Looking for Thoughts Posted March 8, 2017 Author Report Share Posted March 8, 2017 6 minutes ago, Vern Edwards said: No. It does not help explain. What does "parcels out" mean? What's a "teammate"? What kind of legal relationship exists or is created between the prime and the firm you call a "teammate"? If by "parcels out" you mean awarding a subcontract or issuing an order to the teammate, then parceling out creates a contractual relationship and the prime has to get cost or pricing data from the "teammate" if FAR 52.215-12 is in the prime contract. These kinds of questions must be answered through formal definition and legal analysis. If you think in terms like "parcels out" and "teammates," you can't get to an answer until your translate them into professional/regulatory language. Looking for Thoughts, are you new to government contracting? Vern- No, not at all new to this. Sorry for use of colloquial terms. In this case "parceling out" means awarding work under the prime award to the various companies with whom the Prime has BOA's (without guaranteed min or max). Teammates are those subs who have BOA's with labor rates identified. Again, I don't see any exception for CCPD but was hoping someone had run into this type of scenario. Best Regards- Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 8, 2017 Report Share Posted March 8, 2017 Looking: Is FAR 52.215-12 in the prime contract? Link to comment Share on other sites More sharing options...
Retreadfed Posted March 8, 2017 Report Share Posted March 8, 2017 Navy, based on your posts, it appears that you think FAR 15.404-3 applies to contractors. Is that your belief, and if it is what is the basis for that belief? Link to comment Share on other sites More sharing options...
Looking for Thoughts Posted March 8, 2017 Author Report Share Posted March 8, 2017 Vern- Sure is otherwise this would not be any concern. Looking Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 8, 2017 Report Share Posted March 8, 2017 Looking: Okay. Well, the clause says what it says. I hope you're satisfied (if not happy) with the response. Unfortunately, if all you have is a BOA for rates, and if by BOA you mean the same thing as FAR 16.703, then you have to get certified cost or pricing data for both the labor rates and estimated hours each time you issue an order to a subcontractor. Vern Link to comment Share on other sites More sharing options...
Looking for Thoughts Posted March 9, 2017 Author Report Share Posted March 9, 2017 On 3/8/2017 at 8:36 AM, Looking for Thoughts said: So what do you all think? Just get a cert that says "none provided" in the proposal identification line? There will be no proposal from them. So, I will leave this with one last question. If the subcontractor will NOT be providing a proposal how does one comply with 52.215-12. Just a cert per the bolded above? Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 9, 2017 Report Share Posted March 9, 2017 2 hours ago, Looking for Thoughts said: Just a cert per the bolded above? No. You don't certify a proposal, and you surely don't certify nothing. You certify cost or pricing data submitted in accordance with the law and FAR 15.403-4. A proposal is not cost or pricing data, neither is no proposal. You appear to think that because you didn't get a proposal from the sub before you submitted your proposal to the government that you need not get certified cost or pricing data from the sub. That's wrong. You're confusing a proposal with certified cost or pricing data. They are not the same thing. Read the definition of certified cost or pricing data at FAR 2.101. At some point you must contract with the sub to do the work. You say that you have a "BOA" (basic ordering agreement) with your "team members." If by "BOA" you mean the kind of agreement described in FAR 16.703, then it is not a contract. So under what binding terms will the sub perform? At some point you must conclude a binding agreement with the sub on performance terms, including price (rates and hours), even if that means that you do nothing more than issue an order against the BOA that the sub accepts. Before you reach that agreement you must, in accordance with FAR 52.215-12, obtain certified cost or pricing data from the sub in support of the rates in the BOA and the hours that the contractor agrees to work. If you decide to abide by the rates in the BOA, then the sub must submit cost or pricing data in support of those rates. Certified cost or pricing data are not a proposal. They are information submitted in support of a proposal. Really, Looking... what I'm telling you is contract pricing 101. (Well, maybe 201.) You simply must study the rules closely. Link to comment Share on other sites More sharing options...
Navy_Contracting_4 Posted March 9, 2017 Report Share Posted March 9, 2017 (edited) On 3/8/2017 at 1:55 PM, Vern Edwards said: Navy, what do you mean "I don't think"? Do you know? Even if an IDIQ contract is in place between a prime and a subcontractor, the issuance of a T&M task order by the prime to the sub creates a newly priced subcontract, because hourly rates are only part of the equation, and the prime must obtain certified cost or pricing data from the subcontractor for the completion of the pricing. The same would not be true of a delivery order for a fixed-price item of supply, which is already fully priced. Vern, Well, I obviously didn't "know," as you have explained why I was wrong, but since the order would be FFP., it would likely be FFP level-of-effort, in which case, wouldn't it be comparable to ordering supplies at set prices? Edited March 9, 2017 by Navy_Contracting_4 correcting typos Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 10, 2017 Report Share Posted March 10, 2017 Navy: It boils down to this: the prime contractor promised the Government that before it awards "any" subcontract that meets the criteria in 15.403-4 and for which no exception applies, it will get certified cost or pricing data from the prospective sub. Period. If Looking must award a subcontract for the task order, then he must get certified cost or pricing data. It makes no difference that the sub did not submit a proposal for the work. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 10, 2017 Report Share Posted March 10, 2017 Deleted due to irremediable formatting issues. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 10, 2017 Report Share Posted March 10, 2017 13 hours ago, Navy_Contracting_4 said: Since the order would be FFP., it would likely be FFP level-of-effort, in which case, wouldn't it be comparable to ordering supplies at set prices? Navy: It wouldn't matter, because Looking has only a BOA with his "teammates" about rates. A BOA like the ones described in FAR 16.703 is not a contract. In order to bind one the teammates to perform under the task order from the government, Looking would have to issue an order against the BOA, and a teammate would have to accept. In other words, he would have to award a subcontract. Under FAR 52.215-12 he must get certified cost or pricing data from the teammate before awarding a subcontract. Link to comment Share on other sites More sharing options...
Navy_Contracting_4 Posted March 13, 2017 Report Share Posted March 13, 2017 On 3/10/2017 at 8:29 AM, Vern Edwards said: Navy: It wouldn't matter, because Looking has only a BOA with his "teammates" about rates. A BOA like the ones described in FAR 16.703 is not a contract. In order to bind one the teammates to perform under the task order from the government, Looking would have to issue an order against the BOA, and a teammate would have to accept. In other words, he would have to award a subcontract. Under FAR 52.215-12 he must get certified cost or pricing data from the teammate before awarding a subcontract. Vern, Yes, I understand about BOAs and how they differ from subcontracts. That's why I told Looking (see my post from Wednesday at 11:08 AM) that in his scenario, certified cost or pricing data would be required. In the post for which you took me to task, I postulated an alternative scenario – one in which there was a binding subcontract not a BOA – and suggested that in that scenario, cost or pricing data would not be required in conjunction with issuing orders. Do you think otherwise? If so, why? Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 13, 2017 Report Share Posted March 13, 2017 19 hours ago, Navy_Contracting_4 said: In the post for which you took me to task, I postulated an alternative scenario – one in which there was a binding subcontract not a BOA – and suggested that in that scenario, cost or pricing data would not be required in conjunction with issuing orders. Do you think otherwise? If so, why? Navy: I don't recall taking you to task. You said you thought something and I asked whether you thought or knew. Do you think that's taking you to task? Really? In any case, I addressed the above question six days ago, on 3/7/17 at 3:31pm, as follows: Quote If, after being awarded a task order, the prime is going to award a subcontract for performance of part of that task order, and if the subcontract will exceed the threshold, and if no exception applies, then the prime must obtain certified cost or pricing data from the sub before awarding the subcontract. If the prime already has a subcontract for that work and obtained certified cost or pricing data prior to the subcontract award, and will not award a new subcontract for the task, then the prime need not get certified cost or pricing data from the sub again before putting the sub to work. I then added the following on 3/8/17 at 6:45am: Quote Even if an IDIQ contract is in place between a prime and a subcontractor, the issuance of a T&M task order by the prime to the sub creates a newly priced subcontract, because hourly rates are only part of the equation, and the prime must obtain certified cost or pricing data from the subcontractor for the completion of the pricing. The same would not be true of a delivery order for a fixed-price item of supply, which is already fully priced. I think that's a good theory, but I don't know that it's valid. An order against an IDIQ contract is a contract as defined by FAR 2.101. (See Don Mansfield's Blog, DAR Council Interprets "Contract" to Include Task and Delivery Orders, March 10, 2011.) On the same basis, an order from a prime to a sub is a subcontract. FAR 15.403-4 and 52.215-12 are crystal clear. If the prime is going to award "any" subcontract valued in excess of the TINA threshold, and if none of the exceptions in 15.403-1 apply, then the prime must require the sub to submit certified cost or pricing data. Neither the policy statement nor the clause makes any exception whatsoever that is based on preexisting or concurrent subcontracts. You could argue with a contracting officer about this until you're blue in the face, but you would have a hard time arguing with the words of the clause. What would you tell a judge--that the clause, while clear, defies common sense? The judge might say, Yeah, well, you agreed to it. FAR 52.215-12 is not well-adapted to modern IDIQ contracts and subcontracts under which orders must be negotiated. On its face It requires the submission of certified cost or pricing data even in cases in which it seems to make no sense to do so. The FAR councils sidestepped the issue when they wrote the mealy-mouthed language of 16.505(b)(3), which boils down to: You guys figure it out. What we need is a clear policy for orders under IDIQ contracts and a cost or pricing data clause for IDIQ contracts that expresses that policy. What I say to contractors is: Avoid unnecessary risk. Err on the side of caution. Ask the CO who awarded the IDIQ contract for a written interpretation of the clause. Otherwise, comply with the plain language of your contract. What I believe is actually happening is that no one is thinking about the issue, except occasionally. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted March 14, 2017 Report Share Posted March 14, 2017 By the way, here are the statutes. First 10 U.S.C. § 2306a: Quote (a) Required cost or pricing data and certification.--(1) The head of an agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows... (C) An offeror for a subcontract (at any tier) of a contract under this chapter shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this section.... Second, 41 U.S.C. § 3504: Quote (a) When required.--The head of an executive agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows... (3) Offeror for subcontract.--An offeror for a subcontract (at any tier) of a contract under this division shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this chapter.... Link to comment Share on other sites More sharing options...
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