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Showing results for tags 'Billing Rate Agreements'.
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First – I apologize if this post is repeated from elsewhere in the forum. I performed several keyword searches and read a number of posts and did not see it addressed. Background: FAR 52.216-7(e) requires two conditions for billing indirect costs (anticipated final rates, and mutual agreement). In my case, the Company’s Cognizant Agency is behind in reviewing/approving billing rates by years (and even further behind on final rates – no surprise there to anybody, I’m sure). We have indirect rate swings (both ways) in prior years that – when netted against each other - are material to the Company and have a greater risk of being de-obligated and going unpaid with the passing of each additional day. Our FY 2013 agreements extended into June 30 of 2014 and just expired. While the company submitted provisional billing rate packaged in early January, we have no response or indication of reviews and/or impending agreement issuances. The Company wants to bill true up invoices for prior years based upon our certified incurred cost submission rates. Many of our Federal clients will not pay the true-up invoices without an actual rate agreement. Overall, the cash shortfall for FY 2014 billings alone is in the millions. Questions: How does a contractor bill indirect cost on flexibly-priced contracts when there is no current, unexpired mutually negotiated indirect cost billing agreement upon as per FAR 52.216-7(e)(2)? E.g., is there another clause or provision or procedure of which I am not aware that allows a contractor to bill certified, submitted (and unaudited) final indirect rates (or course with the proviso that – should the audit find unallowable cost, the Company would repay for any amounts decremented) I have been considering submitting both provisional rate submissions and billing true-up notifications with “expiration language”, such as: “As the enclosed indirect cost rates represent the [Company’s] anticipated final rates under FAR 52.216-7(e)(1), [Company] will consider a mutual billing rate agreement to exist with [Agency] under FAR 52.216-7(e) for billing these rate prospectively and retrospectively unless [Agency] provides written notice to the contrary by [insert Reasonable Date Here]” I realize that – in legal parlance – a non-response would constitute “implied consent” should the Agency not respond in writing by the stated date. I am also not a JD and especially am not a Government Contracting JD, so - to that end, is implied consent enforceable against the Federal Government? From a equitability in contracting perspective, it seems terribly inequitable to the contractor to float the Government’s cost because they are unable to execute their charged oversight functions (reviews and audits) on a timely basis. As an aside, I know that there’s always the potential to request a COFD on provisional or final indirect rates as submitted, which would accelerate the Agency’s requirement to address the matter to 60 days and, if not addressed, can become a CDA claim. While this is technically a solution, the company risks its client relationships in doing this and it is not a preferred choice. Any thoughts or advice would be greatly appreciated.
