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Found 18 results

  1. We won a SCA FFP contract for the maintenance of some sensitive equipment where the RFP stated that the hours of operation where going to be from 8:00am to 4:30pm. We have been performing for the past 2 years without issues. As a matter of convenience - at contract start up- we agreed with the COR (I KNOW) to establish two shifts one from 6:00am to 2:00pm and another one from 2:00pm to 10:00pm. Now the customer wants to change the hours of the contract from 10:00pm to 6:00am. We notify the CO that we will comply but that we will request equitable adjustment. The CO came back saying that DOL notify them that since there is no differentials on price in the SCA rates whether the work is performed on day or night we were not entitled to adjustment. Is this correct? I believe that the DOL argument would have be true if the RFP initially stated that the hours of the contract may vary according to customer needs. However since this was not the case I believe that this would be a material change on the contract terms requiring an equitable adjustment. We have already contacted our lawyers how ever I would like to hear different opinions. Thanks
  2. Hello, I am having trouble grasping this concept and was hoping for someone to give me an answer or at least a nudge in the right direction. At my organization that I just started at there are a lot of contracts that say "this order is issued on a firm fixed price basis" but the contracts are set up that they have a fixed unit price that the contractor submits based on the actual quantity incurred. Be it 130 hours for the month at $X.XX per hour or maintenance and repairs that we provided an estimated quantity but they invoice based on actual maintenance and repairs. The CLINs have a total amount on them but it is not stated it is a ceiling. These contracts just don't seem like Firm Fixed Price Contracts to me as they have variability in the total price. I think of a Firm Fixed Price Contract as an agreed to, at award, total amount that the contractor gets if they perform the work. If they only incur 10 hours they get loads of profit or if they incur 10,000,000 hours they lose money. What do you believe is the best practice when you have an unknown quantity but have a fixed unit price and you do not want to do an IDIQ? Can you explain where the line is drawn between FFP, T&M/LH, and a Firm Fixed Unit Price? From my limited explanation do you think these contracts should be issued as T&M/LH? Over a non-FAR contract type? If you have a variable quantity but a Fixed Unit Price is it considered a Firm Fixed Price Contract? If a contractor submitted an REA at the end of the contract saying that we owe them the full amount because we said "this order is issued on a firm fixed price basis" do you think they would win?
  3. I issued a request for pricing for a sole source single award IDIQ contract for services with a five year ordering period. In Section B the contract required fully burdened labor rates for each year of the contract to be used for T&M type orders and FFP type orders. The contractor refuses to provide fully burdened rates for FFP orders stating labor rates are not relevant to the FFP contract value and this approach places significant risk to the contractor. They also argue this approach is not aligned with FAR since they cannot provide a certificate of current cost and pricing data for applicable orders when using out year rates that may be different from actual current labor rates at the time of placing an order. I don't understand what the difference is between establishing labor rates for any contract type and establishing rates in a FPRA. Their position that the labor rates are not relevant to the total value is not totally sound to me as the established rates would be used against the contractor's proposed level of effort that would build to the total FFP value. All GSA Schedules have burdened rates used when developing FFP orders and I've also seen this done on BPAs. I offered to negotiate separate T&M rates from the FFP rates because to me the only difference is profit but this was still unsatisfactory. I don't understand why this is a hard pressed issue for the contractor. I think this is a standard practice to negotiate labor rates for up to five years as is done with GSA and DCMA. Is there any reason why it's not appropriate to negotiate fully burdened rates for FFP orders? Is the contractor's claim about certified cost and pricing data true?
  4. I support a program with contracts defined as firm-fixed price (FFP), labor hour (LH), time and material (TM), indefinite delivery indefinite quantity (IDIQ) with economic price adjustments from collective bargaining agreements (CBAs)/ wage determinations (WDs). The contracts were awarded under FAR 15 with adequate price competition. Due to some security aspects in the SOW the effort is considered non-commercial and agency described as design/detail. Historically, the program has considered these contracts exempt from Cost Accounting Standards (CAS) per the exempted category (15) below, as there was always adequate price competition and they have not collected cost or pricing data with the offers. Is this interpretation correct? (b) The following categories of contracts and subcontracts are exempt from all CAS requirements: (1) Sealed bid contracts (2) Negotiated contracts and subcontracts not in excess of $500,000. For purposes of this paragraph (b)2 an order issued by one segment to another segment shall be treated as a subcontract (3) Contracts and subcontracts with small businesses. (4) Contracts and subcontracts with foreign governments or their agents or instrumentalities or, insofar as the requirements of CAS other than 9904.401 and 9904.402 are concerned, any contract or subcontract awarded to a foreign concern. (5) Contracts and subcontracts in which the price is set by law or regulation. (6) Firm fixed priced and fixed price with economic price adjustment (provided that the price adjustment is not based on actual costs incurred) contracts and subcontracts for the acquisition of commercial items (7) Contracts or subcontracts of less than $7.5 million, provided that, at the time of award, the business unit of the contractor or subcontractor is not currently performing any CAS-covered contracts of subcontracts valued at $7.5 million or greater. (8-11) [Reserved] (12) Contracts and subcontracts awarded to the United Kingdom contractor for performance substantially in the United Kingdom, provided that the contractor has filed with the United Kingdom Ministry of Defence, for retention by the Ministry, a completed Disclosure Statement (Form No. CASB-DS-1) which shall adequately describe its cost accounting practices. Whenever that contractor is already required to follow U.K. Government Accounting Conventions, the disclosed practices shall be in accord with the requirements of those conventions. (See 9903.201-4(d).) (13) Subcontractors under the NATO PHM Ship program to be performed outside the United States by a foreign concern. (14) Contracts and subcontracts to be executed and performed entirely outside the United States, its territories, and possessions (15) Firm fixed price contracts or subcontracts awarded on the basis of adequate price competition without submission of cost or pricing data.
  5. We are a telecommunications provider to the US Government and provide terrestrial data circuits to remote, and sometimes hostile, regions in the world. Under a 12-month contract, the Government requested a proposal for 12 months of service. The circuit is not considered accepted and billable until the Government performs its testing IAW the acceptance criteria. Given the regions we deliver service to, it is normal for circuit activation and testing to take three or more months from execution of a subcontract agreement to the activation and testing of the circuit. The salient points are: 1. The Government contracted for a terrestrial data circuit with a certain number of Megabits per second (Mbps) at a certain location specified in the SOW. 2. The period of performance was 5/1/15 – 4/30/16. 3. In Section B, the Unit specified was “EA,” and the quantity is “From 0.0000” “By 1.0000” to “To 1.0000” 4. The contract type was fixed price incentive in accordance with FAR Part 16.202. 5. We provided the Mbps to the locations specified in the contract beginning in November 2015. There are opinions internally whether we can bill the full amount based on service being provided for twelve months, even though the service was only accepted at month six or not. Terrestrial carriers (e.g. Verizon, Level3, etc.) typically require a 12 month commitment, so even though this firm price, severable service, extends beyond the PoP we will be billed for the full twelve months. The stronger and most likely reading of the contract is that the full amount of the annual service should not be charged unless the service was provided for the full 12-month period. However, reading the FAR suggests we may be able to bill for 12 months of service. Nonetheless, based on my experience with post hoc reviews by stakeholders OTHER THAN the contracting officer (such as inspectors general), a pro rated invoicing approach rather than invoicing the full amount, may be the correct interpretation. The contract does not state if it contemplated “immediate” commencement of performance, it is notable that the documents clearly provide that the period of performance was to be 5/1/15-4/30/16, which is exactly one year. (clause 152.211-705). In addition, the Statement of Work provides that the period of performance was to be “12 months from contract award.” Whether or not it is of note, there is no feasible way for service to commence immediately after order, and we are not billed by our subcontractor until the circuit is tested and accepted by the Government. The question then becomes whether “performance” in this context means (a) to begin to build the required communications capacity, or (b) to actually provide the required communications capacity. If “performance” requires only working on the development of the promised capacity, as opposed to actually providing the promised capacity as a service, then it appears that the fixed fee would have been owed. The contract does not offer any indication as to what it intended. I would also note that nothing in the contract appears to require a pro rating of the price to reflect the timing of the in-service dates (or acceptance dates). Nonetheless, there does not appear to be any language in the contract indicating that the customer can be charged for anything other than an operable network service that meets all of the speed and other technical parameters, and that this service is subject to a fixed price for a full 12-month service period. The task order has ended, but there is some discussion if we are entitled to invoice and be paid the fixed price established in the contract. The incentive monies are secondary, and will be determined and paid in accordance with the terms of the contract. The task order has ended, but there is some discussion if we are entitled to invoice and be paid the fixed price established in the contract. The incentive monies are secondary, and will be determined and paid in accordance with the terms of the contract. As a follow-on question: The Government awarded a single source follow-on contract for this service to begin 1 May 2016 – 30 April 2017. If the guidance is that we can bill for the full twelve months, should there be concern about billing, effectively, twice for the same service (trailing six months after PoP end, and first six months of follow-on) even though the same service is being provided under a different contract?
  6. Cross Charging (Comingling of Contracts) as defined by the DoD IG's Office reads: Dishonest contractors can submit multiple bills on different contracts or work orders for work performed or expense incurred only once. A contracting official can facilitate the scheme and share in the profits by writing similar work orders under different contracts and accepting the multiple billings. (Source: International Anti-Corruption Resource Center, 2014) Fraud indicators related to cross charging (comingling of contracts) include, but are not limited to: Multiple awards for similar work are given to the same contractor. The contractor submits several invoices for the same or similar expense or work under different jobs or contracts. The contractor submits the same or similar documentation to support billings on different contracts. Similar work orders are issued to the same contractor under more than one contract. Contractor receives multiple awards for similar work. Frequent errors/corrections of errors on invoices and other documents. Contractor costs on fixed priced contract are unusually low. Costs on the cost plus contract are considerably higher than those expected or budgeted. Same employee billed to more than one job for the same time period. Whereas, Industry defines cross charging as companies filling various fixed-price and cost-plus contracts simultaneously. While sometimes, shifting the costs and expenses associated with fixed-price contracts to a cost-plus contract in order to increase their profit. Based on the DoD IG's definition, one could interpret that that it would not matter what type of contract it is. Thus, could the following be deemed as cross charging? Is the following actually allowable? Company ABC identified one specific employee on three (3) separate proposals while proposing that said employee would be providing 3/4 of his time (1,410 hours) on the first contract and 1/4 of his time (470 hours per contract) on each of the second and third contracts. The Government awards all three contracts to Company ABC on a firm-fixed-price (FFP) basis for the delivery of services and the company submits fixed monthly invoices per contract.
  7. My company has been awarded a subcontract from a prime NSA (Ft. Meade) contractor, a small business. The award was a stand alone contract to the prime. The prime contract and subcontract were both awarded as FFP (not T&M or cost plus) , and we bid the subcontract as FFP. The referenced clause was included in the award to the prime; it reads, in part, as follows: In order for the COR to conduct a complete and thorough invoice review, the contractor shall provide the following as an invoice attachment for each Technical Task Order (TTO)...: 1) The individuals by labor category being billed for the invoice period 2) The hourly rate for each category/individual. 3) The total number of hours per category/individual. 4) The total amount billed for each category/individual. I cannot find the clause; the NSA states that it uses DFAR and FAR for its acquisitions, but I cannot find it anywhere. The only Section 352 I've identified is for Health & Human Services, and that doesn't include this section. I'd like to provide the prime with an argument to take to the Government to remove the clause because of its inapplicability or, failing that, demonstrate that it's not a mandatory flow down. Complying with it will cost us considerably more than we bid on this relatively small task order. Any guidance you can provide will be greatly appreciated. Many thanks.
  8. FFP construction contract in SC. Competitive IFB, SDVOSB set-aside. Question on behalf of the prime contractor. The government is required to promptly reimburse a contractor the cost of performance and payment bond premiums per FAR 52.232-5(g). Bonding companies generally require prime contractors also obtain bonds from subcontractors for subcontracts over a certain threshold (usually $250k for small-midsize companies). The prime contractor has several instances of where the subcontractor bond premium was reimbursed by the government along with the prime’s own bond premium AND several instances (from the same agency no less) where the pay application was denied on the basis of the subcontractor’s bond not being a government requirement. In my opinion, the subcontractor bond (required by the bonding company of the prime contractor) qualifies as “coinsurance” as stated in FAR 52.232-5(g) because without the subcontractor bond, the bond premium rate applied to the prime (for the entire value of the contract) would have been higher. Is anyone aware of any case history or regulatory references that substantiate or refute my position? Thanks in advance.
  9. FFP Service Contract contains FAR 52,243-1 Alt I . Contract originally awarded competitively. Contract mod issued to extend period of performance for specific task activities within the overall contract period of performance. (not an extension of the contract period of performance.) Requires certified cost pricing data. Contractor submitted proposal 6 months ago with not to exceed amount. Due to reasons which are not clear to me, the mod / propopsal was not acted upon so six months of performance has now been incurred. Requested cost anlaysis and the analyst insists since 6 months of performance has ensued that the contractor must submit actual costs for the work already performed under the change order. Is this correct if it is a FFP contract? I see FAR 43.204 requires CO to make sure cost analysis is performed if required under FAR 15.404-1© and while the various cost anlaysis techniques refer to verifying projected costs based on historical trend and comparison of costs proposed with actual cost previously incurred, is there no difference when it's a FFP contract? Does the contractor have to provide the requested actual costs for the first six months performance of the undeifinitzed contract mod proposal?
  10. Gov Change of CO and ACO

    I am a contractor working on a FFP electrical construction project for the Navy in SE Georgia. The contracting office is planning to change the CO and ACO. I know this is fully within their right, but the CO and ACO they are planning are individuals that I have worked with before. They are abusive, don’t act in good-faith, and would basically be considered “high maintenance”. Do I, as the contractor, have any right to object to the change? Had these individuals been identified in these roles from the beginning, my price may have been different or I may not have bid the project in the first place.
  11. 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.
  12. FFP during shutdown

    My company has a FFP GOCO contract that was issued a stop-work order 10/1/2013 referencing FAR 42.1303. This regulation allows “top-work orders may be used, when appropriate, in any negotiated fixed-price or cost-reimbursement supply, research and development, or service contract if work stoppage may be required for reasons such as advancement in the state-of-the-art, production or engineering breakthroughs, or realignment of programs.” Work stoppage in this case was not for any of the allowed conditions cited in this regulation and doesn't relate to the type of work being performed. The contract includes FAR 52.242-15 which explicitly requires “The [stop-work] order shall be specifically identified as a stop-work order issued under this clause.” Since this requirement was not fulfilled, I interpret the stop-work order as invalid. My employees were told to leave the facility at noon on October 1. We received a notice to resume work on evening 10/22 and all workers were back at work 0600 10/23. All contract modifications before and after the shutdown have POP inclusive of the time the government was shutdown. All workers were told by me that the length of time of the shutdown was uncertain and that they should be prepared to return to work as soon as it was over. All workers were paid during this time. (A possible bit of relevant info is that the contract involves execution of tasks that assure the health and welfare of people on the installation as well as the environment and are required by state and federal laws. I called this to the attention of the KO prior to the shutdown and was told after the stop-work order that the KO would get back to me concerning the potential violation of these requirements. I believe this tied my hands with my employees since I did not know if they would be called back at a moments notice.) Since this is a FFP contract and my company worked all days the facility was open in October. Since the KO cannot change the rates of the FFP based upon changes in cost... Since the stop-work order was not valid... I submitted a normal invoice at the end of the month. This invoice was approved and then later rejected just prior to payment since "congress had not authorized funds." I immediately filed a REA for the full month's FFP labor amount in addition to costs associated with additional administrative and management tasks my company was forced to perform as a result of the shutdown. The REA was denied. An appeal was filed with the ASBCA. The total amount claimed is <$90K. From my perspective, this should be a slam dunk but the government has placed multiple attorneys on the case, they are requiring enormous volumes of discovery information, and they appear unwilling to negotiate in good faith. I suspect they are pushing their weight because I have limited financial resources and they think I am going to back down. All CPARS for the contract are "exceptional" across the board, my company can document millions of $ we have saved the government in performance of the contract, and government customers to this GOCO have written numerous letters applauding the service they receive so I don't believe there is a plan to get rid of us. My question is this...........am I missing some obvious reason why the government doesn't have to pay their bill? Is there some lessor known rule that allows the government to change FFP price due to some sovereign act?
  13. Is there such a thing as a FFP/O&A contract type? I need to try out the following logic and argument. A hypothetical company has a FFP prime contract for DoD aircraft operations and maintenance with a CPFF CLIN for engine overhaul. The engine overhauls for the last four years have been subcontracted out to Vendor A. To speed up turn around on the subject contract, Vendor B (a separate, designated, overhaul facility for Vendor A) is being sole/source selected to alleviate Vendor A’s capacity constraints across contracts. The best sole/source justification for selecting Vendor B instead of incumbent Vendor A appears to be a simple application of 6.302-3( (iii) at the prime level to meet customer requirements for turn-around. Because the aircraft is sold commercially, these engine repairs are deemed to be commercial. However, neither Vendor A nor Vendor B is willing to commit to a FFP contract without a clause covering its O&A material cost. For each engine repair, material drives anywhere from 60% to 80% of the overhaul price. Vendor B has proposed 10% of its “estimated”, average, engine overhaul price as a flat labor charge and an additional 10% for mandatory supplies, kits, and tests. The additional 80% of its “estimated” price is based on actual material prices for services provided to other companies in the last two years. Vendor B has proposed the flat labor charge and mandatory supplies, kits, and tests as FFP; and has proposed the material charges as O&A (to be individually determined for each engine overhaul with no ceiling price.) Originally, the company wanted to describe its subcontracts with Vendor A as being T&M. Two seeming difficulties with this are FAR 12.207( (1) and FAR 16.601(d). The reason FAR 12.207( (1) seems problematic is that the company was not regularly soliciting more competition on its engine overhaul subcontracts after Vendor A became the established service provider. The reason FAR 16.601(d) seems problematic was that the company did not establish a ceiling price for each engine overhaul. Now, the hypothetical company wants to describe its proposed subcontract with Vendor B as being FFP due to an estimated 20% being fixed with Vendor B’s flat labor charge and mandatory supplies, kits, and test. The commerciality of the engine overhaul and the O&A estimate (not ceiling) is mentioned in the analysis. Is there any regulation similar to FAR 16.102( that would further support this commercial contract without running into difficulties due to FAR 16.301-3( and the 60%-80% O&A portion of the contract?
  14. Change Order Negotiation

    She is at it again!!! I have a change order negotiation scheduled in a couple of weeks to negotiate a change order to a FFP, SDVOSB set-aside, construction contract. My contracting officer is trying to dictate that I not bring anyone else to the negotiation including subcontractor representatives (even though they represent a majority of the scope of the change) and key project managers that have first-hand knowledge of the site conditions. I am confident that this move is an attempt to isolate, outnumber, and overwhelm me (they plan to have 6 people present including a SME and JAG rep.) and is far from operating in "good faith". Isn't it up to me who I have present at the negotiation? Please help me with some regulatory and/or FAR references that support my position (or prove me wrong with the same supporting the CO's position). Thanks
  15. Help! I am a prime contractor working on a (competitively bid, edwosb set-aside) FFP Air Force construction project in NW Florida. I am processing a change order and the government contracting officer is indicating that I will not be able to add overhead and profit markups on my subcontractor’s markups. I AM permitted to account for my additional labor, materials, and supervision hours (with markups), and normal OH and profit markup to the subcontractor’s direct cost, but NO OH or profit markup on the portion of my total subcontractor’s price that result from his OH and profit markup. These costs are a part of my subcontractor’s price and are my “direct cost” (as I read FAR 43.203( b )(2)). Further, there is no place on the AF Form 3052 to segregate these costs as subcontractor costs would be added as a direct cost in column 9. The subcontractor effort will probably be less than 70% of the change, but this isn’t relevant since FAR clauses 52.215-22 or 52.215-23 “Limitations on Pass-Through Charges” are NOT included in the contract and, as I understand them, are intended for cost reimbursable type contracts anyway. The contract does include standard limitations on subcontracting that apply to the total value of the contract (labor, as this is a construction project), not to a specific change order. Can anyone give me a definitive source that I can reference for this Contracting Officer confirming that a prime contractor’s overhead (and profit) markup on subcontracted efforts (based on total subcontract price) is allowable? Of course, I am willing to negotiate in good faith if they return the same. If it helps, like most small business, CAS is not applicable and we do not have separate G&A and Overhead pools, only one comprehensive overhead rate. Thanks
  16. Help! I am a prime contractor working on a (competitively bid, edwosb set-aside) FFP Air Force construction project in NW Florida. I am processing a change order and the government contracting officer is indicating that I will not be able to add overhead and profit markups on my subcontractor’s markups. I AM permitted to account for my additional labor, materials, and supervision hours (with markups), and normal OH and profit markup to the subcontractor’s direct cost, but NO OH or profit markup on the portion of my total subcontractor’s price that result from his OH and profit markup. These costs are a part of my subcontractor’s price and are my “direct cost” (as I read FAR 43.203( b )(2)). Further, there is no place on the AF Form 3052 to segregate these costs as subcontractor costs would be added as a direct cost in column 9. The subcontractor effort will probably be less than 70% of the change, but this isn’t relevant since FAR clauses 52.215-22 or 52.215-23 “Limitations on Pass-Through Charges” are NOT included in the contract and, as I understand them, are intended for cost reimbursable type contracts anyway. The contract does include standard limitations on subcontracting that apply to the total value of the contract (labor, as this is a construction project), not to a specific change order. Can anyone give me a definitive source that I can reference for this Contracting Officer confirming that a prime contractor’s overhead (and profit) markup on subcontracted efforts (based on total subcontract price) is allowable? Of course, I am willing to negotiate in good faith if they return the same. If it helps, like most small business, CAS is not applicable and we do not have separate G&A and Overhead pools, only one comprehensive overhead rate. Thanks
  17. I am ready to close out a firm fixed price contract that was incrementally funded for the five-year contract period. The contract was modified several times to add funds to the contract. Do these modifications that incrementally fund the contract change the firm fixed prices for the two contract line items? The contractor has billed higher prices based on these modifications.
  18. We recently had an assistance visit from GSA, during which time the auditor flagged one of our contracts for overpayment. It is a FFP contract, base + 3, under a GSA schedule. The contract has a 3% escalation for each option year - unfortunately our GSA schedule has no escalation. We typically discount off our published rate but in this instance did not. Neither our contract nor our invoices contain any rate or hour information - we were simply funded a total FFP and invoice equal monthly installments. The only place that indicates any rate information is a cost buld-up found in the file (contract started 4 years ago and no one who worked on it is currently at the company), no indication that this was the final cost proposal submitted to the government. The contract CO or COR has never flagged and all invoices have been paid. A large portion of the work is being performed by a subcontractor. Based on the above, do we have an argument against the overcharge claim? We would be looking at paying back several hundred thousand dollars as we are in the last year of the contract. We do have a clause in our subcontract that would allow us to recoup any money repaid to the government, but I would assume the sub will fight us on it. A related question would be how difficult is it to mod our GSA schedule prior to any option period? Could we add a rate escalation clause and other labor categories in the middle of the contract? If so how long does that process typically take? And could any rate escalation be retroactively applied? Thank you for your help in advance, sorry if any of these are basic questions as I am new to contracting
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