Cajuncharlie

Lots of good advice here. Chris M directly answered the question with the link to the Department of State website. Coming to you from Riyadh after 25+ years of prime and subcontract administration and management overseas...

Sorry if this is more introspective than philosophical. I left the Government after 5 years, 1 month, and 3 days (but who was counting?). Since then, I've spent about 10 years working in the U.S. and 25 overseas. It was 1978 when I left the job at Air Force base level, running the Systems Management Branch, riding herd on the antiquated daily batch processing punch card computer system supporting 30 or so folks in the Base Procurement Office (actually just renamed Contracting), still an ASPR-trained young Contracting Officer signing some of the things the computer cranked out. My job was rated 50% contracting and 50% computer systems manager. What would have happened if I had jumped to the computer side instead of staying on the procurement side where I started? Who knows? On one hand, I may have been able to retire as a rich techno-geek by now. On the other hand, I may never have been able to travel the world as I did in my younger days, to over 34 different countries, vacations every 3-4 months, then between projects taking my retirement a few months at a time, traveling through Asia with a suitcase and a dive bag, moving on or hanging around as the spirit moved me, and looking for work when the life of leisure began to pall. Would I do it again? Hard to say.

Suggest a search of wifcon. There was a recent piece on point. I forget whether it was a discussion topic or a CompGen decision, or both. (They say memory is the second thing to go. I forget what was first.) The ruling was against pass/fail.

Warranty period?

Joel's first post brought up important points for the first time. The "straightforward" question did not specify whether the solicitation was LPTA or best value, which would make a big difference in evaluation. Even under LPTA, it seems unwise to ignore price just because you can. If the technically unacceptable proposal was significantly lower in price and could have been made acceptable, either with minor changes or somewhat more substantive disucssions, the first answer would have ruled out that approach. Joel took the discussion out of "tunnel vision" mode into a wider perspective that provided not only a better answer but also a broader understanding of why it is a better answer.

Sounds like time to talk to Legal again, to get specific advice as to how to proceed from here, including answers to your questions.

It could be worse. At least his second item is still on the proverbial radar screen, and includes program people as well as contracts people. How would it be if he had not included this item?

Shouldn't the Excluded Parties list actually list all excluded parties?

I should have said direct cost-only to be perfectly clear. I made the same point you did in an offeror question and received the same kind of answer I wrote, when I should have known better. In that case, travel was just another ODC, and the "D" covered "direct," so cost-only ODCs by definition excluded indirect costs that would otherwise be allocable to those direct costs.

The contractor, unlike the Guard and Reserve, is not part of the armed services of our great nation, only a contractor, and cannot reasonably be expected to go to war in the way that the Guard and Reserve can. The analogy fails.

Recently I have seen an increasing number of contracts with cost-only "pass-through" CLINs for travel and ODCs. Problem solved.

Disagree with retread. Changing place of performance from a safe CONUS location to a war zone sounds like a cardinal change and is so drastic that a reasonable person would consider it outside the general scope, imho. If the contractor declined to perform at the new location and this went to court, and the contractor said, "I didn't sign up to go to a war zone," who would think the contractor is unreasonable or noncompliant with the Changes clause?

Agree with Vern. Literal coverage by the Changes clause is probably not enough to allow a unilaterally directed change. Is the contractor amenable to the change? If so, you already have legal and the competition advocate on board, and as long as you understand the cost impact, go bilateral.

In that case, see Vern's post #2, antepenultimate and penultimate sentences, for your answer.

It may be prudent to consult with the Dept of Labor. My hazy recollection is that one of the labor laws applicable to federal contracts applies on a statutory basis regardless of whether the implementing clause is in the contract.

Sounds like a concessionnaire contract to me. Haven't fooled with those in many years, since the days following the "khaki mafia" scandals when the procurement shop took over many non-appropriated fund procurement functions from the military clubs.

Part of the negotiation of this could be how it comes out in CPAR.

A quick look at FAR Part 42, DFARS 242 and PGI, AFARS, and EFARS found no such requirement. One of them did mention that a request for audit support should include a due date. It would seem that if the due date had come and gone, and reasonable follow-ups met with unreasonable delay, the file could be documented accordingly, and after appropriate internal approvals, one could proceed with contracting for audit services. Also, there was mention of inter-agency agreements. It would be necessary to learn what those have to say about the subject.

First, let's clarify terminology. In federal contracting, there is a difference between provisions and clauses. Provisions are part of a solicitation, and may expire with it. In commercial contracting, these would fall under the category of "information for bidders" or "instructions to bidders." Clauses are part of an RFP that always survives to become part of the contract. Provisions and clauses often are one number apart when dealing with the same subject matter, e.g. FAR 52.215-22 is a provision that would be implemented by 52.215-23. On flowdowns, if the text of the clause itself states that it must be included in certain subcontracts, there is no doubt that it is a required flowdown clause. If, however, the clause places duties, obligations, or risks on the prime that are not covered by a requirement in the clause itself to include the clause in subcontracts, it becomes a matter of company policy and business judgment whether to include the clause in a subcontract. You will not find help in the FAR that tells a prime how to craft its subcontract language to provide the least risk to the prime. Subcontracts are subject to state law rather than federal contract law (unless a savvy prime uses a clause that specifically states the subcontract is also subject to federal contract law), so companies must develop a set of clauses on their own. Those clauses would include mandatory flowdowns and may also include other FAR clauses whose text does not specifically require flowdown, in addition to the company's clauses grounded in the UCC and state law, perhaps from the cited ABA guide, or from AIA for construction, although many subs doing federal work would expect and be familiar with FAR clauses. If a prime has a cost reimbursement type construction management contract that has a services type set of clauses including Changes among others, and the prime issues fixed-price subcontracts for construction, what clauses would you want in the subcontract? You don't want the cost type Changes clause from the prime; you want the fixed-price construction version. You probably also want the full set of 52.236-xx fixed-price construction set of clauses in your toolbox, good tools, and your client probably expects to see them. Others in this forum may have other thoughts, but this is my $0.02 worth based on many years of experience in prime and subcontract management.

DFARS 252.232-7007, which is prescribed by 232.705-70 for incrementally funded fixed-price contracts.

There is another recent thread floating around here about whether labor subcontracts under a T&M prime are ODCs or just labor, and the answer was based on which version of the payment clause is in the T&M prime. Look around for that and see which payment clause is in your contract. It may be that the CO is reacting based on the old clause rather than the new clause. Or the CO may just be bullying.

"Consent," short for "consent to subcontract" in FAR 2.101, usually refers to the process described in the Subcontracts clause at FAR 52.244-2. Is that clause in your contract? If not, your problem is not a compliance problem but a client relations problem, and you may want to ask the CO to help you understand which part of the contract applies. If the clause is in the contract, be sure you read, understand, and comply. The clause has blanks to be filled in, so pay attention to those paragraphs. If your temp agency subcontract does not require consent, back to client relations.

Yesterday a government agency offered for my company's acceptance a modification adding a clause. (By the way, Block 13B called it an administrative change but Block 13E required contractor signature. One wonders if anybody actually looked at FAR Part 43 or the contract's Changes clause.) The proposed new clause uses the terms "reimburse" and "reimbursement" although the contract is not cost reimbursement type. Am I wrong to believe that a government clause, even at agency level, should reflect more care and precision in choice of words?

See FAR 52.215-23, Limitations on Pass-Through Charges.

Last time I conducted an annual BPA review was under ASPR 3 Part 6, if memory serves. If you can't find anything to go by, suggest you use FAR 13.303-6 to develop a checklist you can use for the annual review. Document your search for guidance and the negative results as the reason for developing your own checklist.