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Everything posted by elgueromeromero

  1. 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.
  2. 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
  3. The Government is auditing several previously submitted invoices (some paid, some pending payment) on our CPFF contract. They are requesting that we meet in person as they have several questions on our invoicing process and they claim to have found several discrepancies in some of our invoices. In the request for the meeting they stated that they don't think any costs incurred for travel or time associated with explaining and defending our billing processes and these discrepancies should be chargeable to the contract. Are these costs typically allowable? This seems to be sort of a gray area. I've reviewed FAR 31.2 and it seems to come down to whether these costs would meet the following test for allocability: (a) Is incurred specifically for the contract; YES (b) Benefits both the contract and other work, and can be distributed to them in reasonable proportion to the benefits received; or ?? (c) Is necessary to the overall operation of the business, although a direct relationship to any particular cost objective cannot be shown. ??
  4. Yes, I understand this. I was thinking more in terms of what should have been included in our subcontract when I cited this. Our subcontract includes a laundry list of FAR clauses and says to flowdown "to the extent applicable". We'd like to avoid scaring off a small company providing a commercial item with a bunch of unnecessary FAR clauses. If our subcontract gives us the discretion to flow down clauses "to the extent applicable" , couldn't we justify that the only "applicable" clauses in our subcontract that should be flowed down to our subs are those that are included in 52.244-6, since those clauses are the only clauses that are really applicable to a subcontract for a commercial item?
  5. Correct, we have a subcontract with a company who holds the prime federal contract. There are a number of clauses listed under the "flowdown" section of our subcontract with the prime, but this section states that they are to be flowed down "to the extent applicable". So because we don't have privity of contract with the federal agency, and because the prime didn't include 52.244-6 in our subcontract, we should ignore FAR 44.402(b) and basically go through all of our clauses and flow down all that include a "shall include in all subcontracts" prescription (as applicable)? So we'll end up including clauses that wouldn't normally be flowed down to a commercial item subcontract, such as 52.225-13 Restrictions on Certain Foreign Purchases, for one example.
  6. Background We were issued a subcontract from a 1st-tier federal subcontractor to perform construction work. FAR 52-244-6 was not included in our subcontract. Now, we're about to issue a commercial subcontract and we're wondering if we should include the flowdowns listed in 52-244-6 that should have been in our subcontract. There are other clauses listed in our subcontract, but in light of FAR 44.402(b), I think that only the clauses listed in 52-244-6 need to be flowed down to any subcontract for commercial items/services. Question Should we flow down the clauses in 52-244-6 in our commercial subcontract even though that clause isn't in our subcontract, or do we need to go back to the company that issued the subcontract to us and ask that they modify it to add FAR 52-244-6? Or are we not obligated to flow down any FAR clauses?
  7. Is there any regulation, legal precedent, or OCI issue that would preclude a contractor from receiving two awards under the same IDIQ contract and then subsequently competing for task orders under the IDIQ? Background: The Gov't issues an IDIQ that consists of two pools: Small Business and Unrestricted. The RFP states that some task order competitions will be set aside for the SB pool, and others will be Unrestricted, and that the Gov't anticipates a total of 10 contracts will be awarded (5 SB and 5 Unrestricted). The RFP goes on to state that for the Unrestricted task order competitions, the SB IDIQ contract holders may compete against the Unrestricted IDIQ contract holders. Let's say there's a LB contractor who submits a proposal for the Unrestricted pool, and then also submits for the SB pool under a SB Mentor-Protege arrangement. Also, let's say the Protege under this Mentor-Protege arrangement will be a named team member/subcontractor under the LB contractor's Unrestricted contract. Is there any issue here with regard to OCIs, limiting competition, collusion, etc? If the LB had a good reason to want to submit a proposal from both the Mentor-protege entity and the LB entity for an Unrestricted task order competition, is there anything that would preclude it from doing so? Thanks in advance.
  8. Scenario: The Gov't issues a solicitation for a FFP MATOC that requires offerors to provide "ceiling rates" for several labor categories, some of which are SCA-covered. The solicitation includes a sample task with an SCA WD applicable to the location of the work for the sample task. The solicitation states that future task orders will be performed at other locations but does not include any other WDs or identify the locations of future tasks. Question: How have you seen this handled with respect to pricing the SCA-covered labor categories? Are offerors expected to propose SCA rates high enough to cover any potential WD? That could be a big range if, for example, the sample task will be performed in San Antonio, TX but with the potential for future tasks to be performed somewhere like San Diego, CA. This pricing strategy would of course cover the contractor's risk, but wouldn't make a lot of sense with regard to being price competitive. Can the Gov't award a task order with SCA rates higher than the "ceiling" rates in the awardee's contract if there's a future task order RFP that includes a WD with rates that exceed the SCA rates in the contract?
  9. I was trying to refresh my memory on A-E contracts, and specifically, FAR 52.236-23, and I found the following from the CON 243 course materials under the section titled FAR 52.236- 23, Responsibility of the Architect-Engineer Contractor: "For the Government to recover any costs caused by the A-E, there are certain things that the government must prove. Some of the more important issues are: There must be proof that there was, in fact, a design error or omission There must be proof that the error or omission was a result of the firm's negligence. Negligence is defined...(goes on) There must be proof that the government suffered damages as a result of the error or omission. The Government also has a responsibility to mitigate any damages it incurs as a result of the error or omission. There must be proof of "no proximate cause." This means that the error or omission by the A-E firm (and the associated damages) are solely the responsibility of the contractor and no action by others contributed to the additional costs to the government. Regarding the last part about "no proximate cause"--does anyone know where this info comes from? If so, can someone please provide a reference to the applicable regulation or case? I can't seem to find anything in the FAR or case law that supports this statement, and it's relevant to a situation we're dealing with. BTW, I tried submitting this question to DAU's "Ask a Professor" since I'm specifically asking about info from their course, but for some reason couldn't get the question to submit.
  10. If an unsuccessful offeror received the "NO" answer above, the offeror would almost surely be successful in a protest to the GAO. So I think the a CO in this situation would have something to be afraid of. I actually work for a contractor now but I was a CO previously. There were at least 3 occasions where I received an email proposal just minutes after the deadline. I didn't accept them based on the FAR rules and GAO precedent, but I can tell you that many COs I've worked with in the past would have (and have) accepted proposals in those situations based on the "Government Control" exception. Sometimes the offeror sent a delivery receipt that the CO relied on and other times it was more of "meh, I'm sure they sent it on time, it's just that emails take so long to get through our darned Government servers." No one on the source selection team ever checks the time the proposals were received in the CO's inbox, and unsuccessful offerors never seem to question it. Should they though? Why haven't they? Possibly because it's a contentious question that hints at protest and signals distrust in the integrity of the source selection process? I don't know, but if a contractor loses a contract after putting in hundreds of hours and thousands of dollars of effort in preparing the proposal, wouldn't they at least want to make sure that the successful offeror submitted the proposal on time? In my opinion, when an offeror's proposal shows up even one minute later than the deadline in the RFP, it's no different than an offeror failing to provide a required bid bond for a construction RFP. Almost every CO would throw out an offeror for the bid bond issue, but I'll argue that many would not throw out a contractor when their proposal is received "just a few minutes" after the deadline.
  11. “Was the awardee’s proposal received in the contracting officer’s inbox by 3:00 pm EDT”? Do you think that’s a relevant question about whether source selection procedures were followed? If not, apart from being honest, what’s to prevent a CO from accepting a late proposal if they aren’t required to disclose that information?
  12. I agree. Agreed. But should the GAO or COFC decisions influence the CO's decision? I think it can be a problem. For one thing, the disagreement between the GAO's interpretation and that of the COFC could encourage forum shopping with respect to protests. It could also put COs in a tough situation where following the FAR and GAO precedent could still result in a painful and likely successful COFC protest. Finally, I think late proposal rules should be consistent and objective rather than a subjective process based on COs' differing interpretations of the rules (potentially influenced by COFC and GAO). I agree with the GAO that FAR 52.215-1(c)(3)(ii)(A)(1) becomes a nullity if the Government Control exception were to apply to electronic proposals and that the clause should be read and interpreted as a whole. I'm a little torn as to whether the Government Control exception SHOULD apply to electronic proposals. But if so, then FAR 52.215-1(c)(3)(ii)(A)(1) should be deleted/removed. What are your thoughts on my second question?
  13. I’ve been reading several GAO decisions regarding electronic proposals where contractors emailed proposals prior to the RFP deadline but the proposal didn’t show up in the CO’s inbox until after the deadline and the GAO ruled that the proposals was late based on FAR 52.215-1(c)(3)(ii)(A)(1). I’ve also read the COFC decisions where they disagree with the GAO in that the “Government Control” exception does apply to electronic submissions. Speaking from experience, I know that Contracting Officers interpret and handle this differently. In these situations, some would accept the proposal and some would reject it. It’s basically a crapshoot. So, here’s my questions: 1. Based on the disagreement between the GAO and COFC regarding the “Government Control” exception, how should a CO interpret the FAR rules regarding late electronic proposals? 2. As part of a post-award debriefing for an RFP that required electronic submission of proposals, can the contractor receiving the debrief request evidence of the time of reciept of the successful offeror’s proposal, or would this have to be requested through FOIA? I would think that if timely submitted, the CO would have no reason not to provide this. If, however, the CO is not willing to provide that information, there’s a possibility they could be trying hide something. Again, I’ve personally witnessed CO’s accepting late (according to FAR and GAO) emailed proposals where the proposal comes in a few minutes after the deadline. I personally think this is actually fairly common, based on my experience as a CO and working for a contractor.
  14. The FAR states that a suspension of work may be issued by the contracting officer. Can this be delegated to a COR? Why or why not? If not, what about in a situation that involves health or safety? (e.g. actions of contractor are putting the life or health of an employee in danger). FAR 1.602-2(d)(5) says that the COR "has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions" So can the CO delegate anything to a COR that doesn't affect "price, quality, quantity, delivery, or other terms and conditions of the contract"? Not sure if a suspension of work order would qualify as affecting the delivery or some other term of the contract. Thanks
  15. I don't think this type of arrangement would qualify as a public-private partnership - it's basically just subcontracted work where the contractor wants to pay the federal employees to help him perform certain tasks required in his contract in a more efficient manner. I'm assuming that under your contract the contractor is not paying the Government? Has anyone else heard of a contractor hiring/paying federal employees to assist them in completing a federal contract?
  16. A contractor wants to know if he can use federal employees to accomplish work on a federal contract. He’s proposing to pay the agency directly or reimburse the agency for the employees’ time via a modification to decrease his contract price. I’ve never heard of a contractor doing this, and have some concerns regarding potential liability and/or OCI issues, but I haven’t been able to find any regulation or policy that speaks specifically to this. The federal employees work for the same agency that awarded the contract, but weren't involved in any way during the source selection and haven't been involved in the contract since the award. Common sense and my gut feeling is that he cannot do this, but I'm sure if I tell him this isn't allowed, he'll ask what specific regulation prohibits this arrangement.
  17. Thanks - that definitely makes sense. I guess I'm getting hung up on the wording in FAR 22.1007 (below) and that the definition of a 'contract' in FAR 2.101 includes 'orders'. 22.1007 Requirement to obtain wage determinations. The contracting officer shall obtain wage determinations for the following service contracts: (a) Each new solicitation and contract in excess of $2,500.
  18. In this case, no, it doesn't. That said, there have been other situations where the task's POP has extended past the base year POP.
  19. Our office is looking for some clarification on how to handle wage determinations on IDIQ contracts. Example: I have a $100,000 IDIQ contract for services with one base year and four option years. According to FAR 22.1007, I'm required to obtain a wage determination for the base contract. Let's say that six months into the contract's POP I issue a task order for $50,000 and that there has since been a new WD issued by the DOL. Since a task order is technically a contract, do I include the new WD with the task order or does the WD issued with the base contract cover all task orders issued during that year? If the answer is the former (new WD), then wouldn't that invalidate the WD on the base contract and basically trigger the requirement to modify the base contract to include the new WD just issued with the task order? If not, then you would have two conflicting WDs for that task order. The same would be the case with new WDs issued with modifications to exercise an option in this scenario.
  20. Question: Is there ever a situation (besides labor surplus, HUBzone, or disaster recovery) where the offeror's geographic location can be taken into consideration as part of the price evaluation? I've always heard that doing so would be a CICA violation but I can also see the other side of the argument that lowest price isn't always lowest cost. Scenario: We have a FFP requirement to paint an airplane. The airplane will need to be flown by Government personnel to the successful offeror's facility for the painting and then flown back once the work is complete. Transportation cost will obviously be a very large part of the (actual) cost. If the plane is located in the western US and an offeror located on the east coast bids the lowest price and gets the award, it could easily end up costing the Government a lot more than awarding to a higher-priced offeror who is geographically located closer to the airplane. Can we somehow factor in the actual cost, or can we only look at the price proposed without considering the physical location? If we can somehow figure out a formula for the offerors to use that would factor in the cost of transporting the plane to their facility, would that be appropriate? I'm guessing the answer is "no" and that we will probably end up spending more of our taxpayer's money in the name of "full and open competition" but wanted to make sure I wasn't missing something. Thanks in advance.
  21. It's actually a GAO protest and it was received 20 days after award. Offeror received notification of unsuccessful offer on a Friday morning. The government received offeror's request for debriefing the following Wednesday afternoon. Am I correct that you don't count Friday but you do count Saturday and Sunday since "Day" in Part 33 means Calendar Day? The protest was not received within 10 days from when the basis of the protest is known or should have been known. In other words, the protester's arguments are not challenging anything that was brought to light in the debriefing - everything was already known or should have been known prior to the debriefing.
  22. Situation: An offeror requested a debriefing five (5) days after receiving the notice that their offer was unsuccessful. The Government agreed to accommodate the untimely debriefing request. Question #1: Can the unsuccessful offeror still protest since the debriefing was not requested within 3 days after notification? Question #2: If so, is the CO required to stay performance upon receipt of a protest submitted after an untimely debriefing request? FAR 33.103(f)(3) and 33.104©(1) seem to suggest that the debriefing request must be timely in order to stay performance; however, see Raith Engineering, B-298333.3, January 9, 2007 (below), which basically states that in regards to filing a protest, it doesn't matter if the offeror secures a required debriefing (i.e.timely requested per FAR 15.506(a)(1)). Raith Engineering, B-298333.3, January 9, 2007 "The only effect a required debriefing has on our timeliness requirements is the tolling of the filing period in limited circumstances. See Trifax Corp., B-279561, June 29, 1998, 98-2 CPD ¶ 24 at 4-5. Even where a disappointed offeror does not secure a required debriefing, it continues to retain its right to file a protest within 10 calendar days after it learns, or should have learned, the basis for protest, provided it has diligently pursued the matter. See 4 C.F.R. § 21.2(a)(2). This includes the right to file a timely protest based on information obtained during a debriefing that was not required.1 See Trifax Corp., supra (holding that a protest based on information first revealed in a non-required debriefing may be filed under the generally applicable regulations for filing timely protests)." Question #3: How does FAR 15.506(a)(4)(ii) tie into all of this? Finally, if an unsuccessful offer has the same right to protest under a non-required debriefing offered after an untimely request for debriefing, then why would a CO ever agree to accommodate an untimely debriefing request if it's going to restart the ten-day clock for filing a protest? Thanks
  23. I had a Government Entity (county) submit a quotation in response to an RFQ for a commercial service. The county is registered in SAM and has a DUNS so I'm inclined to assume that they can receive a federal contract. I understand that for the purposes of set-asides they are considered "other than small". I know our office has awarded to the State in the past but it's always been under the authority of 6.302-1 (only one responsible source). I understand the issue of an uneven playing field as a Government entity is subsidized and doesn't have to worry about profit. My instincts say that it wouldn't be fair to allow them to compete for those reasons but doesn't the Government allow other non-profit (non-Government) organizations to compete against for-profit businesses and organizations? My question is whether a Government entity (county, in this case) can compete against a private entity for a federal contract. If they can, what authority allows us to award to them? If they can’t, what regulation prohibits them from competing against a private entity and/or receiving a contract?
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