Retreadfed

Vern, I appreciate your opinions and insights. However, I know there are others whose opinions I also appreciate who have a different view. Can you support this assertion with some authoritative citation?

How do you know that the "IDIQ was in fact correctly assigned under CAS coverage" without first answering the basic question of how to compute the value of the contract? To the best of my knowledge, how to compute the value of such a contract is an open question since I have not been able to find an appeals board or court decision that specifically addresses that issue in this context. However, there are cases that address the issue in other contexts that hold that it is the minimum amount that determines the value of an IDIQ contract. For example, see Travel Centre v. Barram, 236 F.3d 1316 (2001) and Varilease Technology Group, Inc. v. U.S., 289 F.3d 795 (2002).

Don, why would you think that FAR 1.108© applies to the CAS and the CASB rules, when the CASB is given sole responsibility and authority for issuing CAS interpretations? Also, in regard to what is the value of an IDIQ contract, what impact does this extract from FAR 16.504 have on your conclusion that it is the maximum potential amount that can be ordered under the contract that deterines the value of an IDIQ contract "To ensure that the contract is binding, the minimum quantity must be more than a nominal quantity, but it should not exceed the amount that the Government is fairly certain to order"? Changing it around a little bit, would it make any difference if we are talking about multiple award contracts instead of single award IDIQ contracts?

What did you use to determine the value of the IDIQ contract (i.e., minimum quantity, maximum quantity, something else) in making your determination that the contract is subject to the CAS?

It is interesting to note that the checklist seems to indicate that it is the auditor who determines the adequacy of an ICS and is the official with the authority to return the ICS to the contractor.

Here, you need to re-read 52.216-7 and the revisions to 42.7. This makes it clear that it is the contracting officer who makes the determination whether an incurred cost submission is adequate. Moreover, the contracting officer can vary the information required by (d)(2)(iii). This would be appropriate, for example, if the contractor has no cost reimbursement contracts, but does have T&M contracts. DCAA has no guidance on how to treat this situation. Further, 52.216-7 does not mention the ICE model or otherwise indicates that the clause incorporates it. Finally, the DCAA checklist is not binding on anyone but DCAA and predates the June 2011 changes to the FAR. DCAA has not issued any public guidance addressing the June 2011 changes.

Here, why do you say the ICE Schedules are now mandatory? I don't read the revised 52.216-7 that way. In fact, I interpret the clause to permit the contractor to use its own schedules as long as the data called for by the clause is provided.

Think this trhough a little bit. There are several reasons why a contractor may not bill for costs incurred in a warzone. You say one of the reasons why they have not billed is because they have not been able to locate adequate supporting data. Have you asiked why they cannot? Could it be that the data was destroyed through hostile action? I know of a contractor here that had its offices in World Trade Center 7 on 9-11. An engine from one of the planes went through its office destroying several records. As a side note, the New York City procurement office was in the World Trade Center. It, and all its records, were destroyed in the attack. Next, have you determined whether all events that permit the determination of the allowability of costs have occurred? For many costs, such as litigation costs covered by 31.205-47, third party liabilities that may be covered by insurance and environmental clean-up costs, allowability cannot be determined for several years after the cost has been incurred. Finally, as Help (I believe) indicated, amounts owed subcontractors would be direct costs of the contract. If the subcontractors have not had final indirect cost rates established, the prime generally cannot close those subcontracts and submit b illings that include those costs. I think you need to do some more fact finding to determine what the real problem is before you develop a solution in search of a problem.

You asked a theoretical question, so you should expect a theoretical answer. While it might be theoretically possible to do so, some real world factors should be considered such as who has the authority to do the novation? For example, which contracting officer would have the power to novate an order under a GSA Schedule contract? Next, what is the basis upon which a novation is required? If you have a supply contract and Oldco sells all the assets used to perform any order under the IDIQ contract, what would be the basis for not novating the contract and all orders under it? Another factor is who is the contract holder? If it is an 8(a) contractor performing a set-aside contract such a novation might not be possible. Hopefully, this demonstrates why a theoretical answer will probably not be of much value if you have a real issue for which you are seeking information.

"Common control" as used in the FAR is a procurement concept that is not to be confused with the accounting concept of a related party transaction. Except for Part 19, you will not find a discussion of what constitutes common control. I suggest you contact a knowledgeable procurement attorney to get an opinion on whether common control exsits in your situation. However, you should note that 31.205-26 should not apply to contracts or subcontracts for commercial items.

Thanks for the clarification. The way you worded you Oct 24 reply to me, you appeared to be saying that a vendor could submit a proposal to receive a set-aside contract although it had outgrown the size standard for the procurement.

How could a concern qualify for a set-aside if it has outgrown the size standard for the procurement?

Just because a firm has graduated from the 8(a) program does not mean that it is not still small or an SDB. Tha ability of contracting officers to have a contractor recertify its size status is not limited to GSA contracts, but contracting officers can require a recertification before issuing an order under any indefinite delivery contract.

Also, don't forget to check the eligibility requirements for HUBZone SBs, SDVOSB, 8(a) and WOSB's. For example, a HUBZone concern must certify that it is small at both the time it submits its proposal and at the time of award.

For a fairly recent decision that addresses this topic, please see, ATK Thiokol v. U.S., Docket No. 2009-5036, decided by the Court of Appeals for the Federal Circuit on March 19, 2010.

You said that rates are set by a CBA. Although the cost principles from FAR Part 31 are not controlling in regard to contracts for commercial items, did you consider this policy statement from 31.205-6((1) "If costs of compensation established under ?arm?s length? labor-management agreements negotiated under the terms of the Federal Labor Relations Act or similar state statues are otherwise allowable, the costs are reasonable unless, as applied to work in performing Government contracts, the costs are unwarranted by the character and circumstances of the work or discriminatory against the Government"? There is more to the cost principle that goes to explain the concepts in this sentence.

OK, I'll bite. Can you expand on your answer, particularly focusing on the impact, if any, FAR 1.108© had on your "yes"? I'm trying to figure out at what point in time the "expected" value of the pricing action is to be determined.

Look at 15.406-2(e) and see if that helps. Also, if the pricing action turns out to be less than the TINA threshold and you do require a certificate, do you think the certificate would entitle you to a price adjustment if the data turn out to be defective?

I don't know what type of contract you are expecting to award, but I know of no FAR requirement that a contractor have a government approved accounting system to be considered responsible. Instead, a contractor needs to have an accounting system that is adequate for the contract type being proposed. See FAR 16.104(i) and FAR 9.105-1((2)(i)(. As you have recognized, having an adequate accounting system is an element of responsibility. If you determine that a small business does not have an adequate accounting system and you find that small business non-responsible as a result, you must refer the matter to the SBA for a COC. See, PMO Partnership JV, B-401973.3, B-401973.5 (Jan. 5, 2010).

Does your contract say anything about the application of the LOC clause to individual CLINs? When different funding sources are used to fund separate CLINs on a contract, sometimes the contracting officer includes a clause applying the LOC clause to the separate CLINs.

No. The intent is to exempt contracts from CAS if they are exempt from TINA. In other words, if a TINA excpetion (not a waiver) applies to the submission of cost or pricing data, CAS will not apply to that contract or subcontract. By the way, the recodification of title 41 brought the statutory language up to date as it now reads " a firm, fixed-price contract or subcontract awarded on the basis of adequate price competition without submission of certified cost or pricing data."

Just to add a little more to this, originally, the exception applied to firm fixed price contracts awarded on the basis of adequate price competiton without the submission of cost data. That still made some contracts that were awarded competitively without the submission of cost or pricing data subject to the CAS. The CASB later amended the exception so that FFP contracts awarded on the basis of adequate price competiton and not subject to TINA would also be exempt from the CAS.

Thanks. I was just looking in the O&M titles.

To the best of my knowledge they were not working capital funds as the buying office was not located in a working capital funded activity. Let me try my question again in a different way. The FASTbook has two entries for DoD wide O&M funds. One is 097X0100 and the other is 097 0100. The description in the FASTbook for each is the same. I have not been able to find anything n the FASTbook that explains the difference. Maybe I am l,ooking in the wrong places, but since you have referenced the FASTbook more than once, I thought you might be more familiar with it and how to use it than I am.