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SITUATION: I work for the Department of Defense (DOD), and my office executes a healthy number of time-and-materials/labor-hour (T&M/LH) determination and findings (D&Fs). My leadership has decided, at legal counsel's suggestion, that the requirements of DFARS 212.207(b)(iii) can apply to all commercial T&M/LH D&Fs, including those done under the authority of FAR 8.404(h)(3). The upshot is that nearly all such D&Fs require Head of Agency (HOA) signature, since nearly all are defined under paragraph (6) of the "commercial item" definition. As you can imagine, this has created an administrative inconvenience. (The idea of delegating this approval authority to the Head of Contracting Activity (HCA) has been raised and rejected.) QUESTION: My question can be phrased specifically or broadly: Specifically, should HOA signature on commercial T&M/LH D&Fs, in accordance with DFARS 212.207(b)(iii), be required when using FAR 8.4 procedures? Broadly, where FAR 12 specifically instructs the reader to defer to FAR 8.4 on a topic, can DFARS 212 "override" FAR 12? DISCUSSION: I suspect that the answer is "no" (acknowledging that my response is at least partially biased). Part of the challenge here is that for DOD employees, there are no less than 5 different regulatory parts that provide T&M/LH guidance. I will attempt to address each in a logical order in walking through my thinking on this: FAR 16.601(d) provides general guidance for a D&F, and directs the reader to FAR 12.207(b) for "further limitations" when purchasing commercial services. Diverting for a moment to FAR 12.102(c), this assigns precedence to FAR 12 over conflicting FAR parts when purchasing commercial items. FAR 12.207(b)(1) and (2) provide commercial item D&F guidance; however, 12.207(b)(4) states: "See 8.404(h) for the requirement for determination and findings when using Federal Supply Schedules." In my opinion, this language unambiguously intends for the reader to exclusively defer to 8.4 for T&M/LH D&F guidance when using 8.4 procedures. (Compare the language in (b)(4) to the "additional approval" language in (b)(3).) Based on #3, there is no conflict as described under #2. FAR 12 defers to FAR 8 on this specific topic. As promised, 8.404(h) creates its own set of D&F requirements. Significantly, the highest stated approval authority here is HCA. Strangely, DFARS 208 is silent on the topic of T&M/LH contracts. DFARS 212.207(b), however, creates additional limitations when using T&M/LH contract types for commercial items. Specifically, (b)(iii) requires HOA approval when paragraph (6) of the "commercial item" definition applies. DFARS 216.201(d) provides additional limitations and guidance for T&M/LH D&Fs. My opinion is that if DFARS intended to impact the FAR guidance to defer to FAR 8 in these situations, it should have unambiguously done so by addressing it under DFARS 208 (as it did under DFARS 212 and 216). The most compelling counter-argument I've heard is that this reading would nullify the intent of NDAA for FY 2008 (on which DFARS 212.207(b) is based), which views T&M/LH contracts with skepticism and attempts to limit their usage. I agree that it would have been odd for DOD to intend to allow for a FAR 8.4 T&M/LH loophole, but in effect I believe this is what it did by neglecting to address the topic under DFARS 208. What say you, Wifcon community?
My company has a time and materials contract for which we are a first tier subcontractor. The prime contract is not a FAR 12 procurement. The prime contractor wanted to include a requirement in the contract that travel would be subject to the Joint Travel Regulations (JTR). My company pushed back. We are a subcontractor supplying commercial products and services under the T & M contract. The prime tells us that their contract requires that their travel doesn't exceed the JTR. However, it's my understanding that the JTR is only for military personnel. I suggested to my team that we agree to a clause that commits us to compliance with 31.205-46 which I interpret as requiring that we will use the govt regulations as guidelines but ultimately adhere to our company's internal travel policy which follows the Federal Travel Regulations (FTR) guidelines and requires a Travel Exception Approval be submitted for any thing in excess of those per diem rates. My co-worker doesn't interpret 31.205-46 in the same manner and in fact insists that we should have requested 52.212-4 alt 1. I don't believe 52.212-4 to be appropriate as the prime contract is a FAR 15 procurement. I'm now doubting if we should even mention 31.205-46 since we offer commercial supplies and services, saying only that we would adhere to our company's travel guidelines.
Hello, My company has a BPA with FFP labor rates. The 'Calls' to follow have not said T&M or FFP; However the Contracting Officer says these are T&M/Labor hour Task Orders; We'll deal with that separately, My questions are pretty general regarding normal practice on T&M contracts, because this will now change how we price in the future (we've been pricing them per month, FFP). 1. Let's say the employee has 15 days of PTO and 10 Holidays for a total of 200 hours paid off. This leaves 1880 billable hours, very standard. However, with T&M contracts and option years...what if this person doesn't take their PTO and they work more than 1880? Can we still bill all of those hours (example: 1900 worked or whatever)? 2.Do we have to make them lose the PTO if they don't take it by contract "Base Year" end? Essentially, the bucket of money for the "Base Year" will go away and a NEW bucket will be given the "Option Year 1". *The employee not taking PTO in Base year and instead taking it in Option Year 1 will cause us to Over-bill hours in Base Year and Under-bill in Option Year 1. An example with numbers as how exactly this Task Order was awarded BASE YEAR (fictional numbers but real structure) is: 1880 Hours $100 Hour Rate $188,000 Total Award T&M Labor Hour Task Order What are your thoughts and experience. Feel free to correct me on my points, as this is our first T&M contract.