Velhammer

Elf949: Did the SBA tell you to have your vendors enter the manufacturer NAICS, or was that an interpretation made by your company? When the Gov't buys a supply, it is supposed to use the manufacturer NAICS to establish the size standard for the acquistion. That doesn't mean we cannot buy the item from a retailer, so long as they meet the size standard. It sounds like the SBA is asking you to follow the same principle. Hopefully they didn't tell you how to do it.

Carl & Joel: Thank you both for your comments.:

JI20874: No, it is a FFP MACC. The contractor in question is consistent in using this method for pre-award proposals or post award changes. Understand about reimbursement of the premium, but that doesn't mean they cannot apply G&A and profit and spread those costs over the actual construction activities in the schedule of values. The firm is a major player, and we aren't their only customer. Understand everything is negotiable, but at the moment I'm just trying to find out if it is allowable.

Hi Joel. Sure, here is what they do (numbers are fictious). Assume the contract amount is: $100,000 including G&A and profit. They will use the same rates to apply to the bond premium amount, illustrated below. Bond Premium: .80% $800 G&A: 5.% $40 Profit 5.% $42

Does anyone know of anything that prohibits a contractor from apply G&A and profit on their performance and payment bonds (construction)? I have never seen this, but that doesn't make it wrong.

I don't see a problem with item 1. The PGI states (in part): "The blanket work request authorization may be in the form of a letter or contract modification (Standard Form 30)." If it was done in a "letter" there would already have to be funds on the contract. For item 2, I would agree with negotiation of the rates based on "The clause at DFARS 252.217-7028, Over and Above Work, requires the contractor and the contracting officer responsible for administering the contract to negotiate specific procedures for Government administration and contractor performance of over and above work requests." and "To the maximum extent practical, over and above work shall be negotiated prior to performance of the work."

I don't agree it is "illegal", but FAR 37.112 does address this issue by refering you to 5 CFR 300 Subpart E. Here you will see that there is a time limit that these non-personal services can be used (max of 240 days). You didn't mention your agency, but the DFARS does have an authorization for personal services for health care (237.104), perhaps your agency supplement has something similar.

The SBA issued a proposed rule in FR Vol 76 No 193. One of the proposed changes was that any modification that caused the contract value to exceed the subcontract plan threshold would require a subcontracting plan. A final rule has not been issued. Sounds like some PCR's may be jumping the gun and misinterpreting what was in the proposed rule.

I would tend to agree with the prime, especially for future work. The issue isn't when the prime received the basic award or task orders, the issue is when they issued subcontracts to your firm. If they had bought out your subcontract prior to you becoming "other than small", then those subcontracts should remain undisturbed. If the prime has an efficient subcontracting program, they will verify your size status (i.e. SAMS.Gov printout) before issuing any subcontracts.

Sure. I'm going to have to make a lot of assumptions since I don't know what type of contract. I imagine your agency uses some sort of automated contract writing system. I'm also assuming that whatever form was used is both a solicitation, offer, and award type of document (SF 33, SF1449, SF 1442). When the solicitation was released it had 50 pages because it contained solicitation provisions, reps and certs and evaluation criteria. The offeror submitted a proposal and signed the SF/DD or whatever form. In the "old days", we made the award by counter-signing the document, writing in the new contract number and removed sections K, L,M. Distribution was made without renumbering the pages and included the contractor's hand written prices. Biggest point is: the contract contained both the offeror (contractor's) and the PCO's signatures on the document. With the evolution of automated systems, the PCO can "release" the award, which automatically removes the provisions, reps & certs, and evaluation criteria, so the award document is now 39 pages. If the PCO wanted to have the distributed copies show both signatures, the PCO would replaced the two page award document (like a SF 1442, where the signatures are on page 2) that was generated by the system with the pages that had handwritten signatures and either hand-wrote on typed in the contract number. So the first two pages would show 50 pages, but the remaining pages (recently spit out by the system) would only show 39.

Sounds like the page numbering was from the original solicitation, and that when the award was made (i.e. by signing the actual offer), that sections K, L, & M account for the missing pages, or if a SF 1449, the Reps and Certs dropped off?

If you are in DoD, please see the deviation 2012-O0018, which can be found on the WIFCON home page.

I appreciate your point of view, which is why I'm asking for other opinions. To respond to your points in the hope of advancing the conversation: 1) Unobligated funds are being rescinded. In my opinion, that is not the same as saying the funds are no longer available for new obligations. Stated another way, the funds won't be expired, they just won't be available. 2) If I had written a 2 1/2 year contract (the full term) with no options, and this turn of events occurred, there would be no issue.

I have a service contract that is funded with ARRA funds (Post Construction Award Services type work). The Dodd-Frank Wall Street Reform and Consumer protection Act has a little blurb about all unobligated Recovery Act funds. It states the funds will be rescinded on 31 Dec 2012 and used to pay down the deficit. I'm still waiting to see how this is going to be implemented, but presumably I won't have funds after 31 Dec 2012, if not sooner. My service contract is currently in option year #1, which expires at the end of April 2013. There is still a remaining option year, and the services will still be required. Some of the positions are SCA covered, but even if a change in WD occurs, the rates being paid are well above the SCA minimums, so no adjustment would be due. Since I don't have a bona-fide needs rule problem due to the five year funding (4 1/4 now), and I won't see an SCA adjustment; I cannot think of any reason that I cannot exercise the option about 5 months early. Am I missing anything else?

I would remove the solicitation requirement. Sounds like a bleed over from the requirements of the 8(a) program. Having retail vendors add the manufacturing NAICS to their profile would be encouraging them to misrepresent themselves. If this is a SB set-aside, this may impact your acquisition strategy if there are no small business manufacturers; unless it is already on the waiver list.