Navy_Contracting_4

It is clear from the FON that the government wanted a minimum staffing level of 107 FTEs, from day 1 on. If the order required a minimum staffing level of 107, and the contractor is providing only 105, then I would say yes, the contractor is in breach.

wifcon1, A distinction I overlooked in my haste to respond to Mr. Hoffman. How ironic that I responded too hastily while criticizing someone else for responding too hastily. Mea culpa. Thank you for the correction.

Joel, I think you may be judging too hastily. The 6% is not because he spoke with somebody at the FAR Council who said that there is a 6% preference for domestic producers vs. non-domestic producers, it's because FAR 25.105( (1) and (2) provide a 6% preference for a domestic small business vs. a domestic large business. Read Post #8 again, and FAR 25.105. You will likely still disagree with the approach, but at least do it acknowledging the actual rationale presented for using the 6% factor.

It really depends on the company's accounting practices. How was the projected 10% G&A rate calculated? Were projected subcontract costs included in the projected base? If so, then I would say you are right. They must be consistent in estimating and accumulating costs.

Is it possible that 15 USC 644(a) provides a statutory basis for this preference? "To effectuate the purposes of this chapter, small-business concerns within the meaning of this chapter shall receive any award or contract or any part thereof, and be awarded any contract for the sale of Government property, as to which it is determined by the Administration and the contracting procurement or disposal agency . . . to be in the interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government in each industry category are placed with small-business concerns."

Has the stop-work order been lifted? Has the contractor (re-)started the work? You may want to do nothing until the contractor requests an equitable adjustment to the schedule and price. What are you buying, and what kind of contractual arangement do you presently have?

DCMA recently revised their instruction on CPSRs and the new version is available at http://www.dcma.mil/policy/109/.

Sometimes, in "brand name or equal" procurements, when the government specifies the "salient characteristics" that an "equal" item must meet to be acceptable for award, it turns out that the brand name had a design feature that was not recognized as being among the important characteristics, and so was not listed. Then, an "equal" item gets accepted for award and doesn't work right, because it doesn't have this unspecified feature. The item may not work in practice, but if it met all the salient characteristics specified, can you fairly say it didn't meet contract requirements?

My comment, "Wouldn't it be false..." was related to the contractor's representation, and had nothing to do with the Government taking credit. Likewise with the novation comment. As a contractor, I assumed you were interested in contractor rights and obligations, and so I didn't focus on the government taking credit aspect.

That would depend on what the contract and/or order says and the reasons for the delay or overrun. For example, was the delay due to the government not providing documents to copy in time to complete the job on schedule? If so, then the period of performance should probably be extended. Did the order call for 50,000 units of copying at 10 cents per page and you wound up making 51,000 copies? You may be out of luck, but a flexibly priced contract such as this probably has some provision on how to deal with situations like this.

It seems to me that if a task order proposal request contains a representation similar to FAR 52.219-1, and the contractor has represented itself as large on the contract, but at the time of proposal submission, meets the definition of small business in the FAR, then the contractor should represent itself as small. Wouldn't it be false to do otherwise? Of course, if there was a novation involved, then a rerepresentation would have been required anyway, so there shouldn't be an issue, but if the contractor grew such that it had to re-represent after 5 years and then shrank, without any intervening event requiring rerepresentation, there could be a question whether the CO could report amounts awarded to that company as small business dollars, but I don't think there's anything in the rerepresentation coverage of the CFR that would affect the contractor's eligibility for award of task orders.

Surely the work that the CO said to finish was work that had been initiated on a task order, so why not identify the task order on your invoice? A "proper invoice" must include the order number, per FAR 32.905( (1)(iii), so can't you just re-submit the invoice with the order number included?

Shouldn't your first sentence be "FAR 19.301-2(d) prohibits agencies from taking small business credit on a contract once a contractor rerepresents itself as other than small"? [emphasis added]

I’ve never understood this requirement. A requirements contract is, by definition, awarded to just one contractor, per FAR 16.503(a). It has to be single-award, or you don’t have a requirements contract. What’s the point in getting a high-level official to sign that it’s OK to award to a single source, as opposed to multiple sources? It’s tantamount to requiring the head of the agency to approve all requirements contracts over $103 million. Seen in that vein, it may not be quite as onerous as it sounds. After all, how many requirements contracts over $103 million do you award? And you may not have to go all the way to your agency head. He/she may have delegated the authority to make these determinations. For example, in the Department of the Navy, the authority rests with the Senior Procurement Executive – still a pretty high level for what should be a straightforward determination, but at least it’s not as burdensome/time-consuming as having to go to the Secretary of the Navy. I would prefer that requirements contracts be excepted by law from this requirement (41 USC §4103/10 USC §2304a), but in the absence of a statutory change, couldn’t an exception be made in the FAR for requirements contracts, such that the determination could be made by the chief of the contracting office?

My comment had nothing to do with appropriate use of funds; it merely pointed out that 10 U.S.C. § 2688 provides a separate authority that may be exercised independently from the authority of 10 U.S.C. § 2410a. I don't think 10 U.S.C. § 2688 grants DOD the authority to ignore Congressionally-mandated appropriations limits.

Vern, You probably shouldn't be on Wifcon while you're in Hanoi anyway. Relax and enjoy.

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Aren't 10 U.S.C. § 2410a and 10 U.S.C. § 2688 separate and unique authorities? When you award a contract pursuant to the authority of the latter, you will not be exercising the authority of the former, so are not constrained by any limitations on contracts awarded under the former's authority.

Vern, Thanks for the reminder about “equitable adjustments.” I didn’t pick up on its mention in FAR 22.1015, because I didn’t think that a section of the FAR that wasn’t part of the contract would provide legal entitlement to anything. Instead, I focused on identifying a contractual term to provide entitlement to an adjustment. Thus my reference to 52.222-43. I guess an existing contractual term isn’t needed for this adjustment. Or does the “Changes” clause apply in this circumstance?

Does the contract explicitly allow for counting holiday and vacation hours toward the required level-of-effort? I have never seen such an arrangement, and can't imagine how one can consider time spent on vacation as effort expended in pursuit of an objective. As a side note, I wonder if there could be a problem with accounting for holidays and vacations as direct effort on this contract, but as indirect on others.

Vern, I found no mention of profit in FAR 22.1015. In my experience, price adjustments for new wage determinations under the Service Contract Act do not include any amounts for profit. In fact, FAR 52.222-43, Fair Labor Standards Act and Service Contract Act—Price Adjustment (Multiple Year and Option Contracts), says "Any adjustment will be limited to increases or decreases in wages and fringe benefits as described in paragraph (d) of this clause, and the accompanying increases or decreases in social security and unemployment taxes and workers’ compensation insurance, but shall not otherwise include any amount for general and administrative costs, overhead, or profit." Is there some case law that applies in this case that says otherwise?

If the holding company owns all the subsidiaries, it would appear they are all "affiliates" (see FAR 19.101) of each other, and thus the size status of each is determined by the total "number of employees" (again, see FAR 19.101) of the concern and its affiliates.

You may be confusing submission of the Plan with submission of reports, and you may be thinking that the timing of reporting set forth in FAR 19.704(a)(10) applies to commercial subcontracting plans. It does not. New Plans are required 30 working days before the end of your FY. A single SSR is required to be submitted within 30 days after the end of the Government’s FY. Nothing is required twice a year under commercial plans. See FAR 19.704(d)(2) and (4) and paragraph (g) of the clause at 52.219-9

As you point out, the mission you ordered is complete. You can't honestly extend the POP of that mission. Are you dealing with one-year funds that, once de-obligated, will be expired for obligation purposes?

Are there any flexible aspects to the pricing of this item, for example, based on usage? If not, and they had a signed FFP contract, under which they delivered the full amount required, then it seems they are entitled to full payment, regardless of a mod purportedly deobligating funds.