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elgueromeromero

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Posts posted by elgueromeromero

  1. When the FAR or DFARS says something like "for an acquisition valued at...", how and when is the "value" determined? 

    Scenario: a contractor submits a task order proposal under an IDIQ contract with a DoD agency and its offer is not successful. It requests a debriefing and receives a debriefing letter. The letter states that another offeror was awarded the task order for $9.5M. 252.215-7016 Notification to Offerors—Postaward Debriefings states that "the Government will provide a written or oral postaward debriefing to successful or unsuccessful offerors for contract awards valued at $10 million or more", and that "If a required postaward debriefing is provided, the debriefed Offeror may submit additional written questions related to the debriefing not later than 2 business days after the date of the debriefing."

    So how does the unsuccessful offeror know if the debriefing provided was "required", which would allow them to submit additional written questions IAW the enhanced debriefing rule? Is the "value" the award amount or is it an amount the agency determined prior to issuing the TO RFP? 

  2. On 10/7/2022 at 12:08 PM, Vern Edwards said:

    @elgueromeromero I don't know how big your company is and how much revenue it brings in from government contracts, but I have looked at some of the 61 entries you have posted to Wifcon since you signed on in December 2008, and they all seem to involve inquiries about competitions for service contracts or the administration of service contracts.

    Has your company retained an attorney or consultant to advise you about these kinds of problems?

    Vern,

    We just made the decision today to retain outside counsel to advise on this matter. 

    I typically try to do as much research as I can before seeking assistance from a consultant or attorney. I've been able to find answers to a lot of questions by reading the FAR, referring to Administration of Gov't Contracts (Cibinic and Nash), reading articles online written by Gov Con Attorneys, reading WIFCON content and occasionally posting to the discussion board. If, after all of that, I'm still not confident in the answer or best course of action, I will then advise my leadership that we should retain a consultant or attorney. 

    WIFCON has been very helpful to me both as a Contracts Manager for a federal contractor and during my years as an 1102. I really appreciate the expertise and guidance provided here.

    Thanks

  3. 1 hour ago, here_2_help said:

    In my experience, contractors are expected to comply with prevailing wage requirements, whether or not the CO modifies the contract.

    Even if that means forfeiting the ability to get a price adjustment per FAR 52.222-43? 

    If we decide to voluntarily pay the current wage rates in accordance with a newly issued updated WD, I don't think we'd be able to seek a price adjustment for the increase given that the increase is calculated based on the delta of current rates being paid vs new rates required by new WD. That and because the Gov't has not changed the contract, so we would not have a basis for entitlement for the cost increase.

    It doesn't seem right that a contractor can recover the cost increase if the CO issues the mod, but is on the hook for the additional costs if the CO doesn't follow the FAR and issue the mod with the WD. 

  4. The CO has told us (verbally) that he's too busy to issue mods to incorporate updated SCA WDs. On other contracts where this has come up, I've sent an email to the CO asking if the CO intends to issue a mod to incorporate an updated WD. Unfortunately, in every case, the CO has ignored the email and follow-up requests. 

    We've discussed going to DOL but that kind of seems like the nuclear option. But for this contract, it might be what we end up doing.

    I'd like to first get answers to my questions above before I go to the DOL as I want to be sure I understand our rights, obligations, and that we are interpreting the SCA clauses and regulation correctly.

  5. Situation: Our company was awarded a multiple-year task order with a 5-year period of performance (no options). The task order is subject to SCA and had a wage determination included as part of the award. The task order is not subject to annual appropriations (at least I don’t think it is). 


    Question #1: If I’m interpreting FAR 22.1007 correctly, isn’t the contracting officer required to obtain a new wage determination on the biennial anniversary date of the task order award and incorporate it into the contract via a mod? So for this TO with a five-year POP, shouldn't there be a mod issued at both the year 2 and year 4 marks to incorporate any updated/new wage determination? 


    Question #2: FAR 52.222-43(c) seems to indicate that even if the contracting officer doesn’t issue a mod, the WD current on the anniversary date applies to the contract. Does this mean that the contractor is still required to pay current SCA wage rates even if the current WD wasn't incorporated into the contract?

     

    Question #3: I noticed that FAR 22.1007 distinguish between contracts funded by annual appropriations and those not funded by annual appropriations, but FAR 52.222-43 does not. For contracts not funded by annual appropriations, is it the anniversary date or is it the biennial anniversary date that triggers the requirement to pay the current WD rates? 

     

    Question #4: What are we supposed to do when the contracting officer doesn’t issue mods to incorporate updated wage determinations? Are we still required to start paying the new SCA rates on the biannual dates of our TO? If so, do we just submit an REA for the cost increase associated with paying the updated rates, or would we submit a proposal for a price adjustment IAW FAR 52.222-43 even though we didn’t “receive” a new WD (we would have just pulled it from SAM.GOV)? I’ve always been told that if you “voluntarily” decide to increase wages (i.e., increase them without a mod that incorporates a new WD) to bring them in line with a current WD, you could forfeit your ability to get a price adjustment under FAR 52.222-43. 


    In this case, we asked the CO if he was going to issue a mod to incorporate the new WD and the answer we received (verbally) was basically that they are too busy and won’t be issuing mods to incorporate new WDs. 


    From what I understand, once a contracting officer initially determines that SCA applies to a contract, the Christian doctrine would apply for any future omissions under that contract related to SCA requirements (such as not incorporating a new WD into an existing contract).


    Note that on the old DOL site where the WDs used to live, the following statement was on the homepage in bold, red font: “CAUTION: Users should note that the only WDs applicable to a particular solicitation or contract are those that have been incorporated by the contracting officer in that contract action.” The current Federal Service Desk FAQs for WDs includes a similar statement: “Note: Access to the WDs on the SAM.gov is available to the public for information purposes only. The only WDs applicable to a specific solicitation or contract are those the contracting officer has incorporated in that contract.” This seems to contradict FAR 52.222-43(c).


    So which is it? Is the only WD that applies the latest one incorporated into the contract, which would be in line with the statements from the old DOL site and the current FSD FAQs, or does the WD current on the [anniversary]/[biannual anniversary] date of the contract apply, IAW FAR 52.222-43? I’m so confused. Any guidance would be very much appreciated. 
     

  6.  

    16 minutes ago, ji20874 said:

    1.  So you are dealing with two matters in a single REA (one under the Changes clause and one under the Differing Site Conditions clause)?  Messy, messy.  If it were me, I would deal with these separately as two matters (maybe simultaneously, but separately) -- I think conflating them will only cause you problems.  These are different matters under different contract clauses.

    2.  You didn't answer this question.  For the Changes clause matter, which Changes clause applies?  Pick one:  FAR 52.243-1, -2, or -4.

    3.  You didn't answer this question.  Are you seeking an adjustment to the parent MATOC contract, or to the child competitively-awarded task order?  Pick one

    If the hourly rates in your parent MATOC contract are intended to be ceiling prices for task orders under the contract, well, then they are ceiling prices, right?  I haven't seen the contract and I don't know if your contract sets ceiling prices, and you are making sure not to reveal anything that would allow us to be helpful.  That said, it seems to me that if the changed task order work falls under the parent contract's labor categories, it seems entirely reasonable that the contract's ceiling labor rates would apply.

     

     

    1. Correct. REAs are usually messy anyway 🙂

    2. 52.243-1

    3. Adjustment to task order.

    I don't see how an "equitable adjustment" could be "equitable" if it doesn't make the contractor whole. Wouldn't you say that making the contractor whole is covering their actual costs of performing the changed work? If the contract labor rates are less than the actual rates used to perform the changed work (because of inflation or because the challenges of figuring out how to complete the changed work required additional senior staff), the contractor will likely be reimbursed less than the actual cost incurred. This is not equitable and does not leave the contractor whole.

    Thoughts?

  7.  

    1 hour ago, Vern Edwards said:

    Why do you say the change was "constructive"?

    To clarify, the entire REA wasn't due to a constructive change--just one part of it. Long story, but it basically comes down to a disagreement over contract requirements. The other part of the REA was not a result of a constructive change but rather differing site conditions. 

     

     

  8. There are two parts to the REA. The first is related to differing subsurface conditions and the entitlement is being sought under the Differing Site Conditions clause. The second part of the REA is related to additional requirements imposed upon us by the Government (unrelated to the subsurface conditions issue) and the entitlement is being sought under the Changes Clause (fixed price).

  9. Situation: We have a FFP MATOC with established contract labor rates. We were awarded a competitive task order where our proposed price was calculated using the established contract rates. We submitted an REA for a constructive change to the TO/contract. The Gov't agrees that there was a change and the REA is warranted; however, there is disagreement on the buildup of the labor cost. For labor on the REA, we proposed our actual labor costs incurred + profit. The Gov't is pushing back and saying that we have to use rates "at or below" our contract rates. During a discussions call, they clarified what they meant by "at or below" and said we should need to map all of the personnel used to perform the changed work to a contract labor category and corresponding rate. They then said that we should use actual costs but only if the rates are below the "contract ceiling rates". For example, if we have a burdened contract labor rate of $150/hr for Senior Engineer, but we used a Senior Engineer whose actual burdened rate is $170/hr, we can only charge the Gov't $150/hr. However, if we used a Senior Engineer whose actual rate is $130/hr, we have to use the actual rate of $130/hr. We told them that we disagree, that we'd never heard of this approach, and that it would cause us to lose money. We explained that this approach would not leave us "whole" nor would it be "equitable". We provided some case law references (Bruce Constr. Corp. v. United States and United States v. Callahan Walker Constr. Coto support our position that equitable adjustments are supposed to make the contractor whole and should be based on costs incurred (provided those costs are reasonable). The Contracting Officer (with advice from his Office of Counsel) is sticking to his guns and saying we "can't exceed the contract labor rates." 

    Question: Is changed or added work subject to contract labor rates? I didn't think it was. If it's not, is there any case law that supports this? And shouldn't an REA (where the work has already been performed) be based on costs incurred?

     

  10. 1 hour ago, joel hoffman said:

    Good luck! By the way, did the government or the prime contractor add the extra words “and prices”?

    If you ever encounter this option clause with the added wording in the future in a govt or contractor solicitation, I would advise you to contact the solicitor prior to the closing date and advise them that the words “and prices” are not in the FAR option clause and ask for an explanation of what they mean by adding those two words.

    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

  11. 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! 

  12. 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?

  13. 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?

  14. 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"? 

     

  15. 3 hours ago, joel hoffman said:

    Is this an agency Indefinite delivery contract or one on a GSA or other Schedule? 

    If it is an A/E contract with the Army Corps of Engineers, there should have been some instructions for submission of your task order proposal, especially if it is the first task order. 

    Depending upon the complexity of the task, the task order request for proposal  might include something like this:

    “8. Provide detailed price breakdown with tasks, position classifications, labor-hours, costs and profit for all phases and sub-phases of work. Indicate which work will be performed by the prime firm and each subcontractor.[ Identify factual and judgmental items. ]  Discuss any assumptions made in developing the proposal. Include price quotes for any commercial supplies and services.“

    If not with the UASCE, I would not know what if any, experience or skill the government agency has in negotiated A/E services. It is a negotiated action.

    The agency should be using some level of price negotiations procedures as described in FAR subpart 15.4, or something comparable. EP715-1-7 is the A-E contracting procedures for USACE. 

    It might well be something simplified for a small task but the basic price negotiation principles are described in FAR 15.4 and, for USACE A/E Contracting, the EP 715-1-7.

     https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_715-1-7.pdf

    At any rate, personally, I would expect that you would be an honest professional, truthfully negotiating.

    This is a small task that shouldn’t take very long for you to decide how you will plan to execute it.My advice is to be truthful.

    Otherwise, this looks like a poor (seemingly deceptive) way to kick off a contractual relationship for an IDC. 

     

    This is an IDIQ with USACE. It seems that you're suggesting Option #1, correct? 

  16. 35 minutes ago, joel hoffman said:

    Please define what “fully loaded labor rates” include . Is it the price to the government?  Is the subcontractor fully loaded labor rate the price to the prime? Thanks. 

    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.

  17. 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.

  18. 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. 

  19. 17 hours ago, Retreadfed said:

    Have you read 13 CFR 121.103(h)(3)(iii)?  What, if any, impact does that section have on your analysis?  Note, that 13 CFR 124.520 requires approval of the JV prior to submission of an offer in order to receive "the exemption from affiliation." 

    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. 

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