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Retreadfed

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  1. General, you are describing the situation where agencies no longer exist. On the flip side, consider the absolute contracting chaos that followed the fall of Saigon. One of the main issues that came out of that was how to deal with contracts that required payment in RVN Dong which no longer existed.
  2. I think the situation that most closely resembles this is when the BRAC process was ongoing in the 1990s. Several activities went out of existence in that process. Although the activities went out of existence, many of their functions were transferred to other activities. This included contracts being transferred to new activities. Fortunately, these actions were planned out with plenty of time to do the planning. This does not appear to be the case here although Sec. Rubio seems to have indicated that a lot of USAID programs and functions will be brought into DOS. If that happens, I would hope that the transfer includes plans on what to do with existing contracts and who will be responsible for them even it is just to terminate them. As Carl, has indicated, I would contact, the head of contracting at State to see if there are any such plans. On a side note, recently I worked with a contractor that needed to file claims against contracting activities that no longer existed. The contractor submitted the claim to the individual indicated in the contract at the address listed there. The claim was returned to the contractor with no action taken and the contractor filed suit in the COFC. The government has filed a motion to dismiss the suit for failure to get a CO decision even a deemed denial. That motion has not been ruled on.
  3. GandM, just to be sure, what version of the Limitation on Subcontracting clause is in your contract?
  4. This is more than a contracting action. As Guardian has indicated, this contract was issued to provide reasonable accommodation for deaf or hearing impaired employees. This accommodation is required by the Rehabilitation Act and EEOC regulations. Any failure to provide the accommodation can result in an EEO complaint being filed with the EEOC or the Merit Systems Protection Board, depending on the circumstances. If the complaint is sustained, the agency can be ordered to provide the accommodation. The EEOC/MSPB process is time consuming and disruptive to normal agency operations. Moreover, there is the possibility that the deaf employee's supervisor could incur some personal liability if the complaint is sustained. In short, you are going to have to provide reasonable accommodation in any event which is something that is in your EEO Officer's rice bowl. Therefore, I suggest that before terminating the GSA order, you convene a planning session with the stakeholders involved, e.g., the agency EEO Officer, legal counsel, your supervisor, and a union rep if you have a CBA (if you have a CBA things can really get dicey, therefore, your labor adviser needs to be involved also), to determine how to provide the accommodation. But you are going to have to get your ducks in a row before any such session. That means getting all relevant information from your "parent agency" and GSA.
  5. I generally agree with what H2H has said. However, I think this statement needs a little more clarity. The term "flow down" is frequently used to describe clauses that a prime includes in its subcontracts. However, there is no FAR definition of what is a flow down clause. If we are talking about what clauses from a prime contract are to be inserted into subcontracts, H2H's statement is literally true. However, clauses from a prime contract are not all the clauses that should be in a subcontract. In Mary's scenario, the prime contract is an FFP contract. It should contain the appropriate FP payments clause. However, the prime is considering awarding a T&M subcontract. The FAR T&M Payments clause is 52.232-7 which should not be in the prime contract. Thus, the prime can used 52.232-7 in the subcontract or use its own version of a T&M payments clause. If the prime uses 52.232-7, that clause incorporates 52.216-7, but makes it applicable to material only. Thus, it is possible that the sub will be required to establish final indirect cost rates, but if the T&M subcontract is the only contract the sub has that includes 52.216-7, that will be a matter between the sub and prime.
  6. JKRAU, in your scenario, how is each contract priced, (FFP, CR, T&M)?
  7. I now consult with contractors on doing business with the government. Many times when they are questioned about their processes, the response I get is "that is the way we have always done it." Thus, I think this is a problem for both parties.
  8. I wonder how this concept applies in regard to companies like Blackwater? As a side note, see, FAR 37.109.
  9. Govkor, are you reading FAR 13.003(a) as saying that FAR 13 procedures can only be used if the ultimate value of the procurement is below the SAT? Is there anything in 13.003(a) that prohibits the use of such procedures in other circumstances such as those you posed in your hypo? How would you apply FAR 1.102-5(e) to what you call this "grey area"?
  10. I'm not sure what you are trying to say here, but I do not think 52.212-5(b) gives contracting officers unfettered discretion as to which of the clauses listed there are to be included in contracts/solicitations. I have not checked each of the clauses, but each of the ones I sampled require the clauses to be incorporated when certain conditions are met. If the conditions for incorporation of a clause are met, it is my opinion that the contracting officer must incorporate that clause. Thus, if a clause is not required to be included in a contract to be performed entirely outside the U.S. it should not be checked for application to such contract. Further, there may be further conditions on incorporation of a clause such as dollar value or type of contract. Those other conditions should be considered in determining whether to incorporate one of the listed clauses in a contract.
  11. Good. Whoever is going to do this is taking on a gigantic task. Good luck to them.
  12. Outerspace, what is the instrument that your "prime" has with the government? Is it a contract or an OTA?
  13. Minnen, go back to my question concerning 52.212-5. If the contract is for commercial services, that clause should be in the solicitation/contract. If it is, look at paragraph (b) of that clause.
  14. One final note, if this matter goes to dispute and the question concerning the legal fees is allowability, not reasonableness or allocability, the government has the burden of proving that a cost is not allowable. The contractor does not have to prove that it is allowable. This is an important point if DCAA is involved. DCAA takes the position that if a contractor cannot show that a cost is allowable, then it is unallowable. This causes problems when contractors try to resolve questioned costs with contracting officers. Many times, contracting officers will defer to DCAA on the allowability of costs.
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