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All, I'd like to get your opinion on a disagreement we are having with one of our DCMA folks. We have been performing under a CPFF contract since 1/1/14 which includes the 52.216-8 clause, and our KO has not withheld any payment of fee to date. DCAA recently audited the contract records, and deferred the question to DCMA on whether or not things have been handled appropriately. Our DCMA POC's answer was simply an e-mail stating "15% fee withhold is mandatory. The contractor has overbilled and no more billing is permitted. It is mandatory, that 15% of the fixed fee be withheld until such time as the Contractor's 2014 Incurred cost proposal is deemed adequate." I contacted the DCMA POC and stated that I don't disagree that the KO should withhold payment up to the 15% or $100K as the FAR clause indicates, but I contested the fact that he is claiming that "contractor has over billed and no more billing is permitted", stating that the onus is on the KO to withhold payment rather than for us to withhold billings (as an aside, our KO expressly told us not to do so). Am I crazy here? In the past, we automatically retained 15% on all CPFF jobs we had which contained that clause, and our DCAA auditors dinged us for doing that and our KOs got angry - it's like we can't win! Please let me know what you think. Thanks for the help!
