not, what's the story?

    Does the winning contractor need to acquire title, or can it simply be permitted to use the government's inventory at no cost (which would be a cost avoidance)?

    Hope this helps.

  4. On ‎6‎/‎20‎/‎2016 at 7:24 AM, PepeTheFrog said:

    Surapak,

    You should carefully choose the best answer in this thread. Confidently present that answer to your leadership as the way forward. If anyone questions your analysis, explain how you quoted the two sentences to this online message board, and then selected the superior answer.

    Make sure you get full credit for being innovative by selling this method as "cost-effective crowdsourcing in a collaborative, online environment."  PepeTheFrog thinks you might get a promotion or raise out of this.

    Awesome! :D

  5. Vern,

    I was quoting the FAR Councils. You'll have to take up the meaning of their terms with them.

    In my mind it's fairly clear that CAS applies at the contract level and not at the CLIN level. I believe the FAR Councils said as much in the quote I provided. I believe that's how DCAA interprets it also.

    Now if you're asking me whether I like or agree with those positions, then I will say I do not like them. In particular I think ID/IQ contracts should be handled differently for CAS purposes. But my opinion matters little. To quote Leo McGarry, "And I think there shouldn't be instant replay in football, but that' s not my call."

    ETA: If I accept the proposition that CAS applies at the CLIN level, then I think you have real problems complying with the CAS clause 52.230-6 and its definitions. One would have to calculate cost impacts at the CLIN level rather than the contract level, which would seem to contradict the clause requirements.

  6. Vern,

    The FAR Councils have stated in promulgating comments that CAS is applied to a contract not to CLINs. This creates challenges when, for example, trying to value an ID/IQ contract for CAS applicability purposes.

    In a related note, I was interested in CS' comment that 52.230-1 has not been put into solicitations because the CO's have been assuming the resulting contracts would be exempted.

    The prescription at 30.201-3 states "a) The contracting officer shall insert the provision at 52.230-1, Cost Accounting Standards Notices and Certification, in solicitations for proposed contracts subject to CAS as specified in 48 CFR 9903.201 (FAR Appendix)."

    So the insertion is mandatory, but it's mandatory only if the CO thinks the contract will be subject to CAS.

    This puts the CO in the perhaps difficult position of interpreting whether or not CAS is applicable. As we've seen demonstrated in this thread, it's a complicated question and one that is easy to get wrong. If a CO makes the wrong interpretation, somebody (IG?) might allege a public law has been violated. I don't know but it seems to me that if I were a CO I would put 52.230-1 in almost every solicitation, except for those that are obviously exempted (e.g., small business set-asides or awards under the SAT), and put the burden on the offeror to tell me whether the resulting contract award would be exempt from CAS through executing the certification. 

    Hope this helps.

     

  7. 2 hours ago, CS said:

    I support a program with contracts defined as firm-fixed price (FFP), labor hour (LH), time and material (TM), indefinite delivery indefinite quantity (IDIQ) with economic price adjustments from collective bargaining agreements (CBAs)/ wage determinations (WDs). 

    CAS is applied to individual contracts not a program. You say you have multiple contracts of various types, so obviously the exemption you cited cannot apply to all of the contracts.

    Further, you did not specify what your company certified on the 52.230-1 certification which was required in Section K of your proposal submission. Did you claim exemption and, if so, upon what basis?

  8. Seems to me that DoDOIG believes that a depot can be a subcontractor. See DODIG-2016-045, which says (in pertinent part)--

    There are two primary types of PPP arrangements: a direct sales agreement (DSA) and a workshare arrangement (WSA).

    1. Under a DSA, a depot maintenance activity and a contractor enter into a contractual relationship for depot maintenance repair services. The contractor pays the depot maintenance activity for the repair services that are provided to the contractor for DoD-related work based on the depot labor hourly rate. The contractor can earn a profit on the work performed by the depot maintenance activity.
    2. Under a WSA, the contractor and the depot maintenance activity work as partners sharing the DoD-related repair work. Funding is not exchanged between the partners and the contractor does not earn a profit on the work performed by the depot maintenance activity.
  9. Vern,

    I disagree with your disagreement with my advice. You seem to want Surapak to go away and think about things. That's great advice for personal development. In the long run it's the right advice for anybody, from contractor to contracting officer, who wants to advance in this bizarro world we call "government contracting." But right now, it's the wrong advice for Surapak.

    Surapak is apparently a contractor seeking to submit a proposal to a government customer. He needs help, as evidenced by his post here. He needs help now because the RFP clock is ticking. If my experience is anything to go on, his company can't afford for him to take time for personal development in order to come to a conclusion--one that may or may not be correct--about how to respond to the RFP requirements. His company needs solid answers and a path forward, and they need it now. If Surapak cannot provide solid answers and a path forward, then the company needs to obtain them from another source; typically that's a consultant. The price for guessing about what the RFP instructions require, or taking too long to reach a valid conclusion, may well be the loss of the opportunity.

    That's where I'm coming from, at any rate. By the way, I recently landed a new consulting client, who waited until his company's incurred cost audit was just about complete before engaging me to help him understand the differences between what the IRS allows for tax deduction purposes and what FAR Part 31 allows for cost-reimbursement purposes. Despite performing on a cost-reimbursement subcontract for several years, he had never been aware of the distinctions. I really wish he had engaged me about 3 years ago! I admit that situation may be coloring my response to Surapak.

  10. Joel, that's the point of my post. You may be right; you may be wrong. Nobody knows.

    This is a classic opportunity for Surapak and his company to hire somebody as a consultant, somebody who can review the solicitation and ask intelligent questions about how the company has calculated its markup for past projects, and then advise the company how to tailor its practices to comply with the current requirements (if tailoring is even necessary).

    Instead of spending a couple thousand bucks on somebody who can give concrete advice within the time constraints of the solicitation, Surapak has chosen to come here in hopes of getting the same advice for free. That's not a bad approach so long as there is engagement and clarifying questions are answered. The problem is that Surapak is not engaging and clarifying questions are not being answered, so the time between question and advice is stretching out ... at exactly the wrong time because the company needs advice now in order to prepare its cost proposal.

  11. I often have to draft policy position papers, procedures, and instructions. Essentially there are two ways to do it: (1) create a working group or committee and start outlining and writing in a giant, iterative, brainstorming session--and then submit the end product for review; or (2) prepare an initial draft on my own and then submit to a working group or committee to receive feedback, questions, suggested edits, etc--and then revise on my own and resubmit until the end product is mutually acceptable.

    The second method is always much faster and results in a better end product.

  12. I was having a fun conversation with a co-worker about the newly issued proposed DFARS revisions on technical data rights -- all 100+ pages of it. We were discussing the following definition:

    "Form, fit, and function data means technical data or computer software that describes the required overall physical, logical, configuration, mating, attachment, interface, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item or process to the extent necessary to permit identification of physically or functionally equivalent items or processes. The term does not include computer software source code, or detailed manufacturing or process data."

    Our first question was about the phrase "computer software" which appears multiple times in the proposed rule. Is there another type of software other than computer software?

    Our second question was about the application of the phrase "form, fit, and function" to software. The rule-makers obviously went to great lengths to define what they think they mean, but what do they mean? "FFaD data means technical data or ... software that describes the required overall physical ... characteristics ... of an item or process ..." What does that mean? Do we really have software that actually describes the required overall physical characteristics of an item or process? If so, why?

    Maybe it's our ignorance but we didn't get it.

  13. I know that every specialty has its own jargon. But sometimes it helps to be reminded how terms are commonly used outside of one's narrow specialty.

    "Information security, sometimes shortened to InfoSec, is the practice of defending information from unauthorized access, use, disclosure, disruption, modification, perusal, inspection, recording or destruction. It is a general term that can be used regardless of the form the data may take (e.g. electronic, physical)." - Wikipedia

    "Safeguard" has many definitions. 15 U.S.C. Section 6801, commonly called "The Safeguards Rule," requires financial institutions to develop a written information security plan that describes how the company is prepared for, and plans to continue to protect clients’ nonpublic personal information. -- Wikipedia

    Based on common language definitions, InfoSec is the general term and Safeguard is the more narrow term.

    My point is, when rule-makers draft rules that twist commonly accepted meanings, or create subtle distinctions through use of jargon that even well-read practitioners have trouble discerning, then nobody should be surprised when contractors cannot figure out what is required and are noncompliant. Yes, we have to turn square corners but if we can't figure out where the corners are, it's difficult to make the turn.

  14. Intentionally not commenting on Question1, just Question 2.

    I'm looking at this from the contractor's side. To me, there is no longer any uncompensated overtime because the hourly rates have been adjusted downward in the FPRA to account for the uncompensated overtime. Thus, there is no longer a competitive advantage accruing to the contractor that proposes uncompensated overtime. I wouldn't expect any further adjustments.

    Hope this helps.

     

  15. Desparado,

    Understood. You are correct. However, I would suggest that firms that don't already have qualified staff in-house may not be the right firms. I get this shuts out SBs but if you want quality audits you need quality people. The firm's credentials are almost irrelevant. This is based on my 10 years in the ranks of those firms.

  16. 1 hour ago, j_dude77 said:

    The technical folks biggest concern is that many firms are confusing contract audits with financial audits.

    I'm not claiming to know better than j_dude77's team, because I'm just a random voice on the internet. That being said, I would have to think that there would be easier ways of determining a qualified firm--and of determining whether that firm knew the difference between the two types of audits -- than evaluating audit reports.

    Also: resumes, resumes, resumes. Perhaps unlike building planes or tanks, it's the people, not the firm.

    H2H

  17. "It looks like the government is planning to restructure a priced option on a task order that may or may not have been competitively awarded. Is that the same as restructuring a contract level priced option? I don't know."

    I don't know either and I hope SubK comes back to give us the necessary information to help out.

  18. SubK

    You used the phrase "optional surge" which suggests the surge was a pre-priced option. Your post then suggests the CO did not exercise the option as priced. Do I have that right?

    If so, I recommend you research "exercise of options" rather than FFP LOE contract type. You may have some interesting results to consider.

    Hope this helps.

  19. Well, I'm confused.

    Seems to me like j_dude77 is not evaluating past performance at all. Seems to me what is being evaluated is evidence of past performance without any regard to relevance, complexity, etc. For example, I can create the world's greatest audit report but it's going to cost you quite a bit of money and take a really long time.

    Other concerns: The audit report is the result of the work but it is not evidence of the work. The work is evidenced by the working papers that support the conclusions reached, which are documented in the audit report. If you aren't evaluating the working papers then you're just evaluating a pretty piece of writing. In addition, what differentiates audit reports from each other? What constitutes a "great" audit report from a merely "adequate" audit report? Both excellent and poor audit reports exhibit the same characteristics: objective, scope of work, methodology, conclusion, signature. How do you tell the difference?

    I always thought past performance was a documented rating/discussion in a government system, and evaluators also looked at relevance of the past performance rating(s) to the work being proposed. I'm not seeing that here. [ETA: What Joel posted.]

    In short: I'm with the attorneys.

    If I were going to be evaluating audit firms I would care very much about the personnel staffing the work. I would want to see resumes and CPA designations and minimum levels of relevant experience and minimum levels of training. The better the people, the better the result, or so my experience informs me. I would try to get the best audit team for my budget, and let the audit report take care of itself.

    Hope this helps.

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