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Tax obligation language in a contractors employee agreements are somewhat frightening so much so real fears of detainment or imprisonment could ocurr to a contractor in a host nation. Is this legal, or ethical for govenment to allow, if they knew? Its possible under a FFP labor CLIN, the contractor bid in a manner where any new hires on the program would be required to be responsible for host nation taxes, but the government may not necessarily know this, and if the government was aware, it seems they (U.S. Govt.) may be the target of the host nation government to come after if the host nation believes the contractor did not remit all taxes they believed were due to them. Working in Africa, Iraq, Afghanistan, is tough enough, but if a contractor requires their employees to be liable for some unknown amounts and sums of money, with no regulatory to it, shouldn't the government be aware, and not allow that?

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Guest Vern Edwards

Don't worry about government awareness, dude. Even as I write the government is getting a warrant to force Bob to identify you. Then they'll arrest you on some mopery charge and flip through your cell phone. Extradition to Iraq or Afghanistan will soon be pending.

If I were you I'd head for eastern Ukraine, brother.

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Yes host countries can tax contract hires working in thier country. Depends on the status of forces agreement or other diplomatic documents. In some cases they require the contractor to withhold and pay the taxes to them just like our IRS does. And yes they have sometimes changed the rules in the middle of your tour of duty. Unfortunately tax law is very complicated and it depends on the country, the specific tax law, the terms of the contract and specific circumstances as to if the funds can be reimbursed to make you whole. Corporate attorneys have to work with the Government attorneys to determine if these taxes are reimbursable to the company or not.

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  • 2 weeks later...

Boof nailed it. For reference, here is an example of a pertinent clause:

H.x EMPLOYMENT AGREEMENTS

The Contractor shall, within 30 days of contract award, furnish to the Government a copy of each type of employment agreement to be used by the Contractor for work performed under this contract and any subsequent revisions and updates thereto. Employment agreements are subject to Government approval and must meet requirements of (redacted host country) law.

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In order to exercise approval authority, obviously, the US contracting agency would have to know the Host country labor laws or have access to Host country legal counsel when using Charlie's clause. Am I correct, Charlie?

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Boof nailed it. For reference, here is an example of a pertinent clause:

H.x EMPLOYMENT AGREEMENTS

The Contractor shall, within 30 days of contract award, furnish to the Government a copy of each type of employment agreement to be used by the Contractor for work performed under this contract and any subsequent revisions and updates thereto. Employment agreements are subject to Government approval and must meet requirements of (redacted host country) law.

Cajuncharlie,

I assume some contracting office is using that clause as a matter of practice. If so, what authorizes the Government to collect the information described? Which of the OMB Control Numbers listed at FAR 1.106 applies?

Also, the clause would arguably impose a significant administrative burden on contractors. Was it published for comment in the Federal Register in accordance with FAR 1.301( b )?

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Guest Vern Edwards

Don:

Are you sure that requesting a copy of a type of employment agreement constitutes "collection of information" as defined in 5 CFR 1320.3?

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I don't see why not. All sorts of requests for copies of this or that in FAR clauses are collections of information. For example, FAR 52.247-2 requires the contractor to provide a copy of an FHA authorization. That's a collection of information covered by OMB Control Number 9000-0053. FAR 52.215-20( a )(1) requires offerors to submit copies of documents to support a request for an exemption for cost or pricing data. That's covered under OMB Control Number 9000-0013. Requiring a contractor to send a letter (or e-mail) notifying the CO of bankruptcy under FAR 52.242-13 is a collection of information covered under OMB Control Number 9000-0108.

Look at the list of approved information collections at FAR 1.106 and you'll see that very minor things are technically "collections of information."

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For various reasons, I don't think that the OMB would overrule or override certain country to country agreements for acquisitions that are using that clause. Any contractor or contractor employee serves at the discretion of that host country and is subject to that country's laws and regulations. The contracts are not US funded, either. I won't elaborate any further.

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Guest Vern Edwards

Don:

Is requiring an invoice in order to get cost-reimbursement under FAR 52.216-7 a "collection of information" pursuant to the Paperwork Reduction Act and the definition in 5 CFR 1320.2?

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Don:

Is requiring an invoice in order to get cost-reimbursement under FAR 52.216-7 a "collection of information" pursuant to the Paperwork Reduction Act and the definition in 5 CFR 1320.2?

I would think that it would be, but it's not listed in the current inventory of approved information collections for the FAR. The only part of FAR 52.216-7 that has an OMB Control Number is for the submission of an indirect cost rate proposal (9000-0069).

The following all have OMB Control Numbers (meaning they are approved information collections):

Requests for progress payments under FAR 52.232-13 through -16 (OMB Control Number 9000-0010)

Requests for payments under FAR 52.232-1 through FAR 52.232-4, and FAR 52.232-6 through FAR 52.232-11 (OMB Control Number 9000-0070)

Requests for advance payments under FAR 52.232-12 (OMB Control Number 9000-0073)

I obtained all of my information from http://www.reginfo.gov/public/do/PRAMain.

I don't know why a request for reimbursement under FAR 52.216-7 would not require an OMB Control Number.

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  • 1 month later...

I think the answer is that implementation of the Paperwork Reduction Act is spotty, at best.

Given the PRA nightmare I am currently enduring, I couldn't resist using the above quote as a springboard for soliciting input.

I will try to include only relevant details, but can provide more background if necessary.

Issue being disputed is the interaction of Government employees with State and Local law enforcement end users attempting to collect/clarify future system requirements. To ensure PRA is squarely in this conversation, assume the desired collection method would include identical questions to 10 or more individuals. Further assume that the Government currently has a plan is to solidify the requirements set and then solicit proposals utilizing FAR 15 procedures for satisfaction of said requirements set.

Initial ruling from Government attorney (self-identified as not intimately familiar with the procurement process and the FAR) is PRA applies and interaction requires OMB approval before information can be collected.

I, of course, go to FAR 1.106 and find that the table denotes FAR 15.2 as being covered under OMB control number 9000-0037. I think to myself...we are good...FAR 15.201(a) encourages the exchange of information among interested parties from the earliest identification of a requirement and then goes on to define interested parties as "potential offerors, end users, Government acquisition and supporting personnel, and others involved in the conduct or outcome of the acquisition."

I believe I could of stopped there and relied upon 1.106, but was I interested in control number 9000-0037. Sparing you the research details, but the findings are as follows:

1.) OMB Control Number 9000-0037 is entitled "Presolicitation Notices" - FAR 15.201©(5) as everyone knows.

2) The support documentation of 9000-0037 lists FAR 15.201© as the "FAR Section affected"

3.) As previously noted... The table in FAR 1.106 denotes FAR 15.2 as being covered by Control Number 9000-0037.

I argued that FAR 1.106 necessarily trumps the "title" of a control and/or it's supporting documentation and that we could rely upon FAR 1.106. The attorney(s)...yes there is more than 1 now... are hesitant to accept this argument.

Final point for complete transparency! We spoke to the GSA rep responsible for Control Number 9000-0037 and she said that 9000-0037 was addressing "Presolicitation Notices", but nobody could answer why FAR 1.106 has FAR 15.2 and not FAR 15.201©(5) listed and why Presolicitation Notices are different than the other types of information exchange listed in 15.201©.

So...what is everyone’s thought on what type of information collection is approved under OMB Control number 9000-0037? FAR 15.2, FAR 15.201©, or FAR 15.201©(5)?

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targabrite,

According to the most recent request for extension to the approval of the information collection:

Presolicitation notices are used by the Government for several reasons, one of which is to aid prospective contractors in submitting proposals without undue expenditure of effort, time, and money. The Government also uses the presolicitation notices to control printing and mailing costs. The presolicitation notice response is used to determine the number of solicitation documents needed and to assure that interested offerors receive the solicitation documents. The responses are placed in the contract file and referred to when solicitation documents are ready for mailing. After mailing, the responses remain in the contract file and become a matter of record.

The clearance is for presolicitation notices (mentioned at FAR 14.205, FAR 15.201( c ), FAR 36.213-2)--not for all of FAR subpart 15.2 or all of the items listed at FAR 15.201( c ). You have to read the clearance request to determine what it covers--don't rely on the citations at FAR 1.106.

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Hey Don,

Thanks for the response. I am with you from what the control number documentation says... Still stracth my head from a couple perspectives.

1.) As you well know, the table in FAR 1.106 has citations at various levels within the regulation (Sub-part, Section, sub-section, etc.). I am thinking that clarity could best be achieved by including the precise citation if it is intended to be exclusive to Presolicitation Notices.

2.) Do you have any good thoughts on what makes presolicitation notices unique from a PRA viewpoint?

3.) In your opinion, Is it really the intention of PRA to "approve" the collection of information when the intended interaction is the collection/clarification of requirements between the Government and it's system end users? -- I recognize that this is a more fundamental question than how the PRA intersects with the FAR.

Thanks again,

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targabrite,

1. I agree. The table at FAR 1.106 is not reliable. Besides the imprecision of the citations, it is not kept up to date. It currently lists some OMB Control Numbers that have expired.

2. No.

3. The intent of the PRA is to reduce the administrative burden imposed by the Government on the public. The scope of the law is very broad and I wouldn't be surprised if it included the information collection that you described, even though I doubt that Congress considered that type of information collection.

If I were you, I would check to see if your agency already has an approved information collection that would encompass the information that you want. I don't think any of the information collections in the FAR would apply. Also, study 5 CFR part 1320, which implements the PRA, to make sure that it really does apply. Consider the types of things that do not meet the definition of "collection of information"--could you obtain the information you want using any of those methods?

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