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mhcdef

Applicability and Source of 352.232-9016 Invoicing and Payment (MARCH 2015)

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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.

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I found a clause with that number and designation used in a supply purchase for Ft Meade, MD but the detailed invoice requirement are different (would seem to be obvious).

The clause that you refer to was in the subcontract package that you bid on, correct?

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Joel--thanks--I found exactly the same thing you did in a supply contracts, but they have earlier dates (2005 and 2011). This one is dated 2015. And, no, the clause was not in the package on which we bid, and per the prime, it wasn't in their original package either, but was included in the award document, which they've signed. We've not signed the subcontract yet.

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I have been trying to find NSA (Maryland Procurement Office)procurement regulations including their clauses. Does anyone know if they are available to the general public?

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On their website, the NSA states that they use FAR and DFAR for their procurement regulations. However, I'm trying to get access to ARC by registering the company. Once I do, I'll see what's there--though if anyone has any advice in the interim, I'd appreciate, as I feel that looking on their website may end a wild goose chase. I'm wondering if Fort Meade has stand alone regulations--but I haven't found those either. Thanks again for the help.

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It is obvious that MPO does not use FAR/DFARS exclusively as their contracts contain several contract clauses beginning with "3". It seems to me that the MPO procurement regs are not available to the general public, but MPO contractors may be able to get access to that information.

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That may be an option--I'll check internally to see if we have any MPO contracts in place and if not ask the prime to go back and check. I appreciate your help.

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mhcdef, I'm not sure what the recourse for the prime would be, if any, or what service you are providing. But if including the clause at this point will increase your cost, you should inform the prime of the additional estimated cost and decide if you can accept it or not.

If the objectionable portions of the clause aren't relative to the type of service you are providing and/or otherwise of real significance to the government, the prime might persuade the government to delete or modify it. I don't know if the prime can make the case that adding the clause after the solicitation is a change under the changes clause which will impact its price. But the prime should take this action before you sign a contract with it.

This is another LL for contractors. Read and compare the contract with the solicitation basis for pricing your contract before signing it. Apparently you, the sub, did. Maybe you can get the prime to pay for the legal advice that you both may need here. The problem for you may be that the prime will go to someone else or try to mKe you eat any additional cost rather than raise the issue with the government.

We don't know the nature or magnitude of the subcontract but an initial reading of the clause doesn't seem like it imposes a significant financial burden, since you should probably know the info anyway. Perhaps you don't want to share it with the government

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Guest Vern Edwards

Why is this an issue?

The OP says, she can't find the clause, but she knows what it says. She has read it. What she means is that she can't find the source behind the prime.

Why worry about the origins of the clause? Is it acceptable or is it not? If it's acceptable, why worry about the its source? If it's not acceptable, why worry about its source? If willing to accept it, but it will cost more, then ask for more money.

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The reason why I'm worrying about the source of the clause is I'm hoping to show that the Government inadvertently included it in the award document, giving the prime a reason to go back to the Government. . As it's fixed price contract, and bid as such, providing the data requested generally would be like lifting the curtain where the wizard is. I think providing that data on a fixed price contract changes the type of contract being provided. If the source of the clause states that it should only be used in cost plus or T&M contracts, as it seems to be, then I'd ask the prime to ask the Government to reconsider its applicability--but without that data, I can't demonstrate that its nonapplicable. Usually, the introduction will say when a clause should be used--and that's the language I'm looking for.

Vern, the issue with the added cost is that the subcontract is a longer term, low value subcontract--hence, the administrative burden increases relative to the bid cost of the work. If it were a higher priced, shorter term subcontract, there'd be less of an issue.

The prime is reluctant to go back to the Government, though we've asked them to do so. I was hoping for ammunition that would convince the Government that an error had been made in including the clause. We have advised the prime that there's a cost impact to us, and that's why we haven't signed the task order. However, for longer term relations, we'd prefer not to leave the prime holding the bag, so to speak.

Thanks for your insights. I've had no luck finding the clause so if anyone else has seen it and particularly the introductory portion, would be delighted to hear from you.

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There's no introductory portion in the specific clause, at least not the Aug. 2011 version. There is also no language that states it needs to be flowed down to subcontractors.

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When I ask the prime's CO how invoicing can be based on hours expended for a firm fixed price contract with deliverables I cannot get an answer. It has been suggested that if we use anyone outside of those labor categories that were in our proposal or expend more hours than were in our proposal, then the invoice will be "disallowed," as we'll "exceed the funding," which makes no sense, since it's a fixed price contract, not for a number of hours, but for a set deliverable.... still working the issue. MOPAS though is the origin of the regulations.

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Now we also know about ...never mind. Sheesh

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