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  1. Today
  2. You should review use of rated order examples at 15 Code of Federal Regulations (CFR) Part 700.17 and discuss with Procurement. https://ecfr.io/Title-15/se15.2.700_117
  3. Yesterday
  4. I don't know who's telling you this but you shouldn't listen to them. Companies buy to inventory all the time. CAS 411 permits it. Disclosure Statements discuss it. Most of the major ERP systems essentially require it if you want to obtain the benefits of demand aggregation (e.g., volume pricing discounts). There is absolutely no requirement to "buy to contract" just because you have to flow-down DPAS ratings to subcontractors. Indeed, it's not just DPAS. There are a whole host of prime contract flow-down clauses that need to be managed. The job of your acquisition folks is to figure how how to flow-down what needs to be flowed-down. "Buying to contract" is the lazy and ill-informed approach to doing so. Suggest you tell your nay-sayers to figure it out. Trust me, it can be done.
  5. What have they told you and have they told you why this is correct?
  6. All, My company currently sells a defense related widget to two different branches of the US military (two different contracts). We will very likely pick up other military branches as customers. The contracts are now DPAS rated. From what my purchasing group tells me, now we have to change the way we purchase. Currently, we purchase our parts into our company's inventory instead of project inventory. The company inventory is "common" but only to this widget we make. As a simplified example, if I'm making 2 of my widgets and they take 10 screws a piece, I can cut one PO for 20 screws (flowing all my quality requirements). I can easily keep them in my asset inventory, build with them, then in the end, I send one of my widgets to contract 1 and the other to contract 2. I'm being told now we have to purchase material directly into the contract and not "common" inventory bucket for this widget. I'm being told I have to buy to the contract, so I'm doubling some of my indirect labor (2 REQs, 2 POs for 10 screws instead of 1 for 20), my warehouse might have to be bigger (certainly more complex to manage), and I have to be very careful not to build contract 2's widget with a screw purchased for contract 1...but in the end all my widgets are the same that I'm selling to my Government customers. Is there some way that would allow me to flow the DPAS rating that would allow me to keep my efficiencies and not add extra cost or complexity? Maybe something creative with the contract? Can I buy 20 screws on 1 PO for 2 different DP rated contracts for the same widget? Looking for ideas to keep my cost's and my customer's costs under control and make my life easier. 😉 Thanks in advance.
  7. To add to what ji wrote, with what kind of organization are the site agreements with and what do the "sites" do in regard to your contracts? What is the rationale for the opinion that the "sites" would not be considered subcontracts?
  8. (1) Is your organization the prime contractor? (2) Is the prime contract a FAR-based contract? [not a grant, not a cooperative agreement, not a contract under an authority other than the FAR] (3)(a) Is any site agreement solely between the prime contractor and the lower-tier provider? (3)(b) The Government is not a party to those agreements? (4)(a) Are the site agreements entered into because of and to accomplish the purpose of the prime contract? (4)(b) Or, do the site agreements exist without regard to the prime contract?
  9. Hello all - I am new to an organization that does social policy research (mostly with HHS and Dept. of Ed). They issue lower-tier agreements under federal contracts which they refer to as "site agreements." The organization's Legal department believes that these "sites" would not be considered subcontractors, and therefore the procurement and other regulations related to subcontractors would not apply. Is there another type of classification for partners under the FAR? I have tried to do research on my own, but have not found anything and would not even know where to start. Thanks in advance for any insight.
  10. There’s been a lot of discussion about “small businesses” lately, but there are still many misconceptions about how large “small businesses” can actually be! In this YouTube video, I breakdown how Uncle Sam decides which businesses are small: If you have questions about the size of your business, you can check out our many, MANY blog posts on the matter & this useful overview of affiliation, or give us a call! View the full article
  11. Last week
  12. I’ll just add personal services are largely a government wide issue. Unless an agency has a tight grip on service contracting and takes proactive steps to nip in the bud, it happens. This type comment isn’t unusual Few agencies are really prohibiting it the way they should. Lots of reasons and you mentioned some. In addition, it’s easy for the government to bring new people on through a contract. Compare that to government hiring that takes six months. A contractor employee not performing well can be told to leave a replacement is right behind them. Someone with needed new skills can be brought on quickly and those with now not wanted skills are told to leave. It’s hard to strictly say work is personal services. The FAR has criteria and some agencies use more detailed. But most work doesn’t fall into a yes/no area. As long as the SOW implies contractor employees get direction from their contractor supervisor, many COs see that as fine. Mot importantly agency managers don’t view it was wrong. The government gets better overall benefits and often prices are lower. Lately industry is cutting benefits while the governments remain unchanged. The government leave benefits is significant better than most companies. The bottom line price differences isn’t that great with the exception of a few occupations like IT.
  13. Salus, Thank you for the detailed explanation. We can better see your dilemma. In situations like this, there are usually two ways to improve. One is to bring critical attention To the matter, which might fix things but harm your chances for future business. The other is introduce the proper approach through constructive and positive means. Assuming you’ve unsuccessfully brought this up with contracting and program office management, I would schedule a meting with senior management. That is at a level over financial, contracting, HR, and perhaps the program office. Prepare a presentation highlighting benefits from your approach and cite the actual results from your regional office experience. I would feel out your audience and introduce the issues in a manner appropriate to their reactions. You could bring up dangers inherit from personal services, potential financial services, and overall appearances of improper agency management. You mentioned responding to a PWS but perhaps a SOO is even better. Suggest a solicitation based upon agency specified high level outcomes and have industry respond with competing solutions. It opens up the door to alternatives but doesn’t prohibit proposing the existing process. The agency has no risk. Hope this helps
  14. https://www.govinfo.gov/app/details/CFR-2011-title5-vol1/CFR-2011-title5-vol1-part300
  15. Hi Formerfed, Obviously those are pretty important questions we need to keep in mind at all times when contemplating action. I would say clearly, more business is a goal. We honestly could compete on price by following the standard practice of underpaying contractors for the work they are doing and just hiring them to fill in federal roles like everyone else, which is also easier from our administration standpoint because the agency does all the employee supervision, and the contractor is only responsible for hiring, submitting the initial paperwork, and providing time accounting. Between my company and my prime partner, we have the right past performance to jump right onto that treadmill for new positions. But one of my issues with that is that it results in contract employees making far less than their federal peers with fewer benefits and no pension, AND it cost the government more money. The agency completely ignores FAR 52.222‐46. As an example, the agency published a requirement for a position requiring a masters degree and 7 years of professional level experience, and based on that, the fair market wage for that position should have been over $90,000, but based on the winning bid had to have been paying less than $65,000, roughly $30,000 less than the fair market wage, unless the company was generously donating labor to the government. These sorts of wage discrepancies are really easy to find. My office mate was a contractor doing the same job when I was working for the agency was making $20,000 less than me when he had 2 more years of experience doing the same work. However, the whole purpose of founding my company was that I figured out an approach that would allow us to do a specific task that makes up a very large portion of work for the agency at a reduced cost over their use of labor hours. We would be able to make a reasonable amount of money (no one is getting rich here), pay good wages for completed work, and take advantage of expertise from people not normally available to the government (because they are location bound, have prioritized other quality of life considerations, aren't interested in full-time work). So I was left with a solution to an actual problem the agency has that would reduce their cost, move them away from using contractors as federal employees, and allow us to pay our professional employees proper and fair compensation. It also reduces federal labor because the agency project manager is usually responsible for training the new employees and providing supervision, neither of which is required under our approach. We are also able to clearly connect it to the comparative labor effort of labor hour approaches, so it isn't a matter of confusion or ambiguity. The culture of using contractors as employees is so ingrained though, that it is proving extremely difficult to make headway. One step of progress was that in years past (all of 3 years ago), the agency used to tell the contractor who to hire for each position. Now it is a mix of providing some reasonable position descriptions (but still clearly looking like personal services for the most part), or when they want to bring the incumbent back, they just write very specific job requirements for the positions so that only the person currently doing the job qualifies. So the answer to your question is yes. We are looking for more work and applying just and common sense principles (and the actual regulations). The goal is to compete fairly for work that is complaint with the applicable regulations, reduce cost to the government, and importantly to me, also complies with FAR 52.222‐46 so that contract employees are getting proper and fair compensation. I am no saint, but I try to make ethical decisions. But this one should be an easy sell because the only thing the agency has to give up is control of contract employees being used as federal employees. That it isn't an easy choice for the agency is starting to feel like the universe trying to gaslight me. ** As for why I think there is such reluctance to change, I think it is because it usually works fine. Different offices get employees in a manner that is much easier than getting a new federal employee and doesn't require the allocation of permanent funding, and for the existing federal contractors they get an easy source of revenue that requires very little work on their part. Only a few offices ended up having really bad experiences where the contracting company really started abusing the system, where they would hire someone for one of the positions, let the agency train them up, and if they performed well, they would take that employee into the main company and replace them with someone else, repeating the cycle. If it hadn't been for that, I don't think we would have gotten our approach in at all without filing an appeal or suit.
  16. Thanks C Culham. I have read the size determination info. This company was a small business during the initial award of the IDIQ, then became a large under the old rules, then became a small again, and finally self certified last year as a large for the IDIQ NAICS code under SAM (but not within the IDIQ). I really don't have an issue with the way determinations are made, even the 5 year rolling average. And the agency is being FAR compliant, but I still have a hard time with them awarding more than $40 million to one company, mostly under small business set asides per year, and continuing to make those awards under small business set asides. That company is on track to receive the same amount this year despite our repeated queries that they at least apply CO judgment in awarding under small business set asides. As far as whether the personal services are allowed, under the IDIQ master contract, all personal services are expressly prohibited from being awarded under this IDIQ. I couldn't find 5 CFR 500, so I am not certain to what you are referring to here. But some of the contractors have been performing the duties of federal employees for more than 20 years. This has created a pretty significant codependency with the agency. There is a strong bias towards incumbent contract companies when they have one of these employees, where they really don't have to compete on price. We lost a bid where we were $300,000 less expensive (to be fair, only 5% lower on a 5 year award), providing a FAR compliant fixed price solution that exceeded all of the performance requirements, had solid past performance, but the incumbent (and large) company still won the award. We have been asking each time we are bidding during the question period if they will consider alternative approaches, and so far they have said yes so far, so we have been submitting alternative proposals where they are (theoretically) welcome. If we lose out on this next round of proposals where we are being extremely careful to make it as clear as possible how we are exceeding PWS criteria and the benefits (beyond an apparent better fit for FAR), I may try to reach out to a Regional Administrator that I had a working relationship with when I was at the agency to at least raise the issue as a question rather than a point of conflict. I have a hard time imagining even doing something like an informal call with an attorney at the GAO's Office of General Counsel to get an unofficial answer on some of these questions would go over well, but it might be a less costly approach in terms of retaliation. So far, I have had CO's tell me that personal services is 'like when they make contractors go get their laundry'. Thanks for highlighting some other possible routes and statutes to consider. It definitely feels like a maze sometimes! Regardless of what we end up doing (or not doing), I am braced for it to be a long slog.
  17. Salus, what do you want to get out of this? Are you looking for more business? Or is it the principle? Or something else?
  18. Your post unlocks all kinds of considerations that are the basis for FAR subpart 37.104 and FAR part 19 regarding SB set-a-sides. Here are ones that crossed my mind as I read your post as while an agency may simply state “this is a non-personal services contract” there is a lot more to it. 13 CFR 121.104 regarding SBA calculation of annual receipts. You might consider a full read of 121. FAR 7.5 - Your basic information makes me wonder if the agency has stretched the use of the contract into this world. 5 CFR 500 Subpart E - The contract seems too long term for this to apply. But it does raise the issue of matters of "personal services" reaches in to the employment regulations and statutes of the Federal government. There are several statutes that allow agencies to do personal service contracts. USDA has a couple 7 USC 1627, 7 USC 2225, and 5 USC 3109 has broader application. All have direct relationship to appropriations where monies are made available for the statutorily allowed personal service contracts. Further agencies are given FTE ceilings through appropriations and is the cause for an agency to determine whether they are allowed to do personal services. This brings to mind "{T)he axiom that an agency cannot do indirectly what it is not permitted to do directly" (Ref: GAO Redbook, Chapter 3). Agency Head - With no specific reference your post implies that an agency's top level management has approved in some way the method being used for contracting for the needed services. Noting this working with a particular CO or IDIQ manager may not be the solution the solution may be at a higher level. Alternative Proposal - Within the context of the solicitation, and with a good relationship with the prime, using an alternative proposal to promote your idea could be considered but only if the solicitation provides that an alternative proposal is allowed. Reference FAR 15.209(a)(2) and the associated FAR clause 52.215-1. Not advice but just a spectrum of thoughts some of which you have expressed. Leave it alone or possibly raise to a higher level inclusive of the agency Inspector General......the spectrum carries with it the impacts you have noted. Even when I was a CO pushing against agency culture carried with it either subtle or direct retaliation so it does exist. Yet there is some point that inappropriate application of acquisition strategies must be "called out" to protect the public's interest and trust. Your decision on what action you might take is a serious one no matter the direction chosen. I hope my thoughts provide some help to you.
  19. If I had to choose personally, it would be on what my interests are. The PM field is broad and involves lots of different processes, tools, methodologies, and techniques to get a job done (successful acquisitions). It also involves learning one or more technical fields that the acquisitions support. The 1102 field involves learning progressively more and more things. You often become proficient at some (contract law, accounting, business analysis, negotiation, fiscal, etc.) fields but generally not an expert in all. To advance at the top end, both require supervisory/management skills. Many 1102s are happy just doing their jobs in front of their computers in the cubicle. That’s fine for many. On the other hand, most PMs have to be more assertive and push people to meet deadlines. Like I said, I personally would make a decision on what I like in a job rather than possible advancement opportunities
  20. First, I want to say that I am a big fan of these forums. There is a ton of useful information here that has been very helpful to us. I want to pick the forums’ collective brain to see if anyone has advice on my particular and peculiar situation. We are running into the same issues over and over with an agency, and these issues seem to be in direct conflict with components of the FAR. It is totally possible that I am the one who doesn't understand the FAR (am I the jerk?). Please read on and share your thoughts! My business is a subcontractor to a prime under an IDIQ. We provide specialized services that meet a core need for this particular agency, and have an informal joint venture for this type of work with my prime. This IDIQ is being used for all non-IT related contracting for this agency, though the original solicitation didn’t make this at all clear, apparently, they announced that at an industry day that I wasn’t able to attend (the work I do, which is part of the core agency mission was not even described in the solicitation for the IDIQ). So for the next several years, my only mechanism to provide my services to this agency is through my working with my prime. This agency has a LONG history of using labor-hour contracts to hire contract employees in lieu of hiring federal employees. These contractors perform the exact same duties as federal employees, which are core components of the agency’s mission, and they are required to do it at federal offices in the same office as federal employees doing the same work. I know this because I worked at the agency for six years, and for those six years I share an office with contractors doing the exact same job as me (though they typically get paid much less). The contracts to support these positions are typically the 5-year, base + 4 option year approaches. All of this makes it look very much like personal service contracts, despite this being explicitly prohibited under the agency’s contracting mechanism. They don’t actually put any effort into disguising this fact when they write the contracts beyond the required statement saying “this is a non-personal services contract”. The appearance of using this as personal service even extends into the agency having contractors represent the agency in public and stakeholder/decision-making groups. When you ask one of the contractors who their supervisor is, most will provide the name of their NMFS project manager unless they were specifically coached to answer otherwise, and the contracting companies exercise no supervision of these employees. We have been pushing for 4 years to try to get the agency to move to a non-personal service approach at least in our area of expertise. We have brought up the personal services issue from the COR level to the IDIQ manager and the agency ombudsmen over this time frame. We have been offering a firm-fixed price approach to meeting the agency needs, which is less expensive than their labor hour approach, offers guaranteed work productivity, and compliant with the law and regulations. We have had one region use the method and that contract worked great, and that region is seeking another round of the fixed price approach. However, the entire rest of the agency has completely disregarded the approach, to the point of continuing to award labor hour contracts for personal services even when we offered a less expensive fixed-price approach. And to be clear, my prime partner and I have a solid past performance history. But our approach, which to the best of my understanding is the ONLY approach they have been offered that is actually compliant with FAR has for the most part passed over in favor of awarding to the incumbent contractor and their incumbent contract employees (which also goes even more to the point that the agency is treating the contract employees as though they are their employees). My understanding of the problems here are really: · These seem to be blatantly personal service contracts as they meet ALL of the criteria for evaluating whether a contract is personal services or not under 48 CFR § 37.104. · They are using labor hour contracts to hire for these positions despite having clearly stated criteria for number of hours requested (they are hiring in single full-time employee increments per line item), without performing a Determination & Finding to support the use of labor hours over firm fixed price or fixed price with economic adjustment (despite FAR 12.207 and FAR 16.601. · And just for fun, this agency has awarded more than $40 million in contracts in one year to one company under small business set-asides where the standard is $16.5 million, and has actually refused to do anything to remedy this to comply with the spirit (and letter) of the Small Business Act. I know that FAR hasn’t been updated, and technically what they are doing is within regulation, but they refuse to take any actions within their discretion to even limit their awards to one business under small business-set asides to $16.5 million per year, request a new small business certification, or even exercise individual CO judgment to implement the intent of the SBA. My prime offers a broader array of services and has other contracts, and is not willing to risk retaliation by appeal award decisions, and as a subcontractor, I don’t have standing to appeal or take the issue to the GAO. And the CO’s, IDIQ manager, small business advocate, and agency ombudsmen have all made it pretty clear that we would likely experience retaliation if we started appealing awards based on the use of personal services, mismatched contract types, or even our technical review ratings. I would say they have made it clear that we could expect retaliation without threatening retaliation, it would always come from somewhere else in the agency. I could appeal the expansion of scope for the IDIQ, but that ultimately leaves me with the same issues. I also want to be cautious on doing anything as it could potentially have pretty negative consequences for my prime partner if their name got associated with mine. So the advice I am seeking is how can we get the agency to move forward into a more FAR compliant approach. I understand there is a long history in doing the things the way they have for decades, and we are not trying to force them to change all at once. But we do want to see them make changes when they have the opportunity to do so (e.g. awarding contracts to proposals that are non-personal services approach and fixed-price over labor hours when the proposal is better than satisfactory and price competitive or cheaper!). I know that is a fair amount of information, so I hope I still made our issues clear. I also want to acknowledge that I could be wrong about all of this and totally be misunderstanding the FAR as I have not had comprehensive training on it, and am looking at specific components often in isolation. Any advice here is appreciated!
  21. Came across this a few weeks ago. Good reminder of all the tools available https://aaf.dau.edu/aaf/contracting-cone/ It’s too easy to listen to or read a new requirement and jump right into a certain method to meet it without considering anything else. I’ve also heard, and I’m sure you all have too, ridiculous reasons to not picking the most beneficial method. Things like “I’m not paying that GSA fee, “ “we do nothing but contracts because our workload system doesn’t give much credit to orders,” and “we don’t have a policy here for using that.”
  22. Happy Memorial Day! I hope everyone has a wonderful holiday weekend as we remember those who have sacrificed for our country. Memorial Day was first observed in 1868. At that time then Congressman and former general James Garfield remarked of those that had died for our country: “For love of country they accepted death, and thus resolved all doubts, and made immortal their patriotism and their virtue.” While we remember their sacrifice, there was also much news in the world of federal contracting. This week saw stories, among others, of the ramifications of the STARS II contract hitting its ceiling, a new approach for multiple award contracts, and the Air Force’s plan to roll out “Skyborg” drones. The downside of a wildly successful governmentwide 8(a) contract. [federalnewsnetwork] Contract suit against U.S. kept from Court of Claims. [newenglandinhouse] Air Force launches search for AI-enabled ‘Skyborg’ drones. [fedscoop] What’s Congress got planned for federal contractors? [federalnewsnetwork] HHS Proposes ‘IT Control Tower’ to Manage Strategic National Stockpile. [nextgov] The current approach to awarding big multiple-award contracts is broken — here’s how to fix it. [federalnewsnetwork] FEMA vehemently denies taking over state contracts for PPE purchases. [thedenverchannel] GSA terminates McKinsey & Co.’s schedule contract. [federalnewsnetwork] View the full article
  23. "Client [large business prime contractor] would like us [subcontractor] to direct some upcoming work to a specific small business subcontractor under a separate line item on the contract." Could well be a mentor-protege situation, which is fine. Could also be the case that the specifically identified small business is owned by the brother-in-law of the prime contractor's buyer. (Been there, done that. Briefed CID and DoJ.) What would concern me is how I would bill the specifically identified small business' costs. As incurred? At hourly rates (if so, which ones?). With burdens & fee?
  24. Since the OP hasn’t responded or clarified the post but has checked the thread after all the above responses, I’m guessing that they have gleaned an answer herein or have obtained an answer elsewhere.
  25. In what might be a classic “now you tell me” scenario, the SBA issued a new rule May 21 saying that if an applicant failed to count the employees of its foreign affiliates when it was determining its eligibility, the SBA will not hold that against the applicant so long as the application was submitted before the SBA clarified that requirement. The problem with that, however, is that because the safe harbor ended May 18, it’s highly likely that a lot of those businesses already gave their PPP loan back. They’d be forgiven for thinking they had to, as earlier this month Sen. Marco Rubio was indicating that Congress would investigate companies who took PPP funds for which they weren’t eligible. For the record, the general rule is—and has always been—that in order to be eligible for a PPP loan, a concern and its affiliates must have less than 500 employees combined. The regulation explicitly states that, in determining its size, a concern must include both foreign and domestic affiliates. But the SBA has recognized that some of its guidance may have been misleading on that point. On April 15, the SBA issued an interim final rule that said, “You are eligible for a PPP loan if you have 500 or fewer employees whose principal place of residence is in the United States[.]” A fair but oversimplified reading of that statement led some to believe that if the applicant itself had less than 500 U.S.-based employees then it was eligible. The SBA cleared up the confusion on May 5, when it updated its list of Frequently Asked Questions to make it clear that “an applicant must count all of its employees and the employees of its U.S. and foreign affiliates[.]” Because of the somewhat contradictory guidance, the SBA has now decided that it will simply forgive companies that went ahead and applied for a PPP loan so long as the application came in before the SBA addressed the question in its May 5th addition to the FAQ. Specifically, it said: [A]s an exercise of enforcement discretion due to reasonable borrower confusion based on SBA guidance (which was later resolved through a clarifying FAQ on May 5, 2020), SBA will not find any borrower that applied for a PPP loan prior to May 5, 2020 to be ineligible based on the borrower’s exclusion of non-U.S employees from the borrower’s calculation of its employee headcount if the borrower (together with its affiliates) had no more than 500 employees whose principal place of residence is in the United States. Such borrowers shall not be deemed to have made an inaccurate certification of eligibility solely on that basis. Under no circumstances may PPP funds be used to support non-U.S. workers or operations. In other words, “our bad.” But what of businesses who did apply in that window who returned the money after the SBA said on May 5 that foreign affiliates did need to be counted? Can those businesses reclaim the funds? Seems as though they are out of luck. They can’t apply again, because they know for a fact now that they are not eligible. This rule has therefore rewarded companies who misread a single statement by SBA to their own advantage, then ignored later guidance, and elected not to take advantage of the safe harbor. View the full article
  26. By Hon. Jack Delman Our new COVID-19 (COVID) world brings special risks and unanticipated cost in the performance of federal contracts, particularly for those contractors holding fixed price contracts. Below we suggest various ways through which a contractor can mitigate some of these challenges. YOUR RIGHTS UNDER YOUR CONTRACT AND THE LAW If COVID impacts the timeliness of your performance, you should be entitled to additional time to perform your contract. It is likely that COVID will be considered an “excusable delay” under your contract and the law. The amount of time to which you will be entitled however will depend on the extent to which COVID impacts your delivery schedule. A “Request for Equitable Adjustment “(REA) should be timely filed with the Contracting Officer (CO) when all the relevant facts are known, showing the connection between COVID and your performance delay. If the REA is denied in whole or in part, you can convert the REA into a claim by submitting a claim to the CO under the Disputes clause of the contract per the Contract Disputes Act, 41 U.S.C. 7101. Generally, the government is not obligated to compensate a contractor for increased costs to perform the contract work caused by unforeseeable “force majeure” events, such as COVID, absent a statute, contract clause, or regulation that provides for such relief. Some possible avenues of relief under these three categories are set out below. If you are an eligible small business, you may apply through SBA for funds made available under the new CARES Act, Section 1102, to support payroll costs impacted by COVID. The Act also provides “economic injury disaster loans” and limited “grants” through the SBA, as well as limited debt relief on pre-existing SBA loans. The CARES Act, Section 3610, also authorizes your contracting agency to modify your contract to reimburse costs of “paid leave” for employees unable to work due to government facility closures or other access restrictions. The government may also look with favor upon a request for reimbursement of unanticipated PPE cost that is necessary to keep both contractor and federal employees safe. You will have a better chance of recovering these costs if you keep the CO in the loop early in the conversation, rather than submitting a “bill” after the fact. You should always keep track of any changes to the scope of the contract work ordered by the CO; generally, such orders will be compensable (increased costs plus profit) under the Changes clause of your contract. FAR 52.243-1, -2, -3. In such a case, you should submit a REA to the CO providing prompt notice of the change and its impact. Keep records of all increased costs. (Note that under a commercial items contract, the CO may not unilaterally order a change to the contract; all changes to terms and conditions must be by written agreement of the parties, FAR 52.212-4(c).) If you are working under a contract that includes a “Value Engineering” clause, FAR 52.248-1, -2, -3, consider proposing a Value Engineering change to the government. If the government accepts your proposal, the result may be remarkably profitable. See FAR 48.1. To the extent that COVID causes you to miss your delivery schedule or interim milestones, you should make sure that your “Contractor Performance Evaluation” takes this into account. See FAR 42.15. For this purpose, it is wise to keep records of all COVID impacts and to provide your CO with regular notice of the same. Performance in the COVID environment will have its challenges for federal contractors. A prudent contractor will use the tools available under its contract, the regulations and the law to help mitigate these risks to the extent possible. About the Author: Hon. Jack Delman Retired Judge, Armed Services Board of Contract Appeals Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues. Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure. The post Contractor Claims in a COVID-19 World appeared first on Centre Law & Consulting. View the full article
  27. On May 15, SBA released the Paycheck Protection Program Loan Forgiveness Application. Because loan forgiveness was a huge component of Paycheck Protection Program, the application is hugely important. While this post won’t do a deep dive into the loan forgiveness rules, we wanted to bring this to the attention of our blog readers. The SBA itself provided some highlights from the loan forgiveness application: Options for borrowers to calculate payroll costs using an “alternative payroll covered period” that aligns with borrowers’ regular payroll cycles Flexibility to include eligible payroll and non-payroll expenses paid or incurred during the eight-week period after receiving their PPP loan Step-by-step instructions on how to perform the calculations required by the CARES Act to confirm eligibility for loan forgiveness Borrower-friendly implementation of statutory exemptions from loan forgiveness reduction based on rehiring by June 30 Addition of a new exemption from the loan forgiveness reduction for borrowers who have made a good-faith, written offer to rehire workers that was declined Please take a look at the application to make sure your company is positioned to maximize eligibility for loan forgiveness, as the rules for calculating the forgiveness amount have some complicated wrinkles. If you have initial questions, you should get in touch with your banking institution or lender. We’ll keep you updated as we know more. View the full article
  28. I've got my FAC-C Level III already and I'm DAWIA Level 2 certified.
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