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elgueromeromero

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About elgueromeromero

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  1. UPDATE: GSA just issued an amendment to clarify that the Mentor Protege agreement has to be approved prior to submission of the offer, not the Joint Venture agreement. Disregard my original post--I was wrong. The regulation states that the Mentor-Protege Agreement has to be approved prior to award. I thought I had read that the Mentor-Protege Joint Venture agreement had to be approved prior to award. Huge oversight on my part.
  2. Wow--interesting. Thanks for this reference. I have read this section before but didn't catch what I think you're pointing out, which is this part, correct?: If the procurement is to be awarded through the 8(a) BD program, SBA must approve the joint venture pursuant to § 124.513. This does have an impact on my analysis in that it seems to create some ambiguity and confusion by contradicting 124.520(d)(1)(i)). 13 CFR 121.103(h)(3)(iii) first references 124.520 but then jumps to § 124.513 when discussing approval of the joint venture, when it seems they should have instead referenced 124.520. I still think that there's a distinction in the regulations between the requirements for 8(a) Joint Ventures and 8(a) Mentor Protege Joint Ventures; however, this apparent oversight by SBA that you've pointed out does confuse the issue and may give interested parties a better chance of succeeding in a solicitation protest. And I can almost guarantee that this RFP will get protested for this very issue.
  3. The following is from the GSA OASIS 8(a) Sub-Pool On-Ramp RFP: For Mentor-Protege JVs, the SBA must approve the Mentor-Protege Agreement before the firm may submit an offer (reference 13 CFR 125.9(d)(1)(i), 13 CFR § 124.520(d)(1)(i)). For 8(a) Joint Ventures where all members are small under the applicable size standard per 13 CFR 124.513(e), the SBA must approve the JVA prior to award, not prior to submission of an offer. This requirement is causing a lot of heartache for 8(a) Mentor-Protege JVs. A lot of folks (including consultants and contracts attorneys) are saying that GSA is violating SBA rules in that they can't require approval of the 8(a) Mentor-Protege JV prior to submission of an offer because the regulations state that approval must happen prior to award. Of the 369 questions and answers provided in Amendment 04 Q&A, probably 20 of them were directly related to the above requirement. Admittedly, I also initially thought that GSA was going against SBA regulations with this requirement. Then I dug more into the regulations and now I actually think that GSA is correct. Here's why: GSA is essentially stating that 13 CFR § 124.513, which allows SBA approval of the 8(a) agreement prior to award doesn’t apply to 8(a) JVs formed under SBA’s mentor-protégé program, but rather 13 CFR § 124.520 and 125.9, which require approval of the JV agreement prior to submission of an offer, applies to 8(a) and SB Mentor-Protégé JVs. 13 CFR § 124.513 is almost entirely silent on Mentor-Protégés, whereas 13 CFR § 124.520 and 125.9 are specific to the Mentor-Protégé program. So the regulations contain two distinct requirements with respect to SBA's approval of joint venture agreements: If you're an 8(a) JV (meaning both or all members are 8(a) Participants) SBA approval of the JV agreement is required prior to award. If you're a Mentor-Protege 8(a) JV, SBA approval of the JV agreement is required prior to submitting an offer. Do you agree with this interpretation? If not, why?
  4. Our consultant (who's a former DCAA auditor) is telling us that DCAA's interpretation of 52.216-8 Fixed Fee (Jun 2011) is that the contractor is required to withhold 15% of the fixed fee, that the 15% is mandatory, and if contractors don't do this, they'll be cited with an accounting system deficiency. She's consulted for several other contractors and said that one of them was recently cited with an accounting system deficiency for this very reason, which was fully supported by the DCMA ACO. My interpretation of this clause is that it does not impose any kind of obligation on the contractor. The clause does contain a requirement for the Contracting Officer to withhold a certain amount/percentage of the fee, and to release a certain amount/percentage as stated in the clause, but there’s no obligation for the contractor to withhold any of the fixed fee (i.e. underbill the Government on the fee). I think the contractor should bill the full amount of the fee and the Contracting Officer is responsible for withholding the required amount of fee from payment. If the contractor were to underbill the fee, there would be nothing for the Contracting Officer to withhold. If the Contracting Officer doesn’t do any withholding of the fee, that should be on the Contracting Officer, not the contractor. Our auditor then told me that DCAA pamphlet 7641.90 ("Information for Contractors") also states that it's the contractor's responsibility to withhold 15% of the fixed fee. I reviewed the manual and it doesn't actually state that, but rather refers back to FAR 52.216-8 and provides a sample voucher where the Contracting Officer has designated a 15% reserve for the fixed fee. I certainly don't view this sample voucher as direction or a requirement for the contractor to withhold/underbill 15% of the fee. While a withhold amount less than 15% is apparently almost unheard of, the FAR does state that the amount of the withhold is a subjective "not to exceed 15%, or $100,000, whichever is less, to protect the Government's interest", so the reserve technically could be a lower percentage, based on what the Contracting Officer feels is adequate to protect the Government’s interest. That DCAA could cite a contractor for not doing something that isn’t required by contract is very frustrating and concerning to me. The clause/regulation states as clear as day that the Contracting Officer is to withhold a reserve not-to-exceed (discretionary amount) 15 percent of the total fixed fee, which is why I’m surprised that DCAA could expect contractors to interpret that to mean that the contractor must voluntarily underbill the fixed fee by exactly 15% (a non-discretionary amount). And apparently if contractors don't do the mental gymnastics required to arrive at this same bizarre interpretation of the clause, DCAA will cite the accounting system as deficient and may even require repayment of the fee reserve that "should have been withheld". I should also mention that our company has had several CPFF contracts with both the DoD and EPA over the years and we've never been required to withhold a percentage of our fixed fee from billings and have also never had any portion of fee withheld by the Gov't. I'm not saying it shouldn't have been withheld (it should have), but it just hasn't happened. Am I missing something here?? Has anyone else had to deal with this?
  5. Thanks, Help. I really appreciate your thoughts on this. And thanks for your contribution to this site. I can't tell you how many times I've found answers to these types of questions by coming here and reading your comments.
  6. Yes, it's a CPFF and 52.216-7 will be included. The indirect rates aren't fixed--they're actually ceilings. The Gov't is calling them capped rates. I apologize if I said they were fixed or made it sound like they're fixed. So we can bill at our actual indirect rates up to the ceiling/caps. Hopefully that clears things up.
  7. They're ceilings. The Gov't is calling them "capped rates". Yes, we will bill at our actual rates up to the NTE ceiling rates.
  8. The proposed indirects are ceilings for proposal and billing purposes. So we can bill actual indirect rates but NTE the ceiling/capped indirect rates established in the contract. Does that clear it up?
  9. Retreadfed, the indirects proposed by each offeror will be the established capped indirect rates for proposal and billing purposes on task orders should the offeror be awarded a contract.
  10. I'm sorry, I misspoke. We aren't covered by the requirement for cost or pricing data as this is a competitive procurement. From what I understand, we also don't have billing rates. We have very few cost-reimbursement contracts so we calculate our rates on a contract by contract basis, and usually just end up using our most recent DCAA-accepted rates. What you're saying makes sense. However, our experience has been that Contracting Officers almost always want to see SOMETHING from DCAA, and our "accepted" rates letter from DCAA is what we typically provide. I think it gives the Contracting Officers a sense of security to see that DCAA has reviewed our rates and accepted them. The impression we get is that they expect our proposed rates to match what DCAA has accepted. But you're saying that we shouldn't rely on these rates as they likely aren't the most current, accurate, and complete data, which seems to make more sense given we don't have an FPRA. So back to my question, would you suggest that we forget about the rates we used in our initial proposal and that we update our rates for our final proposal revision to reflect" a current projection of future rates, based on anticipated costs and anticipated revenues"?
  11. We used our 2016 incurred rates to come up with our estimated cost for a CPFF proposal. DCAA did an informal review (not a full-blown audit) of these rates and they were "accepted". It's been about a year since we submitted our proposal and we finally received notice that we've been included in the competitive range and we're now in negotiations with the Gov't. We now have DCAA-accepted 2017 incurred indirect rates, which have changed slightly from our 2016 rates. I don't know if we should use the 2016 rates that we originally used to estimate our cost for the proposal, or if there's some expectation or requirement that we update our rates to the more current 2017 incurred rates. The RFP and negotiations letter are both silent on this matter.
  12. The costs obviously don't benefit other contracts, but my question is whether they somehow benefit the contract in question. If so, then I think we should be able to charge the costs as direct costs. If not, then I don't think they pass the test for allocability and we therefore can't bill them as direct costs. Am I missing something? Probably. That's why I came here.
  13. We have several CR contracts. Yes, we have other contracts that are subject to the cost principles. The invoicing concerns in this situation are related to direct costs. I believe for actual full-blown audits, the costs are accounted for as indirect costs (not 100% sure on this). Our contract is silent on this issue. thank
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