MuchToLearn

I feel this thread is going in a few different directions here! I am not certain P.L. 96-517, the Bayh-Dole Act of 1980 is a dispositive answer here given the scope of work, but I am far from even beginning to understand the Act and its interplay between restrictions on publication vs. rights in IP. This would certainly be the simplest answer, though. I've got a tentative discussion established with our Legal department to help explore the issue. Joel, practically speaking, the Government will almost certainly not have any objection - the CO has (verbally!) assured me that there isn't a scenario he can envision for this task order where a request for publication would not be granted. However, the EI policies deem any reserved authority as to the final publishing decision to be unacceptable. My limited review of EI policies suggests this isn't uncommon - agency reviews appear to acceptable, and certain information can even be withheld, but the general rule is that nothing can ultimately stand in the way of publication. Though I'm not sure this answers the question, my tentative plan is to ask the CO for advanced consent to publish the results of the "research", subject to the agency's review of the documentation for agency-sensitive or restricted release information. Under no circumstances do I want to establish a bad precedent, but here it seems everyone is in agreement but we cannot memorialize that agreement in writing... -MtL

As a summary, the research is not delving into anything new - the requirement is to research the existing "State-of-the-Practice" using marketing and technology sources, and other publicly available resources. This includes gathering information through peer exchanges. The information will be distilled into two informational briefs / primer documents. MtL

I've provided the text of the clauses below. DISSEMINATION OF CONTRACT INFORMATION (OCT 1994) The Contractor shall not publish, permit to be published, or distribute for public consumption, any information, oral or written, concerning the results or conclusions made pursuant to the performance of this contract, without the prior written consent of the Contracting Officer. Two copies of any material proposed to be published or distributed shall be submitted to the Contracting Officer. (Clause appears in IDIQ) PROPRIETARY RIGHTS IN REPORTS All property rights, including publication rights, in progress reports and final reports produced by the Contractor in connection with this contract provided for hereunder shall rest in the Government. (Clause appears in both the IDIQ and Task Order terms) -MuchToLearn

Thanks everyone! I agree with Retreadfed that I am operating from that false premise. I know this basic principle, but for some reason didn't see it as dispositive here. The specific publication clause does not state it needs to be flowed down. Is the answer really that simple, though? The Government prohibits the Prime from publishing information without the CO's prior written consent. But because it is not required to be flowed down, subs are free to disregard? **EDIT: (provided the Prime either neglected to flow it down or elected not to do so?) I also agree with H2H concerning the general principle that (excluding required flowdowns) Primes need to tailor the business deal with the subs appropriate to the Prime-Sub relationship and the role of the Subcontractor during execution. However, for the same reason stated above, can Prime contract terms effectively be circumvented in a Subcontract? Assuming the answer is "Yes", I just can't see how it was the intended result (though it may be technically correct). -MuchToLearn

Knowledgeable Ones, I humbly beseech thee: Would greatly appreciate confirmation that my thought process is complete on this issue of flow down clauses and Educational Institutions, and I have not left any possible avenue of resolution unexplored. Thank you! Scenario: I work for a large Corporation. Our Subcontractor is an Educational Institution (EI). They have taken numerous exceptions to the Prime Contract terms and conditions, specifically around the rights to publication (permitting the EI to publish its research performed under the subcontract, whereas the terms currently require prior Government approval to publish) as well as asking that FAR Alternate clauses specific to Educational Institutions be incorporated in lieu of those in the Prime Contract, for example 52.227-14 Alt. IV. We had requested for the exceptions indicated by the EI in our task order proposal to the Government, but the Governmetn declined to grant these exceptions on the grounds that the Government lacked privity of contract with the sub and we were asked to revise our proposal to remove these exceptions. Conclusion: After research, I conclude that the Government is correct in its assessment. Government cannot add terms to the Prime Contract that do not apply to its business arrangement with the Prime Contractor. Similarly, we cannot flow down terms to the EI's Subcontract that do not exist in our Prime Contract, nor could we add terms that would contradict or conflict with those in our Prime Contract. This leaves us with the option of either pressing the EI to accept the terms of the Prime Contract, or abandoning the subcontract relationship. (For what it is worth, the Government client indicated to me in a phone call on this matter that in the Government's experience EI Primes had objected to restrictions on publication requiring Government consent, but in every case they ultimately agreed to the Government's terms on publication. In those cases presumably the alternate FAR clauses were not an issue). Coming to that conclusion does leave me at somewhat of a loss. If the above is correct, it would appear to make EI subcontracting very problematic where the Prime is not an EI. I am not intimately familiar with the differences in the FAR clauses for EIs, but I assume they exist because there is difficulty applying the non-EI clauses to the unique circumstances of an EI (which is what we are being required to do under the circumstances). I'm sure these are not new questions, but I would appreciate any thoughts on the matter! Graciously, -MuchToLearn

Thank you everyone, this has been very enlightening and helpful. Two quick points - In my market, we have discussed the issue to the point where we would attempt / desire to propose profit on travel costs only when travel is a substantial cost component of the work. Everything said above rings true, but even then as a business we are willing to forego profit on travel except where it can have a significant impact on the bottom line. I don't know Vern, your name carries a good bit of weight in my neck of the woods...

H2H - Fair point, I should clarify. The question has arisen in the context of FFP task order solicitations that provide for "cost reimbursable" travel CLINs (so perhaps it is accurate to call them hybrid?). So, we are not required to propose travel costs as part of the proposed fixed price. Occasionally we will be given a plug number to propose for the travel figure, but in 85% cases we have the discretion to propose an estimated travel budget we believe will be necessary to complete the tasks. For CPFF, to be honest I'm not sure. My instinct is to agree with you outright, since otherwise since any profit would be encompassed in the "fixed fee". I haven't pushed that issue for this reason. I would think it would be possible to set up a task order where the labor portion is CPFF, but the travel component is simply "cost reimbursable", the advantage being the Contractor could propose or the Government could negotiate a lesser fee % on the travel portion (if the addition of fee is not precluded by the terms). We are only just starting to see CPFF task orders under my watch and I believe the previous practice was to exclude travel from any fee/profit calculation due to the cited language. -MuchToLearn

Hah! I like it. Thank you Vern. -MuchToLearn

Hello All! I have read enough of the posts on this forum to know I dare not ask whether one can apply G&A or profit when invoicing for travel on a cost reimbursable CLIN. A crude summary would be that "in absence of a prohibition within the terms of the contract, G&A (or profit) may be proposed to be added to cost reimbursable CLINs consistent with the contractor's disclosed accounting practices. In such a case, the amounts are a matter of negotiation between the parties." I work for a Government contractor, and I manage a contract that, at the IDIQ level, states as follows with regard to travel: "Travel and Per Diem authorized under CPFF and Fixed Price Task Orders under this contract shall be reimbursed in accordance with the Government Travel Regulations currently in effect. Travel requirements under this contract shall be met using the most economical form of transportation available. If economy class transportation is not available, the request for payment voucher must be submitted with justification for use of higher class travel indicating dates, times, and flight numbers. All travel shall be scheduled sufficiently in advance to take advantage of offered discount rates, unless authorized by the Contracting Officer. All travel shall be reimbursed at cost." (Emphasis in original) My supervisor has advised that this paragraph does not prohibit adding profit to travel (I understand that G&A is a "cost" and therefore can be reimbursed, so it is not at issue). She asserts that the fact that "all travel shall be reimbursed a cost" merely answers the question of when/how the contractor can invoice travel: the Contractor bills for travel as it incurs the cost. Further, where adding profit to travel is prohibited, such prohibition is clearly stated. I do agree with her that some contracts are quite clear that profit may not be added to travel costs. I'm not sure I agree with the rest. In any case, I want to pose a question to the Contracting Officer advising that we cannot find anything in the contract that would preclude proposing profit to be added to reimbursed travel costs, and I want to be certain we have an argument that passes muster. Executive Summary - Without more, does the phrase "All travel shall be reimbursed at cost" settle the question as to whether profit may be proposed to be added to reimbursed travel costs (subject to negotiation between the parties)?" I humbly welcome all thoughts, as always. -MuchToLearn

wvanpup - Can I say it is "based on a true story?" I also consider it an academic question because my organization has already decided it refers to, or at least covers , a subcontracting arrangement and we are proceeding accordingly. I asked the question to the law department and my direct supervisor (both with vastly more experience than I have), and while I didn't get an opportunity to fully explain my position, it appeared for both of them that it wasn't even a question as to whether it covered a subcontract scenario. This was an inherited agreement for me, so I cannot speak to what occurred or what did not occur prior to execution. Naturally, the questions are coming up near the end of the term of the agreement. -MuchToLearn

Thanks everyone. Really appreciate your insights. If this goes anywhere on my end, I'll report back. -MuchToLearn

ji20874, When I stated "I understand the intent was likely to precisely address a subcontract scenario", I came to that conclusion via your #2 - in other words, what else could it possibly be referring to? The question still remains why it is a plausible (even a likely) reason this refers to a subcontract arrangement, because it is still unclear why that would make sense given the concept of a contract. My original question was born out of sheer curiosity, and I appreciate both Vern and ji20874's thoughts. Something came to me this morning...could the indirect contract language possibly refer to a situation where a wholly owned subsidiary or some kind middle entity contracts with the Government, but for all practical purposes that entity is controlled by the hypothetical firm. Haven't flushed this out yet, but this at least makes more sense to me than insinuating that a subcontractor could enter into an indirect contract with a Government end-client.

Vern, I couldn't agree more. I have no idea.

All, I have a Contract law hypothetical: A subcontract indicates the subcontractor covenants and agrees that "for a period of 6 months after the term of the subcontract, the subcontractor will not, either directly or indirectly, enter into a contract with End Client X for services Y and Z". The question: Could a company bound by this clause enter into a subcontract with a Prime that is performing services Y and Z for Agency X? In a Prime-Sub relationship, the sub has no privity of contract with the end-customer...the subcontract relationship is entirely between the Prime and the Sub. There is no contractual relationship between the Sub and the end-customer. To me, the restrictive language reads that one only violates the clause if the result is a contract with Agency X (whether that contract be direct, or somehow "indirect") for services Y and Z. My thought is that a Sub does not violate the clause because it is not entering into *any* contract with Agency X: there is no contractual relationship of any kind between Sub and Agency X. For the sake of discussion, I request that any other legalities surrounding enforceability of non-compete clauses in general be put aside - I'm really just bothered by the "indirect contract" language. I understand the intent was likely to precisely address a subcontract scenario, but based on the limited research I've done I can't seem to find any acknowledgement that an "indirect contract" is a legally recognized concept. Thanks in advance, -MuchToLearn

1. No. 2. (a) (monthly invoice for actual labor costs + burdens and fee) -MuchToLearn