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Everything posted by elgueromeromero

  1. The Gov't added "and prices". Specifically, the USACE. Basically a paragraph that said something along the lines of: in accordance with FAR 52.217-8, the Government may require continued performance of any services within the limits and at the rates and prices specified in the contract. And then they went on to add that it applies to task orders as well. Good point on raising the issue during the solicitation phase. I think in this case, we simply didn't notice it until after award. Thanks
  2. Thanks, all. I appreciate the guidance. While I did use hypothetical scenarios, my company is dealing with some real life situations related to this clause. We've seen in more than one of our contracts with the Gov't language related, but in addition to, FAR 52.217-8 that states"...at rates and prices specified in the contract" [emphasis added]. So I wanted to make sure I understood how FAR 52.217-8 is supposed to work, and what rights it gives the Gov't, given the addition of "and prices" that we've seen in our contracts. We've also had a Prime try to force us to keep working for an additional 6 months at no additional cost. When we pushed back, they cited this clause, which was flowed down to us from their prime contract. I was pretty confident they were misinterpreting the clause, but wanted to ask here to be sure. Again, I appreciate everyone's guidance and expertise!
  3. Well, this was a hypothetical scenario, but why don't we just say they're based on the completion of definable and measurable steps, which are considered integral and necessary to the achievement of the stated performance objectives.
  4. Interim invoices. Milestone payments in accordance with an approved Milestone Payment Schedule.
  5. Any thoughts on how this might be handled in FFP service contracts that are awarded on a lump sum basis and don't contain any contract rates?
  6. FAR 52.217-8 states, in part, that "The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months." Scenario: FFP IDIQ contract that includes FAR 52.217-8. The contract includes various labor categories and rates. The contractor submits a proposal for a task order which consists of 100 hours of engineering support at the contract rate of $150/hour for a total proposed price of $15,000. Period of performance is 12 months. The Gov't issues a modification prior to the end of the POP to extend the task order by 3 months and cites FAR 52.217-8. Question #1: Does this option clause obligate the contractor to continue providing the engineering support services for another 3 months at no additional cost to the Gov't? Or, is the contractor simply obligated to continue working under the $150/hr rate for the 3-month extension, but with a price increase to account for the additional hours? Let's say the 3-month extension translates to an additional 20 hours. Would the Gov't be required to increase the price by $3,000? In other words, when the clause states that "the Government may require continued performance of any services within the limits and at the rates specified in the contract", does "rates" really mean "rates", or does it actually mean "price"? Question #2: If the answer to Question #1 is that "yes, rates means rates", how is the level of effort determined for the extension period(s) given that the option can be exercised unilaterally?
  7. Scenario: We have a large remediation contract that contains both an SCA wage determination and a Davis-Bacon wage determination. Most of the work we do under this contract is service work, but there is some construction work occasionally that's subject to the DBA. Part of the remediation work under our contract requires drilling for, and installation of, monitoring wells as part of an environmental remediation system. We've previously determined that the drilling and subsequent installation of the monitoring wells is NOT subject to the DBA primarily because the wells are temporary and will be either abandoned and/or filled in after the monitoring is complete and the remediation system is decommissioned, and as such, are not "works" because they are not improvements. Note that our SCA WD includes a labor category of "well drilller" and our DBA WD includes a labor category of "drill operator". The DBA "drill operator" wage is quite a bit higher than the "well driller" wage. To add to the confusion, and what is causing me to reevaluate this, is that I just noticed that the DBA WD includes "Environmental Remediation" and "Monitoring Well" in its labor classification description of "Laborer". I've spent a lot of hours researching this issue and can't seem to find anything definitive, and I've read some conflicting information in various guidance documents and the like. Does anyone have any guidance or information that might be helpful in determining whether SCA or DBA applies to this type of work?
  8. Question: Does the prime contract scope or the subcontract scope determine wage requirements of the subcontract? Our prime contract includes both a DBA WD and an SCA WD. The subcontract we're issuing is for well drilling services. We previously determined (for various reasons) that this type of well drilling is not "construction work". However, our drilling subcontractor thinks that DBA should apply to their subcontract. Is the applicability of DBA vs SCA dependent on the Prime's scope of work and specific facts surrounding the drilling work, or is it strictly based on the subcontractor's scope, which is essentially just "drilling of wells"?
  9. This is an IDIQ with USACE. It seems that you're suggesting Option #1, correct?
  10. The Gov’t has defined “fully loaded labor rates” as direct rates plus applicable indirects. So the price to the Gov’t prior to adding profit. Same applies with the Sub rates.
  11. This isn’t a T&M or LH contract. It’s a FFP IDIQ with maximum labor rates to be used when pricing FFP task orders.
  12. We have an FFP A/E IDIQ contract that includes a list of "maximum fully loaded labor rates for the Prime and Subcontractors". We've been selected to provide a price proposal for a Task Order and we're in the process of setting up a subcontract with "Sub A". My question pertains to what is acceptable (allowable?) when it comes to the labor rates we use to price the TO proposal. If, for example, we're using "Sub A" for a particular labor category in which our maximum contract rate is $150/hr, but Sub A has proposed a rate of $125/hr, are we able to still use our $150 max contract rate to build up our price, or would we need to use Sub A's actual rate of $125? Alternatively, is Sub A allowed to build their price using our $150/hr contract rate even though their actual cost is $125/hr? Also, provided Sub A's person meets the qualifications for this particular labor category, do we even need to disclose to the Gov't that we're subcontracting out that particular labor category? Note that this is a FFP/lump sum TO estimated at $150K where labor is only a portion of the price. Also worth noting is that Sub A provided its $125/rate during the RFP phase for the base award, but because this was an overlapping labor category (in that it is one in which both us as the Prime and Sub A may use), we proposed our higher rate of $150/hr because the Gov't said they only wanted one rate for each labor category. It seems that there are three ways to handle this: 1. Propose the sub's actual rate of $125/hr. 2. Propose the max contract rate of $150/hr but issue a subcontract to Sub A with their originally-proposed rate of $125/hr, in which case we as the Prime would keep the difference as profit. 3. Propose the max contract rate of $150/hr and issue a subcontract to Sub A with the max contract rate of $150/hr, in which case Sub A would keep the difference as profit. Thanks in advance.
  13. 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.
  14. 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.
  15. 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?
  16. 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?
  17. 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.
  18. 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.
  19. 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.
  20. 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?
  21. 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.
  22. 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"?
  23. 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.
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