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  2. I think the validity of 1a has been established. Based on the language of the statute and the DoD promulgation comments rejecting suggestions to apply the exception at the subcontract level, the exception only applies to prime contractors. As for 1b., we don't know what the subcontract is for, thus, no one can say.
  3. I think that point 2 of my original post has been discussed having all on the same opinion, for this specific point 2 I think my take-away is that the definition of NTDC do applies to a supplier that is exempt from CAS or subject to modified CAS, even if it had in the last 12 months a subcontract from a Prime, where the Prime Contract was Full CAS covered, because his subcontract cannot be considered full CAS covered, and so the definition of NTDC still applies. I don't see yet a final position (maybe I did not catch it) to support or discuss prime's rejection reasons on points 1a and 1b. I'll appreciate any further help on this.
  4. I'm sorry for the delay in the reply, I was on a long travel. Retreadfed, Always the same DFARS, I did not change focus. I followed what you posted and, considering it a good idea, I went to read the public comments and responses to the Proposed Rule on Federal Register and I found the two responses that I posted above. From that reading I was gaining the perception that there were more comments in favor of the applicability to subcontracts than contrary to that. I also understand that responses to public comments can just give an help reading the rule, but the text of the rule is what it is. Neil Roberts: I confirm that my interest is still on the applicability of the exception conteined in DFARs 252.215-7010(b)(1)(ii)(E). In any case, to your question: yes, I verified that also FAR 25.215-12 is included in their flowdown, which should not be applicable if the above exception would be applicable (as no certified cost and pricing data will be required). Thank you and sorry again for the delayed reply
  5. Most federal contracts are structured with a base period with a number of option periods that can be exercised at the agency’s discretion. But what happens if an option year goes unexercised? Recently, a disappointed contractor attempted to challenge the agency’s decision not to exercise an option before GAO. Unfortunately, GAO was not receptive. Arch Systems, LLC, B-417567 et al. (July 2, 2019), involved a task order procurement conducted by the Department of Health and Human Services (“HHS”) for continuous testing services of its major software systems. The base performance period of the task order was from July 2, 2018, through July 1. 2019. The task order also included 4 one-year option periods. Arch was named the awardee of the task order and undertook performance. Unfortunately, Arch encountered performance difficulties. As a result, HHS elected not to exercise any of the option periods under Arch’s task order. Arch later learned HHS anticipated awarding a short-term contract to an 8(a) contractor while it prepared a competitive procurement to resolicit the services. Arch subsequently protested both HHS’s decision not to exercise the options under its contract and the award of the short-term contract to the 8(a) participant. In response, HHS requested the protest be dismissed because it involved a matter of contract administration. HHS’s position for requesting dismissal was a strong one. GAO’s bid protest regulations allow it to consider challenges of “an award or proposed award of . . . a contract[.]” 4 C.F.R. § 21.1(a). Its bid protest regulations further clarify that “[t]he administration of an existing contract is within the discretion of the agency[]” and not subject to review by GAO. 4 C.F.R. § 21.5(a). Given this regulatory backdrop, GAO has consistently understood its authority to be limited to issues surrounding award, not matters of contract administration after performance has begun. As GAO explained, “we generally do not review matters of contract administration, which are within the discretion of the contracting agency and for review by a cognizant board of contract appeals or court.” Despite the strong basis for dismissal presented by the agency, Arch attempted to argue that its protest should nevertheless be heard. To build its argument, Arch cited to an earlier GAO decision, Mine Safety Appliances Co. B-238597 et al. (July 5, 1990). That case involved a procurement for prototype production. Two contractors were awarded contracts for prototype production, and both contracts included option quantities for initial production. After evaluating the prototypes, the agency exercised only one contractor’s option period. The other contractor protested and GAO took jurisdiction over the issue because—according to GAO—the procuring agency was actually conducting a limited procurement for production between the two prototype producers. Arch argued the present situation was analogous to Mine Safety Appliances, and GAO had jurisdiction to hear its challenge. GAO was not convinced. As GAO explained, “the agency is not conducting a limited competition; instead the agency is acting within its broad discretion to administer its existing contract with Arch.” Consequently, GAO concluded that “[Arch’s] circumstances are not factually or legally similar to those addressed in Mine Safety Appliances, and related decisions.” Arch’s protest regarding its option period was thus denied. Given all of the indications that a GAO protest would not be heard, why did Arch pursue a challenge before GAO? It may be because challenging the decision not to exercise an option at the Boards of Contract Appeals is an exceedingly difficult proposition. A contractor must either show an abuse of discretion or bad faith on behalf of the agency. Proving either of these is exceedingly difficult to do. As such, pursuing a claim appeal before one of the boards of contract appeals may have been an even worse option. Regardless, GAO’s decision in Arch makes it clear that no matter how adverse the law may be at the boards of contract appeals, GAO is still not going to consider protests of options because they are matters of contract administration outside of its jurisdiction. View the full article
  6. Joel and Carl, incompetence can take place anyplace. However, having been on both sides of the fence, I have noticed a general decline in the capability of government procurement personnel. This not only applies to PCOs, but also to DCMA ACOs and DCAA auditors. I have no empirical studies on why this is happening and it may be a general trend in the government's ability to attract and retain capable personnel. On an anecdotal note, having to deal with a contracting officer who has been put on a performance improvement period of performance before the agency initiates a performance based personnel action is no cake walk. Similarly, dealing with a DCAA auditor who is a whistleblower is almost impossible because no one will try to rein him/her in for fear of having a reprisal complaint lodged against them.
  7. Who sent the request? Has your company been paid and is the work complete? Is the request related to a single invoice or all the invoices? Did the requester state a reason for the request? What is meant by "reconcile with the books?" Whose books? Why are you billing at the rates set out in the proposal instead of the rates in the contract and/or the actual rates incurred if that is what your contract requires? Is there an invoice clause is the contract? What does it state regarding the content of invoice submittals? Really need more details related to what is happening.
  8. PepeTheFrog thinks two lifers doth protest too much. It's like the detective who solves a murder by maligning the murderer in a room full of suspects...somebody got red ears! This thread is about the government's behavior. PepeTheFrog agrees with both of you, in that PepeTheFrog's original advice can apply in many different situations, not just this one. See also the lockstep General Schedule (GS scale).
  9. I learned early on to not expect anything more than the bare minimum from many contractors, particularly with the low bid, IFB acquisition methods. Of course, bidders respond to the method imposed upon them. You get what you pay for. Best value, trade off rid us of most of the dirt bags. There may still be a few hopping around from place to place...
  10. Off topic a little but one of the most beneficial contracts initiatives was done by CBP’s IT office. They used milestone schedules from acquisition plans and publicly posted on their website. So interested companies could see status at any point in time. It even included time for internal solicitation reviews, issue dates, proposal receipt dates, technical evaluation, selection decision, etc., and lots more. That way industry could see the latest status and adjust their efforts. Unfortunately they stopped doing that.
  11. Yeah right it's only prevalent in the government. This week.... Large well known tire and brake company gets my dual wheel one ton pickup for a rear brake job. I have to travel 20 miles one way for such service. Next day I am hauling a trailer load of horses over our mountains. Crazy noise from brakes and the telling smell and heat from brakes of overheating when I pull over. Next day back to shop, investigation and "Oh oops we are sorry we installed the brakes wrong!" Hmmm "Should I have paid full price for a shoddy job?" "Oh we are sorry but no rebate on work but of course come back anytime and we will fix at no charge if you encounter more problems" The bare minimum is a new standard that swings both ways it is sad to say.
  12. expecting anything other than the bare minimum from a federal employee will leave you frustrated, in most cases hopefully, this discussion will be a cathartic experience for you yes
  13. Are you a prime contractor or a subcontractor? Is the client a government contracting officer? Is the client referencing a FAR or agency supplement clause as the basis for the request?
  14. We have received a request for cost data on a T&M contract. The client wants our calculations for the indirect rates and fees applied to the base/cost and wants to reconcile with the books. There is only time and no material on this contract. We have been billing at the rates that were set out in the proposal which covered Option Years. This was a sole-source contract. Is this something we need to provide? The contract was awarded in 2017 and we never provided cost related information with the invoices in the past.
  15. By Julia Coon, It’s that time of the year again, and your General Services Administration (GSA) Schedule Industrial Funding Fee (IFF) payment and sales reporting are due by July 30th. In accordance with Clause 552.238-74, all Schedule contractors are required to report sales within 30 calendar days following the completion of the reporting period and remit the IFF within 30 calendar days following the end of each reporting quarter. Even if you have zero sales for the April – June quarter, you are still required to report zero sales. Be Aware: There is New Sales Reporting Portal This will be the first time most contractors are completing the reports and payments in the new sales reporting portal. The FAS Sales Reporting Portal (SRP) is GSA’s new tool that supports the collection of data required by the Multiple Award Schedules (MAS) program. Contractors reporting on a monthly basis for the Transactional Data Reporting (TDR) pilot and contractors reporting on a quarterly basis will now both be using the FAS SRP. All first-time users must register for the multi-factor authentication process. Even if you were previously accessing the FAS SRP using a digital certificate or reporting sales in the legacy 72 System, you still need to register for the multi-factor authentication process before you are able to log into the FAS SRP. Multi-factor authentication registration steps can be found on the FAS SRP website linked above. Only authorized negotiators, the Contract Administrator, and the IFF Point of Contact will be able to access the contract in the FAS SRP. It’s important to use the same email address that is listed on your contract when registering to ensure access to the contract. If your points of contact listed today need to be updated, you will need to submit a formal modification in eMod making the updates for your Contracting Officer’s approval. Don’t Delay! To ensure a timely submission of sales reports and IFF payments, DO NOT wait until the last minute. Register for the FAS SRP now so you know you can access your contract and will be able to complete the reporting requirements on time. If you need assistance or have questions regarding the reporting requirements, please contact Centre’s GSA team. About the Author: Julia Coon Consultant Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists. View the full article
  16. My miss read and thank you for clarifying. I do not mean protest rather my intent was with regard to when and what an agency is to do upon award - notice and if appropriate debriefing where either carries award info in the notice/debriefing process. Stepping myself back with regard to "award status" consider again the 52.212-1 provision but now at paragraph (c) and what period the government requested as the paragraph can be tailored, or paragraph (d) of the 52.215-1 provision and say block 12 of the SF-33 that might be the cover form. And then even possibly if in a quote scenario where the government has not stipulated a period of acceptance but you, yourself stipulate a period and consider how your "week or two" fits in. While I understand timing may be important to your business strategy I also understand why an agency may not be responding if your requests for award status is made one or two weeks into a period where the government has 30, 60 or whatever they requested days they stipulated for acceptance. As you yourself note you are getting good responses from an agency where it is past 30 days and if by chance your quote/offer was via a solicitation that carried an untailored 52.212-1 provision then that agency is doing a good thing as you note not only for your needs but in general complying with their commitment made in the solicitation as I would suggest they are keeping folks engaged so they can make a request something like "Is your quote/offer still good?" at say 45 days past the time quotes/offers were received. So to your specific question yes, sometimes overworked under staffed, yes sometimes lazy, and sometimes because your week or two request may be seen as a request that has not considered the sideboard of the solicitation that said the government has 30 or 60 days to award so you will know status when it occurs. I would add that there is no real excuse for an agency not posting award or solicitation cancellation info in FBO as required as well as providing direct status to a requester who provided a quote or offer and the solicitation was cancelled.
  17. On Friday, July 12, 2019, the U.S. House of Representatives passed its version of the 2020 National Defense Authorization Act. While this passage may lead to an uncharacteristic political fight over appropriations, contractors will be watching whether the U.S. Senate and House bills ultimately agree upon the less politically-charged sections likely to impact their businesses. The House and Senate bills both include a lot of the same provisions, including some that we’ve written about previously on SmallGovCon. For example, both include permanent authorization of the Department of Defense Mentor-Protege Program. But some other key provisions of the House bill are not in the Senate bill. Those differences will have to go through the process to reach a compromise version and may or may not survive. For example, the Senate bill does not include section designed to protect the data rights of contractors challenging a contracting officer’s decision to remove restrictions. The section would repeal section 866 of the 2019 NDAA. The Senate version also does not include the provision creating a dispute process for subcontractors when the prime contractor fails to pay (now in Section 873). Neither is the requirement that the SBA track whether small businesses receive their fair share of best-in-class contracts, nor the workforce development investment incentives. Also, only the House bill reduces the threshold requiring an enhanced debriefing in certain DoD procurements from $100 million to $50 million. And, only the House called for the amendment to the Small Business Act to instruct the SBA to create a cyber security training program. The Senate bill also does not include the space matters that the House bill does, specifically the establishment of the Space Corps as part of the Air Force, the prototype multi-global navigation satellite system, the expansion of the proposed satellite regulations, or the focus on ground-based architecture to support space operations. The compromise process may be long on this NDAA, as it has become uncharacteristically political. But we’ll keep you updated. View the full article
  18. B2B, your posting was specifically about the above DFARS provision. The responses here have focused on your specific request about the DFARS provision. Are you now questioning whether there are other circumstances under which this subcontractor may present information to a prime contractor for a an exception to providing certified current cost or pricing data? As I tried to indicate in an earlier posting response, the answer is yes, if FAR 52.215-12 is included in the RFP.
  19. I'm not sure what you mean by timely in this regard. I am only seeking award status (which hasn't been noticed anywhere else either). If you mean timely as in 10 days to file a protest, that time should begin after an award declaration is or should have been known. Some awards take a week to decide... others take over a month.... some take longer. I have one project that is past 30 days but the CO is responsive to my follow ups. I have contacted him once at the two-week mark and then again right after the four week mark. He has responded both times and advised that his office has just been incredibly busy and he is working on it. The project is something that they do need done to prepare for the next project.
  20. I agree with @formerfed with regard to "no excuse" however a "week or two" puts you in the category of untimely whether literally with regard to regulations or otherwise. The very reason I provided you with some regulatory citations that may be of use. Be timely, quote them with regard to your requests as appropriate and see where your requests go.
  21. Texting is a method of communication. But not, for example, when the design consultant needs to have detailed conversations with the government’s project engineer that require the designer to explain something to him, other detailed interactions or government feedback , etc., during design and resulting contract execution by foundry and fabrication, installation, etc. The project engineer needs to learn how to be accessible, how to return a phone call, respond to emails, etc. Oral communications by telephone or face to face seem to be fading these days. I see it more and more. Not everyone communicates exclusively by text. The government has also tasked my friend to mentor the young engineer, because the agency has lost most of its technical expertise and depth of knowledge of the complex systems being renovated or repaired. My friend retired from their engineering division and had a vast engineering knowledge of those systems. Can’t mentor someone who is inaccessible. If all the young engineer knows how to do is communicate via text, then he should be paid as a typist. My comment was meant as empathy for small contractors, who don’t have the luxury of being able to compete for multiple jobs simultaneously, while waiting for someone to notify them of the award status on those they have submitted quotes, proposals or bids on.
  22. Email or even texts are fine. I handle all of the service work for a couple national chains in my region. Almost all communication is by text. After about 15 years of being their main guy things are very simplified with regard to communication. I don't even write contracts anymore. I send them a quote, they email me back to go ahead, I do the work and send them an invoice and I get paid. It's a nice simple system. In my case, I personally perform on all of my projects. It's one of the things that has kept me working through all of these years because my clients know they are getting my personal quality of work, not just an employee or sub of mine. I guess it makes it an odd transition into government work where companies as small as mine might not be as common. I've done two government projects so far and both ended with extraordinary comments about the quality I've provided. To me, that is the best part. I really take pride in a job well done.
  23. I can understand that. Small construction companies have limited bonding capacity and key employees. Their bonding capacity gets tied up during bidding projects or especially during source selections. Their key personnel often cant work on multiple projects - how many different competitions can they be proposed on?
  24. One of my best friends is an engineering consultant for the USACE. The young engineers that he is supporting don’t want to answer or speak on the phone, respond to voicemail or return emails. Unless they initiate a conversation, it appears that the only way to contact them is to text them. Its not isolated to that agency. I won’t elaborate other than to say that we have recently worked with another DoD agency on performance oriented functional design criteria for a huge new headquarters project which the agency wanted to design for the future workforce. The agency provided in depth employee surveys for input. A large percentage of their employees are intelligence analysts, who don’t extensively interact with others. They are most comfortable when glued to their computers...
  25. Thank you, I appreciate that. It is just frustrating. If I am awarded, I have to be ready to move forward and complete a project in a timely manner... but I am at the mercy of when an award is made and if it is made. Another consideration is when I know I have sharpened my pencil and have good numbers and then I am worried about placing other bids which might result in an overlapping project. I am a small company and one at a time is our typical capacity.
  26. Yesterday
  27. In all honesty, there is no excuse for ignoring emails and not returning phone calls. Answering the phone on an inquiry takes a couple minutes. Responding to an email is quick. In many cases, it’s lack of experience and training for the 1102s and just fear of having to respond. By ignoring they hope the issue goes away. I'm sympathetic and know how much time and effort companies put into responding. You deserve feedback on what happened.
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