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caramel92 posted a topic in Contract Pricing Including CAS & Allowable CostsI have a R&D, CR contract with an educational institution. Therefore, it is subject to OMB Circular A-21. A-21 limits to $25,000 the amount of subcontracts that the educational institution can charge F&A costs on. The contractor is using other companies to perform non-commercial work under this contract--sample testing, biological supplies and testing, that kind of thing. My office has taken the position that this is a subcontract, and therefore subject to the $25,000 limitation imposed by A-21. The institution is asserting this to be a 'vendor agreement' (or supplier contract), as they use these services on more than just this one contract, and thinks that they are properly included in the MTDC of the contract. A-21 does not distinguish between vendors and subcontractors. The contractor is relying on the fact that A-133 makes the distinction. We believe that as they thought to distinguish in A-133, the silence in A-21 is intentional and that they would both be subject to the $25,000 restriction in A-21. I know that some of this depends on the work-they are performing direct work/supplies on the contract (as opposed to a general supplier contract for pencils, for example, which someone might grab to make notes on something under the contract). So my questions are: Does the proper application of A-21 differentiate between subcontracts and vendor agreements, specifically for the purposes of G.2? In the scenerio given, would this be considered a vendor or a subcontractor? Which definition of 'vendor' or 'subcontractor' applies? Is there a ruling (GAO case, FAR clause, Court of Federal Claims case, etc) that I could look to? I've found a few things that lightly dance around the issue, but nothing that addresses it directly. The smokier the gun the better. As a side note, we asked the people who established the indirect cost rates to begin with whether they included these 'vendor agreements' in the MTDC. Their response was a mind-blowing 'your guess is as good as ours' (paraphrased). And because it is CR, the contract doesn't stipulate one way or the other (though in the future we will!)
Given a conflict between the FAR and OMB Circular A-21, which one controls? Both are codified in the CFR. FAR 42.705-3(b.)(6) states that “predetermined indirect cost rates shall be applicable for a period of not more than four years. The agency shall obtain the contractor’s proposal for new predetermined rates sufficiently in advance so that the new rates, based on current data, may be promptly negotiated near the beginning of the new fiscal year or other period agreed to by the parties”. However, OMB Circular A-21(G)(7) states that “Federal agencies shall use the negotiated rates for F&A costs in effect at the time of the initial award throughout the life of the sponsored agreement. "Life" for the purpose of this subsection means each competitive segment of a project. A competitive segment is a period of years approved by the Federal funding agency at the time of the award. If negotiated rate agreements do not extend through the life of the sponsored agreement at the time of the initial award, then the negotiated rate for the last year of the sponsored agreement shall be extended through the end of the life of the sponsored agreement. Award levels for sponsored agreements may not be adjusted in future years as a result of changes in negotiated rates.”. Given a five year (one year base and four one year options) contract, at the end of four years, should the government then apply the newly negotiated indirect cost rates to the fifth year, as suggested by the FAR, or does the rate for the fourth year carry through the fifth, as suggested in A-21, here “If negotiated rate agreements do not extend through the life of the sponsored agreement at the time of the initial award, then the negotiated rate for the last year of the sponsored agreement shall be extended through the end of the life of the sponsored agreement.”. Reading the FAR, the predetermined rate agreement can’t extend through the life of a sponsored contract that lasts more than four years. Further, FAR Clause 52.216-15 (referenced by FAR 42.705-3(b.)(6)) states in part under paragraph (d), “Predetermined rate agreements in effect on the date of this contract shall be incorporated into the contract Schedule. The Contracting Officer (or cognizant Federal agency official) and Contractor shall negotiate rates for subsequent periods and execute a written indirect cost rate agreement setting forth the results.” And under paragraph (e), “Pending establishment of predetermined indirect cost rates for any fiscal year (or other period agreed to by the parties), the Contractor shall be reimbursed either at the rates fixed for the previous fiscal year (or other period) or at billing rates acceptable to the Contracting Officer (or cognizant Federal agency official), subject to appropriate adjustment when the final rates for that period are established.” The implication of this clause being that new indirect rates are negotiated each contractor fiscal year and subsequently applied to the contract. 52.216-15 also references FAR 31.3, which states that “Contracts that refer to this Subpart 31.3 for determining allowable costs under contracts with educational institutions shall be deemed to refer to, and shall have the allowability of costs determined by the contracting officer in accordance with, the revision of OMB Circular A-21 in effect on the date of the contract”. The question is, in light of seemingly conflicting guidance from the FAR and A-21, what happens to the predetermined final indirect cost rates in that fifth year (and potentially beyond)? Any advice would be appreciated.