RJH46 Posted April 18, 2012 Report Share Posted April 18, 2012 An Agency OIG is reviewing our contract on Buy American Act and Davis Bacon compliance. We do not feel we have done anything wrong yet we find we are spending a lot of time with the IG and providing them materials. Can we bill the Agency for the time or submit an REA. The Agency Contracting Officer agrees that the situation has become unreasonable and is willing to reimburse us for time spent. Any thoughts on this? Link to comment Share on other sites More sharing options...
here_2_help Posted April 18, 2012 Report Share Posted April 18, 2012 Assuming you are a contractor, the answer is "it depends". It depends on your disclosed or established practices, it depends on whether the affected employees normally direct charge, it depends on whether you want to upset your customer. In short, there is nothing in the regs that would prohibit you from doing so, unless the matter has ripened into a legal proceeding--in which case not allowable. Hope this helps. Link to comment Share on other sites More sharing options...
policyguy Posted April 18, 2012 Report Share Posted April 18, 2012 It's hard to respond since you don't have a lot of information such as contract type, T&Cs, type of funding/work e.g. Recovery Act, etc. But I would offer that you should review Vern's blog entry "Tips for the Clueless Would-Be Contractor" and especialy tip #14: "14. Make sure that you have the telephone number, email address, and street address of a good government contracts attorney and a good government contracts accountant. If you can't afford that kind of help, stay away from government contracts." The entire entry is here: http://www.wifcon.com/discussion/index.php?app=blog&module=display§ion=blog&blogid=2&showentry=1346 Not much of an answer but if you have an IG doing an audit/investigation it would be in your best interest to get professional, competent advice. Link to comment Share on other sites More sharing options...
Retreadfed Posted April 19, 2012 Report Share Posted April 19, 2012 An Agency OIG is reviewing our contract on Buy American Act and Davis Bacon compliance. We do not feel we have done anything wrong yet we find we are spending a lot of time with the IG and providing them materials. Can we bill the Agency for the time or submit an REA. The Agency Contracting Officer agrees that the situation has become unreasonable and is willing to reimburse us for time spent. Any thoughts on this? You are not clear on what the facts are. For example, you say an OIG is reviewing your contract. However, you did not say whether this review was for your compliance or how the agency was ensuring compliance. Also, you did not say what you meant by reviewing. Look at FAR 31.205-47 and see if the review falls within the ambit of that cost principle. On what basis would you request an REA? Generally, contractors can only receive an equitable adjustment for contractual acts of the government. Generally, sovereign acts of the government do not entitle contractors to an adjustment. As OIG "review" could very well be a sovereign act instead of a contractual act. Link to comment Share on other sites More sharing options...
here_2_help Posted April 19, 2012 Report Share Posted April 19, 2012 Retreadfed, "Generally, contractors can only receive an equitable adjustment for contractual acts of the government. Generally, sovereign acts of the government do not entitle contractors to an adjustment." Remember when GD sued the Feds for $26 million under the Federal Tort Claims Act for DCAA professional malpractice? (Sergeant York, DIVAD) They won, for a little bit (reversed on appeal on other grounds). Good times, good times. Hope they come again, real soon. H2H Link to comment Share on other sites More sharing options...
Retreadfed Posted April 19, 2012 Report Share Posted April 19, 2012 Retreadfed, "Generally, contractors can only receive an equitable adjustment for contractual acts of the government. Generally, sovereign acts of the government do not entitle contractors to an adjustment." Remember when GD sued the Feds for $26 million under the Federal Tort Claims Act for DCAA professional malpractice? (Sergeant York, DIVAD) They won, for a little bit (reversed on appeal on other grounds). Good times, good times. Hope they come again, real soon. H2H As you stated, the DIVADS litigation was under the FTCA. It was not a contract claim. The theory of that case was auditor malpractice based upon DCAA's misunderstanding of what a firm fixed price best efforts contract was. The case was reversed by the 9th Circuit because the decision to prosecute was made by DoJ. I see no correlation between an abortive attempt to sue under the FTCA and a contract claim based upon an IG review (whatever that means) of a contract. Link to comment Share on other sites More sharing options...
here_2_help Posted April 19, 2012 Report Share Posted April 19, 2012 Retreadfed, I'm sure you are correct. Just waxing nostalgic for a minute, based on your comment. H2H Link to comment Share on other sites More sharing options...
ji20874 Posted April 19, 2012 Report Share Posted April 19, 2012 You can read the General Dynamics circuit decision at http://www.pubklaw.com/rd/courts/96-55821.html. Link to comment Share on other sites More sharing options...
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