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  1. br549, In this scenario the indirect caps are being applied to labor escalation -- i.e., limiting the amount of raises the contractor can give its employees with respect to this contract. If the contractor gives its employees raises that result in labor costs that are in excess of the negotiated labor escalation factor(s), then the amount over the cap would result in unallowable direct labor costs plus unallowable indirect costs allocated to that direct labor.
  2. Vern, we have a different impression/interpretation of the situation. I read the original post as saying that price negotiations had concluded and then the government slipped in the bit about escalation caps as the contract language was being finalized. In my mind, if the contractor had known that the government had wanted to impose caps on labor escalation (not caps on indirect cost rates) then the contractor would have wanted more fee to compenate for the increased risks. The rest of your points strike me as perhaps my points struck you. Of course the government can tell the contractor how to spend the money. That wasn't my point at all. My point is that the government does so through regulations and contract language and through a COTR and through DCAA audits. (And we still get many delay/disruption claims...) The caps on labor escalation veers dangerously close to something much more, something that smells like interference in the contractor's business. Given that they are unnecessary (for the foregoing reasons as well as others made in my prior posts) they should be avoided if at all possible.
  3. Scenario -- Contractor submits a cost proposal for a CPFF contract. Presumably, the cost proposal was based on forecasted costs, including future labor costs based on known or forecasted wage increases. Government objects to labor escalation values used by contractor and associated direct labor cost estimate. Contractor agrees to revise cost proposal commensurate with Government's desired labor escalation rate. Accordingly, a new estimated cost and associated fixed fee is agreed upon. Contractor does this because, regardless of what labor escalation rate is agreed-upon, at the end of the day it will be reimbursed for its allowable cost incurred. Profit erosion risk is manageable. After negotiations are concluded, Government attempts to impose "caps" on the amount of actual labor escalation--effectively limiting the amount of allowable pay raises the contractor can give to its employees for the instant contract. Contractor objects, because if it gives employees the raises it knows (e.g., collective bargaining agreement) or forecasts (based on plans & budgets), it will incur an unallowable cost with respect to this contract. If it limits pay raises to the Government's desired escalation factor, it affects staff morale and perhaps breaches collective bargaining agreements. Moreover, imposing contract-specific escalation rates signals to the contractor and its employees that this contract is to be treated differently from the contractor's other contracts (assuming it has other contracts). Remember that most (but not all) pay raises are applied to the employee population as a whole, or to salary bands, or to functions -- and not to individuals. Contractors do not, as a rule, identify a small group of employees working on one contract and say, "you guys get 100% raises while everybody else gets 3% raises." 1. Contractors run a competitive business, or try to. Please give them the benefit of the doubt. More to the point, the Government shouldn't assume the right to tell the contractor how to run its business, including what raises to give its employees. If the government wants to in-source the work, do it. Otherwise get out of the contractor's knickers and let it do its job as it proposed. 2. The Government doesn't need to impose contract-specific "caps" in order to control the salary/wage increases a contractor provides its employees. For example, DCAA has an audit program that addresses contractor compensation ceilings. FAR 31.205-6 addresses the allowability of compensation, and contractors with CPFF contracts have to comply. The FAR definition of reasonableness would cover the scenario above, where one set of employees gets a huge raise while other similar employees do not -- and the excessive raises could well be unreasonable and thus unallowable as a contract cost. Cq1 hints at facts and circumstances that have not been shared. Fine, if there is a bona fide reason that the government feels the need to control the contractor's contract-specific labor costs, then do it. In that case, the above comments should be read as a diatribe aimed at the general 1102 population and not at anyone in particular. Vern, I appreciate your comments made in addition to my own, augumenting but not contradicting my statements (as best I can tell).
  4. Cg1, I do not agree with your assessment, based on the facts as you have presented them. The point of negotiating the estimated cost and associated fixed fee is to establish a target for various management purposes. The government's primary controls relative to price are on the funding, not the costs incurred. The reason (presumably) that the government chose a CPFF contract type is because the scope was unknown and therefore it was not prudent to hold the contractor to a strict price. If you now want to hold the contractor to a strict price, consider changing the contract type and making the contract a firm fixed-price type -- and be prepared to reopen negotiations. Otherwise, let the contract pricing and billing work as the FAR intends them to. I really don't know you and I certainly don't know all the facts and circumstances. But based on your posts I have to say that the interpretation of bad faith doesn't seem to be on the contractor's side in this discussion. You want CPFF, then execute it. H2H
  5. I concur with Don's point(s). In a cost-type contract, the government agrees to reimburse the contractor for actual allowable costs incurred (subject to funding limitations). The estimated costs are simply that -- estimated. Not fixed. Apples and oranges. When the government imposes a cost ceiling or cap, it is essentially converting that portion of the contract from cost-type to fixed-price. The contractor accepts increased risk. If you want the contractor to accept that risk, you need to offer consideration--commonly increased fee. It's not really "fair" to expect the contractor to accept the increased risk while simultaneously reducing the estimated cost and fee, right? Hope this helps.
  6. NPRM issued in August by Dept. of Labor. See http://www.regulations.gov/search/Regs/hom...9000064809fff38 Hope this helps.
  7. It's not clear to me whether this new process replaces the current internal DCMA review process (i.e., one or two reviews of a CO's decision when the decision is to disagree with DCAA), or if the new process is an additional one. Looking at the process on its own, without context, it doesn't seem as onerous as some of the alternatives I've heard and read about. For example, one alternate approach was to have DCMA accept all DCAA recommendations, period. Another thought was to merge the two agencies and have the CO's report to the auditors. This new approach seems far better than it could have been.
  8. Whynot, that speaks to the GAAP accounting treatment but not to the cost allowability. Also, it's interesting that LM would assert that the trademark has an "indefinite useful life" because I would have thought (perhaps naively) that one needed to establish a finite useful life in order to amortize a cost. In order to create an amortization expense, one divides the asset value by the number of periods of useful life to calculate a fixed amount per period. I would have thought that having an indefinite life in the denominator would be like dividing by zero. I guess that's why LM doesn't hire me to do their accounting!
  9. Thanks Vern. I only wish our DCAA auditors had your discernment.
  10. Vern, I find it interesting that you spend a lot of time quoting 31.205-1 but omit any discussion of the definition of "public relations" which I would assert covers a trademark which is used to protect the branding of an entity's products. Also "prosecuting a trademarK" is pretty self-evident, is it not? It is the effort of applying for and receiving a recognized and officially registered trademark. Prosecute as in "make an effort to attain". Of course you and the others are correct that there is nothing directly on point, which is why one needs to analogize to another principle. I chose 31.205-1 but others have made different analogies. Who's to say, outside of a court of law, who's made the best analogy? To loul, I'm confused by the notion that such costs would be allowable but not allocable to a specific cost objective. Are you saying, then, that they are allowable G&A expenses? Are you familiar with the various cases pertaining to allocability, including Boeing North American, FMC, and (more recently) Teknowledge and BearingPoint? Look, I'm not necessarily against that position. If you paid me I would make that argument with a straight face and mean it sincerely. I just think an auditor or IG could make a strong case that such costs are not in fact "necessary" as much as they are beneficial to the contractor. When Lockheed Martin registers "We never forget who we're working for" how does the Government benefit? Why does LM feel having such a catchphrase is desirable? Would the company get as many contracts if it didn't have such a catchphrase? Again, one could make the argument that such costs are those that would be incurred by a prudent businessperson in the conduct of a competitive business; however, I would be uncomfortable using that as a counter argument should DCAA or whomever assert that such costs were unreasonable, unallowable, and/or unallocable because there is no beneficial nexus between the cost and a Government contract. The recent court decisions in this area have been going against the contractors more often than not.... Maybe it's just me. H2H
  11. Whynot, why would you group trademarks with patents? They are not at all the same thing. Patents, copyrights, and data rights concern limits on the use of intellectual property. A trademark is a sign or indicator used by an entity to identify certain products/services to consumers. The cost of trademarks is not specifically covered by the FAR Part 31 cost principles. That said, however, I would think that the cost of trademarks would be covered by 31.205-1. "(a) ?Public relations? means all functions and activities dedicated to? (1) Maintaining, protecting, and enhancing the image of a concern or its products; .... "(f) Unallowable public relations and advertising costs include the following: (1) All public relations and advertising costs, other than those specified in paragraphs (d) and (e) of this subsection, whose primary purpose is to promote the sale of products or services by stimulating interest in a product or product line (except for those costs made allowable under 31.205-38((5)), or by disseminating messages calling favorable attention to the contractor for purposes of enhancing the company image to sell the company?s products or services." Given the foregoing, I would classify such costs as unallowable. Hope this helps.
  12. Acq_4_life, If I understand your situation correctly, your agency has awarded a cost-type contract to a contractor who has been determined to have an adequate accounting system. You say the contractor is performing a "commercial service" but you don't say whether the contract was awarded pursuant to Part 12 or if it contains any commercial item clauses. Putting this all together, you may have an illegal contract (cost-type commercial item procurement). Or not. But either it needs to be a full-on commercial item contract (convert to FFP or T&M, and lose any clauses inconsistent with commercial item acquisitions), OR it needs to be full-on cost-type (specify some invoicing requirements and lose any clauses that smack of commercial item acquisitions). One way or the other; not both. To help me decide which way to go, I would look at the original solicitation, contractor's proposal and bid evaluation. In the meantime, I would pay the contractor's invoice as submitted and ask your friendly audit agency to do a post-payment voucher review. (I think they might call it a booked-to-billed reconciliation.) I'm sure there's more to be said -- and others to say it. Hope this helps.
  13. Can I just add in here that we seem to have some information missing? What we do know is that the contractor is billing the customer is exactly the same way its costs were negotiated and contracted-for, no more and no less. Now somebody is saying, after award, wait a minute, maybe we need some more detail. Do we know whether the contractor's system has any more detail? Do we know whether the system was found to be adequate for cost-type contracting? Do we know if the contractor has a Disclosure Statement and how it accounts for its costs? Nope. Seems to me we need the answers to those questions before we make any suggestions here. Sombody (me) might say, it's unfair to tell the contractor <i>after submission of the first invoice</i> the customer needs more detail. Somebody (me) might say, you didn't need that detail to find the offer fair & reasonable, and you didn't need that detail when you negotiated the price -- so what has changed here? The only thing that's changed is that you want to change the ground rules after the game has started, which will delay the contractor's payment and might cost it more in admin. costs. But I'm not saying that -- yet -- because I believe there's too much information missing. Hope this helps. NOTE: I see Vern just posted while I was reviewing this. I concur with him but will post this anyway. H2H
  14. Hi marcfgov, The answer to your question is straightforward. It depends. Generally, you have a G&A rate where you have a business unit or segment of the organization. If you want multiple G&A rates, I would expect to see multiple segments (see CAS 403 and 410). You can have separate and unequal G&A rates for CONUS and OCONUS if you have a CONUS business unit/segment and an OCONUS business unit/segment, both reporting to a home office. (That will be three Disclosure Statements, for those who are counting-- though the Home Office won't likely have more than Parts I, VII and VIII. Hope this helps.
  15. At the risk of coming in late to the party, I would say, contractor100, that the government likely did not get what it needed. You say "entirely made whole by the contractor's compensation" but that is not the entirety of the situation. Originally the government needed an item or service, and now receipt of that item or service will be delayed. Sure, the taxpayers aren't out of pocket any extra cash, but what about the fulfillment of the need? I concur that the final performance evaluation should take into account that the contractor didn't provide what had been contracted for -- perhaps for good and sufficient and efficient causes. But still. Just tryin' to help ....
  16. Let me try this again. Yes, learningtheropes there are several "wrong ways" to bill the govt for COLA expenses. Here are a few of them, focused on the contractor's point of view: 1. Propose the costs one way and bill them in a different way. This is especially good in a competition where price is a significant evaluation factor, when it can be shown that your original proposed treatment resulted in a lower proposed price, but your actual billing treatment results in higher prices. If you are a CAS-covered contractor, you get bonus points for the CAS 401 noncompliance. 2. Account for costs as direct labor, and bill them as ODC. This is a great method if you are close to losing money on your hourly T&M billing rates and can shift the otherwise margin-eroding COLA costs to the Material part of the T&M billing. Highly recommended, especially if your company already has a Deferred Prosecution agreement with the DOJ and is itching to spend money on external attorneys. 3. Account for the costs as labor overhead, and bill them as ODC. This is a variant on #2, above. Has the added feature of potential allocability issues (see, e.g., CAS 418). 4. Account for the costs as ODC, and bill them as labor. This one is tricky and counter-intuitive. Assume that as an ODC, indirect burdens are minimal (maybe only G&A, perhaps a material handling burden). But as labor the costs will be absorbing fringe and labor overhead, drawing some costs away from your other fixed-price work, thus resulting in higher margins for other contracts. If the contract mix is right, you can make a lot of money using this method. Make sure to factor litigation defense costs into the business case. 5. Account for the costs as an unburdened uplift, and add indirect cost burden(s) to your billed amounts. This method involves adding a burden to the contract billings that you don't actually incur. Given the DCAA's current propensity for voucher reviews, should be considered high-risk. But hey, what the heck. No risk, no reward, right? 6. Have a CASB Disclosure Statement that tells the Government how you will be treating the costs, then treat then differently. CAS noncompliances are always good for a laugh. 7. Treat the costs one way for all your contacts but this one, which will be treated differently. Your trick will be to try to explain to the various investigators why the facts and circumstances of this particular contract merited the "special treatment." (Remember that phrase.) Again, bonus points if you are a CAS-covered contractor. 8. Have a policy that clearly tells people how the costs will be treated, but treat them differently for this contract. This of course is an internal control issue. Remember, April Stephenson testified that 69& of all LOGCAP contractors' business systems were inadequate! (Or did she say that 69% of all DCAA audit reports on LOGCAP contractors' systems were inadequate? I forget.) Anyway, that will be a good excuse for your attorneys to use in court. 9. Have the treatment expressly covered by a contract clause, but ignore it. According to the latest SIGIR report, nobody is looking hard at contractors' invoices anyway. You could get away with this one for maybe a year or two before anybody noticed. Then quickly process a credit voucher and enjoy the interest you earned on your overpayment. 10. Have a MOU or Advance Agreement with your CO regarding how the costs will be billed, but don't follow it. Your CO will likely rotate off the contract in six months anyway, to be replaced by somebody who doesn't know about the agreement. Eventually somebody will notice, but you might be retired by then. I'm sure there are plenty of other ways to bill COLA costs incorrectly. These are just the ones I came up with on the fly. I tried to provide relative comparisons to help you decide which one to use. I hope this helps. May I suggest, as Vern and others have, that you come back to this thread with some more details, more coherently articulated?
  17. Hi Navy, I may have jumped to a conclusion as to what COLA means, but only in an effort to help out. Telling the poster to be more clear is certainly appropriate, but then there is no learning to be had by others. Anyway that's what was on my mind when I posted as I did. Carl, we have to assume the contact is silent regarding how to handle COLA increases (whatever they may be), else why ask the question. My post assumed (perhaps incorrectly) that we had to address an ambiguous situation, and was suggesting what would be helpful, in my view. I am NOT saying what you suggested I was saying. What I was saying is this: In the absence of clear agreement in the contract as to the treatment of any particular element of cost for billing purposes, a contracting officer likely will be looking to have some assurance that the cost being billed is allowable, reasonable, and allocable to the contract. There are several ways to accomplish that task. Among those are: S/he might want to look at the original proposal to see how the contractor intended that cost element to be treated. A contracting officer might wish to have the contractor produce its Disclosure Statement to document its disclosure to the Goverment (prior to award) how the cost element would be treated. If the contractor doesn't have a Disclosure Statement, one might look at existing policies and procedures to see if the current treatment is a deviation from policy. One might look at how the contractor has treated the cost element in its other contracts, to ensure consistency. See FAR 31.201-3. 31.201-3 Determining reasonableness. ( What is reasonable depends upon a variety of considerations and circumstances, including? (1) Whether it is the type of cost generally recognized as ordinary and necessary for the conduct of the contractor?s business or the contract performance; (2) Generally accepted sound business practices, arm?s-length bargaining, and Federal and State laws and regulations; (3) The contractor?s responsibilities to the Government, other customers, the owners of the business, employees, and the public at large; and (4) Any significant deviations from the contractor?s established practices.
  18. First, let's make sure we're talking about the same thing. COLA is an adjustment to an employee's salary or hourly wage rate based on moving from one duty station to another, where the new duty station has a higher cost of living than the old one. It is not escalation on materials or subcontractor costs, and it is not a DOL wage determination increase. Next, I'm going to go ahead and non-concur with Carl's advice. In my view, the most important issue to pin-down is what does the contractor's Disclosure Statement and/or policies and procedures have to say about how it treats COLA costs? To that I would also add: how were the costs proposed? And: what has the contractor's past practice been on its other contracts? Contract type is less important to my analysis, because I believe that the proper billing treatment will follow the proper cost accounting treatment. I guarantee that COLA costs are treated differently by different contractors. Sometimes you'll find such costs in labor, because they are generally upward adjustments to direct labor costs. You might also see them in fringe benefit costs, to distinguish them from "normal" salary costs. Frequently they are found in ODC because that's the contractor's practice. There is nothing inherently wrong with any of these practices, so long as they are followed consistently by the contractor. Hope this helps.
  19. Hi Buyerboy, I'm assuming you're in industry. In the legacy system, when you permitted the supplier to deliver late (i.e., when the promise date was later than the due date), did you not understand that, in effect, you had agreed to modify the contract? My point is that the new system seems to be forcing you to recognize a contract mod, when the legacy system permitted "unwritten mods" for a relaxed delivery date. Nothing wrong with that that I can see. Moreover, I agree that the supplier should be evaluated against the original due date, even if the delivery date is moved to the right. Hope this helps.
  20. Guys, I think you need to read Krazy KO's posts again. This is not a matter of earned or unearned award fee. As I read it, the problem is that the Government never evaluated the contractor's performance, and never determined how much award fee had been "earned"--though apparently there is some base fee that has been paid out. Now, nearing the end of performance, Krazy KO wants to know what to do. The contractor's has suggested that it is entitled to an award fee equal to 6% of labor costs. Legal has opined that the contract should be modified from CPAF to CPFF, and Krazy KO tend to agree, since there is very little effort left to incentivize through use of an award fee. Yet another approach would be to convert the entire mess into a FFP based on actuals incurred by the contractor to date plus an estimate to complete, with profit applied to cover the contractor's performance to date plus risk on the go-forward costs. Anyway, this is not about recording an oblidation or ADA compliance, in my view. It's more about how Krazy KO should clean up the mess. Hope this helps.
  21. Joel, you're making an argument based at least one dubious assumption. The contractor's 10% G&A is just as likely (in fact more likely) to be based on a forecasted volume of work for the current year. When the contractor put together its forecasted G&A rate last year, it assumed that this year it would have to excavate all that rock you and it estimated would be encountered. But the work never happened. Had the contractor known that fact, it would have bid a 15% G&A rate because it would have roughly the same G&A expense pool allocated over a smaller base -- since the numerator was essentially unchanged while the denominator shrank, that means (mathematically) that the rate goes up. You need to make the contractor whole, especially because you have a contract clause that envisions this circumstance and it directs the parties to reprice the work. The reality, though is that your hypothetical is not really a good analogy. In this case, the State Department ordered dramatically less (97% less) of the estimated quantities. That amount of descope is a heckuva lot closer to a T4C than it is to a variation in quantity. It's so much less that (in my mind) it calls into question the good faith of the Government's initial estimate on which the contractor based its pricing. Had the Government issued a T4C -- or a partial T4C -- there would be no question in your mind that the contractor would be made whole, right? The contractor would be reimbursed for all actual allowable costs allocated to the contract, plus TSP prep costs. If the contractor's actual G&A rate was higher than initially forecasted, it would be permitted to recover that higher G&A rate against the instant contract. Assuming a partial T4C, if the remaining non-terminated work cost more because of lost economies of scale or disruption or whatever, you would allow that higher cost, right? Even if the higher cost was partially comprised of higher indirect costs such as G&A. So what's the difference here? Regards. H2H
  22. Joel, perhaps I'm a bit oversensitive since it's a rare day when I get to discuss cost accounting in this Forum. Anyway, the issue is simply that when the contractor does update its G&A rates -- which will be used to bid future work or to bill current work -- it cannot always recover the increased G&A that is or will be applied to its other contracts stemming from the instant contract not absorbing its expected share as the parties intended. Some of those other contracts will be FP, others will be T&M, still others will have funding ceilings. So the contractor needs to be made whole for its "losses" from too much G&A going to other contracts. That's the whole concept of unabsorbed overhead in a nutshell: you can adjust the pricing of all other affected contracts to make the contractor whole for the unplanned increased indirect costs they all absorb, or you can adjust the price of the instant contract that failed (for whatever reason) to absorb its planned share. The Courts and the contracting parties have agreed to adjust only the price of the instant contract. Sorry if I jumped on my soapbox too quickly. As I said, I tend to get excited when these concepts are discussed. (I know, I know....) H2H
  23. I'm enjoying the discussion and learning new things, which is always good. I'm glad I posted the case here. But I need to jump in here because Joel is making several misstatements that need to be cleared up. Joel, I'm not necessarily disagreeing with your fundamental point, but you are confused in several respects. 1. For CAS-covered contractors (including construction and A/E contractors), G&A is allocated pursuant to CAS 410. That Standard mandates use of one of three allocation bases, none of which are cost of sales or percentage of sales (revenue). Use of those bases would be a CAS noncompliance. 2. Home office costs, whether called home office overhead or G&A or whathaveyou, are allocated pursuant to several CAS (e.g., 403, 410, 418) via what is usually a set of relatively complex allocations. Joel is wrong, wrong, wrong when he says that recovery of such costs is "adjusted to reflect ... past performance or projected future performance." Joel seems to be conflating forward pricing or bid rates with actual cost rates. Actual G&A is allocated based on (a) actual G&A expenses as incurred, and ( actual G&A allocation base expenses as incurred. Joel has it completely wrong when he states "The Contractor will eventually 'absorb' G&A costs, because they will often adjust future rates on past period cost of sales and/or adjust for future sales projections." Vern has it right: failure to order hours means less G&A allocation base to absorb the G&A/HOOH expenses, increasing the actual cost rate. In a cost-plus world, the contractor will seek to pass the additional G&A onto the customer, but in a fixed unit or FFP world, there is no mechanism to do so unless the VEQ clause is used. 3. G&A contains as much "fixed costs" as any indirect cost pool -- see CAS 403's definition of "residual expenses" as well as FAR 31.201-4©. 4. Again, Joel seems to create distinctions between cost pools that don't necessarily exist (e.g., G&A versus management, supervision, etc.). G&A expense benefits the business (or business segment) as a whole. Overhead benefits a portion of the business, but not its entirety. (Again, see 31.201-4 as well as the definition of G&A in CAS 410.) Basically, some costs are direct contract costs and some costs are indirect contract costs. Management and supervision can be direct or indirect, depending on the contractor's disclosed or established practices. Management and supervision can be in G&A pool(s) or in overhead pool(s) or even direct charged in certain circumstances. So Joel, though I'm not sure you were directing your question to me, I'll answer it anyway. No, you were not making (good) sense in your distinctions. I hope this helps.
  24. Your question confuses me. The question of separate rates for the prime and subcontractor seems to be answered by 52.232-7 if the prime contract is a non-commercial item acquisition. If the prime contract is a commercial item acquisition then 52.212-4 would be included and that would seem to permit a non-commercial subcontractor to be reimbursed at the prime's commercial hourly rates (see Alternate 1 language). What am I missing?
  25. I do not believe that the definition of "commercial item" found in 2.101 makes a distinction based on acquisition method. If I'm wrong, I'm sure I'll be corrected forthwith.
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