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Navy_Contracting_4

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Posts posted by Navy_Contracting_4

  1. FAR requires that COs make a lot of determinations, but FAR states only seven requirements for a determination and findings, three of them related to the use of T&M contracts:

    6.202(1) - establishing and maintaining alternative sources

    8.404(h)(3)(ii)(A) - use of T&M

    12.207(1)(ii)(A) - use of T&M

    16.601(d)(1) - use of T&M

    17.502-2[c] - Economy Act

    25.202 - Buy American, construction materials

    25.1001 - waiver of right to examination of records

    (I don't think I missed any.) None of those are in connection with the use or exercise of options.

    There may be additional requirements for D&Fs in agency FAR supplements.

    I don't understand why there should be any regret about FAR 1.702. All it says is that when a CO must prepare a D&F and an option is anticipated, the D&F must provide information about the option.

    Vern,

    Did you overlook FAR 16.401(d)'s requirement for a D&F for incentive and award-fee conracts, or did you intentionally exclude it for some reason?

  2. Were you required by the terms of your contract to provide a proposal? If not, then the costs must be recovered through the appropriate indirect expense pool (see FAR 31.205-18.) If the terms of your contract explicitly required you to submit a proposal, then you may have a case for an equitable adjustment, depending on what the precise terms of your contract say about the matter.

  3. H2H,

    Yes, they do. And they also operate similarly with respect to exceeding the funding limit, whether it's incrementally funded or fully funded. Compare the excerpt from FAR 52.232-22, Limitation of Funds, to the one above from FAR 52.232-20.

    (i) When and to the extent that the amount allotted by the Government to the contract is increased, any costs the Contractor incurs before the increase that are in excess of...[t]he amount previously allotted by the Government...shall be allowable to the same extent as if incurred afterward, unless the Contracting Officer issues a termination or other notice and directs that the increase is solely to cover termination or other specified expenses.

  4. jpayne,

    Are you asking about the situation alluded to in paragraph (f) of FAR 52.232-20,Limitation of Cost?

    (f) If the estimated cost specified in the Schedule is increased, any costs the Contractor incurs before the increase that are in excess of the previously estimated cost shall be allowable to the same extent as if incurred afterward, unless the Contracting Officer issues a termination or other notice directing that the increase is solely to cover termination or other specified expenses.
  5. Perhaps they're interpreting FAR 5.203( b ) --

    ( b )The contracting officer must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond to each proposed contract action, (including actions where the notice of proposed contract action and solicitation information is accessible through the GPE), in an amount estimated to be greater than $25,000, but not greater than the simplified acquisition threshold; or each contract action for the acquisition of commercial items in an amount estimated to be greater than $25,000. The contracting officer should consider the circumstances of the individual acquisition, such as the complexity, commerciality, availability, and urgency, when establishing the solicitation response time.

    as providing flexibility for acquisitions between $25,000 and the SAT.

  6. H. R. 4435, the Buck McKeon National Defense Authorization Act for Fiscal Year 2015, passed the House 5/22/2014, and included the following:

    "SEC. 806. PERMANENT AUTHORITY FOR USE OF SIMPLIFIED ACQUISITION PROCEDURES FOR CERTAIN COMMERCIAL ITEMS.

    Section 4202 of the Clinger-Cohen Act of 1996 (division D of Public Law 104-106; 10 U.S.C. 2304 note) is amended by striking subsection (e)."

    So now it's up to the Senate to decide whether to go along with making it permanent or not, but at least it's on the agenda, and at a minimum should be extended, if not made permanent.

  7. I agree with Navy with respect to the first sentence ("It may depend on the reason for the overpayment.") I disagree that FAR 32.6 is applicable to an overpayment unrelated to a CAS matter.

    Generaly I would not expect a contractor to include interest on an overpayment received during the normal course of business.

    Hope this helps.

    H2H,

    I don't see where the applicability of FAR 32.6, Contract Debts, is limited to debts related to CAS matters. Can you point me to that restriction?

    Regarding your last point, I agree, (unless the repayment is not made before, or within 30 days after, issuance of a demand letter), and that is consistent with FAR 32.604(b )(4)(ii).

  8. The "original contractor" is still the contractor, so that's what goes in Block 8, NAME AND ADDRESS OF CONTRACTOR. An assignee does not become a party to the contract in any way, and the assignment has no bearing on the contractor's obligation to perform/deliver.

    Could you, by any chance, be thinking about incorporation of a novation agreement?

  9. No company, large or small, may be required to provide certified cost or pricing data for commercial items (see FAR 15.403-1(B)(3).) However, see also, FAR 15.403-1(c )(3), and particularly15.403-1(c )(3)(ii)(C ) -- "...[if needed to determine price reasonableness,]...relevant information regarding the basis for price or cost, including information on labor costs, material costs and overhead rates may be requested.

  10. general,

    I understood the situation to be that the subcontractor was not a "once-upon-a-time" subcontractor, but a subcontractor that was being proposed on the specific solicitation under which Offeror A had submitted a proposal.

    And just to be clear, I did not recommend entering into discussions. Award without discussions is addressed in FAR 15.306., as well as with discussions. I can't tell from the minimal info provided by govt2310 whether discussions are necessary or not.

  11. FAR 15.605©(1) says supporting information should include "Proposed price or total estimated cost for the effort in sufficient detail for meaningful evaluation...". I didn't see anything in the FAR guidance on unsolicited proposals that requires submittal of certified cost or pricing data.

    I believe the Government would review the submittal, determine if they want to proceed with award of an unsolicited proposal and, if they desire to proceed, they would then ask for certified cost or pricing data in support of negotiations (assuming no exception or waiver is applicable).

    Is the the way it works?

    That's definitely what I would advise. There's no sense in putting folks through the Certified Cost or Pricing Data drill if we're not going to proceed with a contract.

  12. Navy, I'm afraid I will have to be the first to contradict you (somewhat) that someone who is paid $144,000 for 600 hours is not actually getting paid a "rate" which exceeds $200k because, for purposes of this clause, "rate" seems to be defined as the gross direct salary costs (excluding fringe, OH, G&A) incurred annually. At least that's what I'm going with today (and I think mrsbadexample is also on board). I think the disparity in the interpretation of this clause is proof it's poorly written and leads to unnecessary confusion.

    I don't believe "rate" is defined by the clause in any way, so per FAR 1.108(a), “rate” retains its common dictionary meaning. In the context as used in this clause, Random House Dictionary defines "rate" as "a certain quantity or amount of one thing considered in relation to a unit of another thing and used as a standard or measure: at the rate of 60 miles an hour." Another example would be dollars in relation to time.

    In your example, the employee is being paid at the rate of $500,000 per year. But I expect he doesn't get paid just once a year; he probably gets paid at a rate of $41,866 a month, or perhaps he gets paid at the rate of $19,230 every two weeks, or even, possibly, at the rate of $240 per hour. And doesn't $240 an hour equate to $144,000 for 600 hours? My point is, those are all the same "rate."

    Thus, no matter what anyone else says, or how they interpret some memo or FAQ, to my way of thinking, allowing that $144,000 for that employee’s 600 of work on that contract is a violation of both the letter and the spirit of the law, and of the clause.

  13. I have no experience with the clause, but I do object to the above interpretations, because they ignore the word "rate" in the statutory language. Rate requires two parameters, such as in a rate of speed (miles per hour) or rate of pay (dollars per year (or per month, or per hour)). I think I can say, without fear of contradiction, that someone who gets paid at the "rate" of $144,000 per 600 hours is clearly getting paid at a "rate" that exceeds $200,000 per year. Oh, I almost forgot; this is WIFCON, so I probably will be contradicted by someone - but I just don't fear it.

  14. The OFPP Pamphlet that is no longer in effect explains "Surveillance Plan" thusly:

    Surveillance Plan. An organized written document used for quality assurance surveillance. The document contains sampling guides, checklists, and decision tables.

    Certainly, if the QASP is the only place that specifies sampling guides, checklists, and decision tables, then it needs to be provided with the solicitation and made a part of the contract. In my experience, test requirements, including sampling guides, checklists, and decision tables, have been a part of the specification or SOW, not just in a QASP.

  15. I have to agree with Joel's original answer on this. I don't consider a QASP to be a "technical requirement[] . . . relating to the quality of the product or service" nor is it one of the "contract clauses prescribing inspection, and other quality controls incumbent on the contractor." I consider it a plan for how the government is going to monitor the contractor's compliance with those technical requirements and contract clauses, so while some, or even all of the requirements and clauses may be mentioned in the QASP, it isn't the QASP that imposes the requirements. Thus, I also agree that FAR 46.201 is not saying the QASP shall be included in the solicitation/contract.

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