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  1. Today
  2. No. I'm not saying that and please don't tell me I'm "mansplaining" which is not a term of respect. I'm saying that you don't have a problem with the incorrect accounting by the small business subK, because it washes out over time. Look, sometimes when I stay at a hotel they charge me for the first night on my credit card. It may not even be the correct per-night rate. I could complain but I don't, because when I check out, that first night's charge is credited (erased) and replaced with the per-night charge I agreed to pay times the number of nights I stayed there. The fact that the first night's charge ("deposit") was overstated is irrelevant by the time I check out. What I'm saying is that, in the circumstances you describe, you are overthinking this. In CF's original post, he had different circumstances that warranted a different answer.
  3. Yesterday
  4. Retreadfed: I believe there is no discretion but to comply with United States Code requirements as may be construed and interpreted by the federal common law of government contracts. In keeping with the posted facts to start with, perhaps there is authority that a CPFF subcontract can be based on adequate price competition when there is one or more bidders?
  5. A prime contractor's purchase contracts should include a provision that the subcontractor will provide maximum opportunities for small business plan category purchases by the subcontractor. Propose that your goal will include the subcontractors' accomplishments to meet the goal. You will have to do some work identifying the prime contractor's purchases and the subcontractors and contact them to ask how they are doing.
  6. Yes, that is one of my suggestions, with the proviso that it or they will be follow on task orders, exempt from fair opportunity (based upon the description provided). If so, then state that intent in the initial task order.
  7. As others have pointed out, the FAR requirement for a subcontracting plan is contingent upon a contract over a certain dollar threshold... "and that has subcontracting possibilities" (FAR 19.702(a)(1)) You say your situation has no subcontracting possibilities. If the government believes you, the contracting officer may execute a memo saying there are no subcontracting possibilities (and therefore no plan or a plan with zero goals). You may have missed the point of Donald Mansfield's post: The emphasis is on good faith. Do the research on the "teeth" (enforcement) of the "good faith" effort part of subcontracting plans. You'll find that the government has a very steep hill to climb because "good faith" effort can be satisfied despite failure to meet the goals. They are goals, although some in the government do not understand what that actually means. You strive for goals, but you are not (necessarily) required to meet goals, in this example.
  8. Can you answer the question I asked on Friday May 17?
  9. Why do you need options for this contract type? Why not just issue a contract with an ordering period that covers the entire period of performance?
  10. Then your goals for all of the categories will be zero. If the contracting officer thinks that is unreasonable, he or she may open negotiations to arrive at reasonable figures.
  11. Why not issue a task order for what you can price at the outset, then subsequent task orders for other work when you price the other work?
  12. Neil, do you view FAR 15.403-1 or -2 as imposing any restrictions on your ability to obtain certified cost or pricing data from potential subcontractors? Put another way, do you believe you have the discretion to require subcontractors to submit certified cost or pricing data when it is not required by these FAR subsections?
  13. Yes, sound advice, but to implement that advice, we need a plan. This conversation is about what makes sense to put in the plan.
  14. See FAR 19.702(a)(1). Submit the plan, and then let the government open negotiations on the plan. At the table, convince the government that your approach is reasonable.
  15. awhinton, I believe the reason is that GSA is awarding another option for the contract due to either an extension or a protest ruling. I don't have the slides from the training event yet, (should get them sometime this week), so I can't be more specific.
  16. You can only price what you can definitize. What do they say about my suggestions, both of which would be consistent with 16.5? Your organization would have to be totally ignorant about architect -engineer design processes, design development, design integrity if they won’t let you use the same architects and engineers of record for follow on design work that would be essentially non-severable or based off of the initial design effort. The other A-E pool members should understand that if you let everyone know that during the initial task order selection process.
  17. @Neil Roberts - There is no rule precluding subcontracts. Yes, the company does have long-term agreements with material suppliers. It is my understanding that none of these agreements are with small businesses. Because those are long-standing agreements that pre-date this government contract and will not be modified for the performance of this government contract, I do not believe those long-term agreements are necessarily government subcontracts. I suppose we could propose that when those supply agreements are up for renewal, the company could use good faith efforts to identify and contract with small business suppliers. But my understanding is that we already know there aren't any small businesses that make the specific items that will need to be purchased under those supply agreements. Therefore, I am not sure what subcontracting goals make sense to propose--the company most likely won't hit any targets we set. For overhead item goals, could we include them in the individual plan or would those need to go in a commercial plan?
  18. Joint venture agreements continue to be a hot topic among small business federal contractors. For good reason: if the agreement is properly prepared, a joint venture allows two companies (including, in the case of an approved mentor and protégé, a large business) to augment their capabilities and jointly bid on a federal project. But to avail themselves of this benefit, the venturers must first prepare a joint venture agreement that complies with the SBA’s requirements. Sometimes, this task can be quite tricky. And as a recent decision of the SBA’s Office of Hearings and Appeals shows, the failure to have a compliant joint venture agreement can cost the joint venture an award. The OHA’s recent decision discussed in this post—Veterans Contracting, Inc., SBA No. CVE-107 (Apr. 10, 2019)—was a protest challenging the VA’s verification of an SDVOSB joint venture. As a reminder, the federal government has historically had two SDVOSB preference programs: one at the VA (through the Center for Verification and Evaluation (or “CVE”)) for VA-specific set-aside projects; and the second through the SBA, for non-VA SDVOSB set-aside projects. Until October 2018, these programs had different sets of regulations, which caused confusion for SDVOSB contractors. But now, these programs both follow the SBA’s regulations. One key difference, however, remains: though CVE must verify an SDVOSB or SDVOSB joint venture, there is no verification requirement by the SBA. And through the recent regulatory overhaul, the OHA will consider protests challenging CVE’s approval of an SDVOSB or SDVOSB joint venture. That’s what OHA was called to do in Veterans Contracting. There, an SDVOSB joint venture called CR Nationwide, LLC—Trumble Construction, Inc. JV1 (“CRNTC”) was awarded a construction contract at the Lewis Stokes VA Medical Center in Cleveland. Veterans Contracting—a disappointed offeror—promptly protested CRNTC’s SDVOSB status, alleging that the firm shared too many resources with non-SDVOSBs. To resolve the protest, the OHA looked at CRNTC’s Joint Venture Agreement. Although the SDVOSB joint venture regulations require, among other things, that the agreement “set forth the purpose of the joint venture,” “itemize all major equipment, facilities, and other resources to be furnished by each party to the joint venture, with a detailed cost or value of each, where practical;” and “specify the responsibilities of the parties with regard to the negotiation of the contract, source of labor, and contract performance,” 13 C.F.R. § 125.18(b)(2) (cleaned up), CRNTC’s Joint Venture Agreement did none of these things. According to the OHA, the Agreement did not even contain a discussion of the instant procurement. The Agreement then included a vague pledge to later submit to the “contracting authority a jointly executed statement” that discusses the contract-specific items in more detail. Neither did the Agreement demonstrate how CRNTC would meet the performance of work requirement applicable to all joint ventures. Based on these failures, the OHA had little trouble finding CRNTC’s Joint Venture Agreement to be non-compliant. Doing so, it relied on a previous decision—ASIRTek Fed. Servs., LLC, SBA No. VET-269 (2018)—that found a joint venture agreement to be non-compliant for similar reasons. And because the VA requires an SDVOSB joint venture to be verified at the time of bid and award, the OHA did not credit CRNTC’s attempt to cure the Agreement’s deficiencies in response to the eligibility protest. Based on the deficiencies in CRNTC’s Joint Venture Agreement, the OHA found it to be ineligible under the procurement. *** As mentioned at the outset of this post, preparing a compliant joint venture agreement can be tricky. In Veterans Contracting, the OHA continues to make clear that a non-compliant joint venture agreement will render the joint venture ineligible to perform the work. If you have questions about joint venture agreements, please give me a call. View the full article
  19. Lawyers appear to be on board with the "some" as well. Small agency, limited A&E experience.
  20. Everyone's assumptions above are accurate. It is a multiple award IDIQ contract for A&E services. We do a QBS competition where the most highly qualified firm is selected for task order award IAW 36.6, but as a task order also has some 16.505 applicability.. The "some" people in my organization feel that no contract, task order or anything can be awarded without being priced, period... I appreciate all your input. It has been informative.
  21. The definition is unchanged. I am saying that the cost "applicable to the contract type" is unknown and therefore "not applicable to the contract type." If it is "not applicable," the concept of price is essentially voided in 15.403-1 adequate price competition. I am not saying that competition is absent when two or more propose a CPFF contract type. To me, competition is not the same as adequate price competition. I would like to read other views especially those that have reference to cases. I am willing to reconsider whether my view is sustainable by cases or FAR rationale. However, I am less willing to change my view if it turns out to be only my business practice.
  22. FAR 15.401 reads As used in this subpart-“Price” means cost plus any fee or profit applicable to the contract type. Since 15.403-1 is a part of subpart 15.4, why would the definition of "price" in 15.401 not be the definition of "price" in 15.403-1?
  23. Help, I’m reading your man-splanation again, I think you are saying that a deposit as I described can be recorded in one’s accounting system as either an allowable project expense (as the small biz did) or as as a prepaid expense (asset account, not a cost, not billable, will not be indicated to client and will be handled within the accounting department). Both are equally correct for any size business ?
  24. Help, thanks for mansplaining this to me. Makes perfect sense
  25. Last week
  26. Completely different situation. In your scenario, a deposit was paid to a hotel to secure a conference room. There are various ways to record that transaction (including on the balance sheet as a pre-payment), but since your subK is a small business, most likely they just booked it to conference expense or something similar. Then they billed you (the prime) for it. You paid the bill, thus recording a cost on your books ("subcontractor cost" or something like that). You had a valid cost that you then asked your government customer to reimburse. And they did! In the future, the deposit will be refunded (or perhaps used to offset conference expenses). In any case, when that happens your subK will reflect the benefit of that refund/offset on its next invoice to you. The invoice value will be less than it otherwise would be, because of the impact of the deposit. In turn, you will pay the subK less than you otherwise would have, and will ask your government customer to reimburse you for less costs than you otherwise would have billed. It all washes out.
  27. My view/interpretation is from a prime contractor standpoint. I do not know how the government sees this. Prime contractors would be taking unreasonable risks for itself and the government to simply compare proposed estimated cost and fee by 2 or more subcontractors and awarding it as proposed to the one that has the lowest mathematical total. Regardless of the estimated cost proposed, the government is bound to pay the contractor its actual and allowable costs. FAR §§ 15.305(a)(1); 15.404-1(d); Palmetto GBA, LLC, B-298962, B-298962.2, Jan. 16, 2007, 2007 CPD ¶ 25 at 7. Those costs are unknown and can not be compared to one another. The government and the prime contractor should perform cost realism per 15.404-1. When performed, I think it would be reasonable to say that it would be rare that the analyzing party would not seek some adjustment in the proposed. Hence, as a practical matter, CPFF contracts are negotiated and outside the bounds of adequate price competition defined in 15.403-1. I looked at the definition of price in 15.401, Retreadfed. I have not done any research. Offhand I would argue that when the cost applicable to the contract type is unknown, there is no price for purposes of 15.403-1 (1)(c)(1) Adequate price competition.
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