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Found 12 results

  1. Does anyone here use the weighted guidelines to evaluate the reasonableness of a subcontractor's fee? Would that be appropriate? This a firm-fixed price subcontract.
  2. Under FAR Clause 52.222-11 - Subcontracts (Labor Standards) , does the actual reporting requirements stop at the Prime, or at the contracting officer? Fixed Price Construction IDIQ. All contractors/subcontractors are SB. As an example: Prime uses one subcontractor. The subcontractor (acts like a prime and) subcontracts all of the actual work. The Prime does not interpret 52.222-11 to mean that all of the document generation requirements under this clause get sent to the CO; rather, submittals like Payroll, Form 1413, Apprentice Certifications and such stop at the Prime. Prime believes they only need to submit said documents on the first tier subcontractor. Initially I read the clause and disagreed; it seemed an easy way around Federal labor laws if this were the case. After reading through para (d)(1) and (d)(2) of the clause a few more times, what seemed clear at first no longer seems so. Para (d)(2) states that the Contractor shall deliver an updated 1413 for additional subcontracts, which seems to imply that additional lower tier subcontractors do not generate a new 1413 -they just get added onto the current one. After thinking about this some more, I think it's a poorly worded and confusing clause. I think the intent may be that a subcontractor should read (d)(1) as if he were the Contractor being referred to in the clause, and therefore the requirements apply to himself/herself as well. I want to say that in (d)(2), any subsequently awarded lower tier subcontracts get updated on the 1413 for that subcontractor. In turn, the lower tier subcontractors have to repeat this process until no more subcontracts occur. Can anyone weigh in?
  3. My company produces a commercial item that it will supply to the DoD through its Prime Contractor as a first tier sub. As, we will make slight modifications to our item for the purposes of integration into the Prime's product for sale to the government, the Prime Contractor wants to negotiate rights to technical data, specifically asking for exclusivity "on behalf of the government" that we will not further market the item. I have asked the Prime if the government has specifically requested exclusivity. I didn't get a straight answer (a we want to protect the govts rights) but I assume as I did when the request was made that the answer is no. Prime confirmed that the modification is being funded under the USG contract and not by their own R&D. It seems to me that the push for exclusivity is coming from the Prime and not from the government. Either way I have a few questions: 1. If I'm understanding things correctly, we can grant to the government standard commercial rights under DFARS 252.227-7015 for our existing IP and government purpose rights under 252.227-7013. Is my assumption correct? 2. I believe that as the modification is minor, does not significantly alter the nongovernmental function or essential physical characteristic of the item or change the purpose of the process and therefore does not affect the commerciality of our product? 3. If commerciality is in tact can I assert -7015 rights for the entire product? (I don't think so. But if we can...) 4. We will grant the prime a limited use license for fulfillment of the requirements under the existing government contract. Any suggestions on language for this clause? 5. Are we required to assert data rights for our commercial IP? I'm not finding a requirement to do so but think it may be a good idea to eliminate confusion. Thoughts?
  4. Hi All, Long time reader, first time poster. I'm doing evaluation on a competitive FAR 15 cost-reimbursement contract. Most of the primes have submitted subs providing full cost and pricing detail as required in FAR 15 to determine fair and reasonableness. However, some primes, for some subs, have only submitted T&M loaded rates or in some cases only one amount with no LOE to back it up for what they claim are their commercial subs. During discussions, where additional material was requested in order to determine fair and reasonableness, they claimed that because these subs are proposed as commercial subcontractors, it is not required and pointed to 52.244-6. I've dealt with commercial sub approval at the post-award stage before, but not at the pre-award. Any suggestions on material I should be requesting and am allowed to request in order to determine fair and reasonable cost? Its a very detailed requirement with different approaches, so price analysis is not really applicable.
  5. I'm looking for a/the case name or number that said words to the effect "as between a prime and subcontractor (in furtherance of a government contract) the concept of a clause self deleting did not apply as the contracting parties were private / commercial entities and the subcontract is a commercial contract subject to interpretation under state law concepts." I recall reading in the forums about a year or so ago that there was a court case that indicated a subcontractor, a small business, agreed (unknowingly) to be bound by CAS provisions because the subcontractor accepted the CAS flowdowns in its subcontract with the prime. Subcontractor argued (unsuccessfully) that the CAS clause(s) were self deleting and also, even if the subcontractor agreed to comply with CAS, it was nonetheless exempt from CAS as it was a small business. Does this case ring a bell? I searched the forums but could not find the original posting. I'm interested if anyone recalls the actual case name or number or additional facts that may lead me to that case or any other case that propounds (either way) the concept of self deleting clause(s) in a subcontract (in furtherance of a government contract). Any help would be appreciated. Thank you.
  6. Contract Type: Design Build - FFP Scenario: First tier subcontractor to prime contractor refuses to submit its invoices in the schedule of values format required by the prime contract. Background: 1. The prime contractor incorporated the schedule of values invoicing requirement into the subcontract; subcontractor concurred and signed subcontract. 2. Subcontractor attempts to "front load" charges into its invoices and demands prime contractor pay subcontractor well in advance of what prime can bill government for said charges under the required schedule of values. 3. Prime contractor contacts subcontractor to discuss on multiple occasions; in each discussion, subcontractor advises it will not comply with required invoice format. 4. Prime contractor notifies the KO of the situation and its intent to withhold subcontractor payment in accordance with the procedures set forth in 52.232-27(e). 5. Prime contractor issues a formal subcontractor withholding notice conforming to the requirements of 52.232-27(g). 6. In reply, subcontractor notifies prime contractor to "pound sand" and continues in its refusal to submit invoices in the schedule of values format required. 7. Prime contractor notifies KO weekly of status of situation and continues (on a nearly daily basis) in its attempts to get the subcontractor to submit a proper invoice. Question: Is the prime contractor required to submit subsequent subcontractor withholding notices until the situation is resolved or will prime's actions in Item 7 above suffice? If additional notices are required, is there a specific frequency required?
  7. Working in R&D contracting, we sometimes encounter a situation where a subcontractor does not want to submit their business proposal through the prime, for proprietary reasons. Are we obligated to accommodate this, or are we able to require the subcontractor to submit their business proposal through the prime? We are developing a system to receive proposals electronically (no more boxes of paper copies all over people's offices) and I am trying to determine if this is an option the subcontractor is entitled to (and therefore if we have to build the system to accommodate this option). I can't find an example of when this has come up. Thank you!
  8. Audit of Proposal

    My company has completed negotiations with the prime on a govt contract. We have a confirmation of negotiations memorandum and my company has signed and submitted to the prime the Certificate of current Costs & pricing. The subcontract remains undefinitized as the prime says they're waiting for an audit by the government. It's my understanding that the government will not audit an already negotiated subcontract because it's of no benefit to them at that point. Prime also wants a reopener. Anyone ever have a similar situation? Would the govt audit an already negotiated agreement?
  9. Extent of CPSR Review

    Do you know of any defense contractor(s) that have excluded any interorganizational transfers from the population submitted to DCMA for CPSR review? If so, did they go so far as to exclude interorganizational transfers at price for commercial items? Do you think it is reasonable for a defense contractor to interpret FAR 44.101 and FAR 44.303 to allow for exclusion of any (or all) interorganizational transfers (at price or cost)?
  10. What would you say to a defense contractor who wanted to take the following approach in preparing a sole-source FFP proposal subject to TINA for a DoD customer? Scenario: KTR-A wants to include its sister company KTR-B in a sole-source FFP acquisition by a DoD customer. KTR-A prepares a SOW for a NON-commercial item and issues a RFP to KTR-B and a number of qualified, responsible competitors. It turns out that KTR-B beats everyone else out on performance, schedule, and price (including proposed profit). KTR-A negotiates a "subcontract" [really an inter-organizational transfer (IOT) at price] with KTR-B and includes KTR-B's certified cost or pricing data as part of KTR-A's submission to the DoD customer. KTR-A does not submit a cost or price analysis (PNM) for KTR-B's proposal since it is does not meet the definition of a "subcontract" in FAR 15.401 and would be categorized as a "make item" for FAR 15.407-2. KTR-A discloses in its proposal the profit rate negotiated with KTR-B and states that the subcontract was awarded based on adequate competition. Questions: 1. Does a DCAA auditor have any clear regulatory basis to question KTR-B's proposed profit and KTR-A's proposed profit on top of KTR-B's proposed profit? 2. Does a DCAA auditor have any clear regulatory basis to unsupport KTR-B's proposed profit until being provided additional information on the subcontract competition? 3. Do you consider FAR Part 44 to positively define a subcontract in its normative sense and FAR Part 31 to positively define an IOT in its normative sense? 4. Would you say that a CPSR reviewer should only look at any make or buy documentation for this particular IOT and not expect a PNM to have been written?
  11. My company was awarded an IDIQ from the Gov't as part of a multiple prime IDIQ vehicle. We are currently weighing whether to issue our subcontractors a BOA or an IDIQ. Since each task order at the prime level (there are multiple primes) will be competed and our team will need to stay very flexible in order to win, I believe that a BOA would probably be more appropriate than an IDIQ Subcontract. We envision that labor rates within the established labor categories for each task order will need to be different depending on the SOW and the price to win. If we used an IDIQ in lieu of a BOA then any pricing that we established (labor rates) would most likely need to be discounted once the task orders are released/competed (so I don't think an IDIQ would be as appropriate). Another reason I don't believe the IDIQ would be appropriate is that my company would not be able to promise a minimum and would not do a very good job in estimating a maximum subcontract value. In order to stay as flexible as possible, I believe a BOA would be the right choice for my company to issue to subcontractors but I am seeking your help in determining possible pitfalls associated with BOAs (vs using an IDIQ subcontract). I understand that a BOA is not a contract and the subcontractor is under no legal obligation to accept a task order (or purchase order if that the preferred terminology when speaking about a BOA). But once my company issues a TO and the subcontractor accepts (either formally in writing or by commencing work), then they do have an obligation to complete that work in accordance with the terms and conditions of the BOA, incorporated docs and any instructions included in the TO. Both vehicles are used to streamline orders however I believe there is much more in setting up an IDIQ than a BOA because the IDIQ would contain pricing to be evaluated and a ceiling value which would set off many threshold related administrative work (FFATA cert, EEO, CAS, etc.). I realize that with a BOA, the administrative part would need to be completed with each TO award depending on the value of each award however I think this is a risk worth taking since we can't really predict how many task orders we will actually win or the values. I know that the values can be as low as 100k and as much as hundreds of millions. Does anyone have any experiences to share with respect to services based BOAs in lieu of IDIQs? Any concerns one might have with putting a BOA in place with their subs in this scenario? Oh yeah, workshare to the subs is not an issue in our situation as my company did not make any promises to any of the subs. From DAU website (https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=22&cgiQuestionID=18517): The key distinction in their application is that Government is in a position where it can commit itself to a minimum quantity when awarding an IDIQ contract, whereas the Government may not be able to commit to a minimum quantity when setting up a BOA. Further, BOAs are commonly used to streamline ordering when using simplified acquisition procedures. IDIQ contracts are commonly used to expedite the ordering process for requirements of any dollar value. The ceiling for some IDIQ contracts is in the billions, with individual orders under those contracts in the hundreds of millions. Just curious - Why are BOAs commonly used when using simplified acquisition procedures as stated above...why would there be a limit on the dollar value of a BOA?
  12. A hypothetical GSI order requires six widgets to build. Our widget supplier receives a delegation for GSI on the widgets. We build this equipment all year long and end up buying over 500 widgets a year. Our supplier offers a huge discount if we place an order for 500 vice mulitple orders every week for six, twelve, etc. Can we buy 500 widgets under a PO that requires six and transfer the remaining 494 to stock as parts that have been through GSI? Is there an alternative method that allows us to stock parts that require source inspection? The Government saves tremendously on cost and schedule.
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