Retreadfed

I suggest that you contact the Professional Services Council (psc.org) and ask them if they can help you.

Vern, see CAS 405-20 "The Standard is predicated on the proposition that costs incurred in carrying on the activities of an enterprise—regardless of the allowability of such costs under Government contracts—are allocable to the cost objectives with which they are identified on the basis of their beneficial or causal relationships."

Also, see CAS 405-40(e) "All unallowable costs covered by paragraphs (a) through (d) of this subsection shall be subject to the same cost accounting principles governing cost allocability as allowable costs."

Finally, see CAS 405-50(a) "The detail and depth of records required as backup support for proposals, billings, or claims shall be that which is adequate to establish and maintain visibility of identified unallowable costs (including directly associated costs), their accounting status in terms of their allocability to contract cost objectives, and the cost accounting treatment which has been accorded such costs" and (b)(1) " to provide visibility for incurred costs, acceptable alternative practices would include:

(i) The segregation of unallowable costs in separate accounts maintained for this purpose in the regular books of account,

(ii) The development and maintenance of separate accounting records or workpapers, or

(iii) The use of any less formal cost accounting techniques which establishes and maintains adequate cost identification to permit audit verification of the accounting recognition given unallowable costs."

Torey, are you dealing with a contract awarded by the Architect of the Capitol?  If not what agency awarded the contract?

26 minutes ago, Corduroy Frog said:

A more accurate statement might be:  "Unallowable costs are not chargeable to either a G&A pool or an Overhead Pool." 

That is not a true statement either.  Remember, unallowable base costs are to be included in the base for calculation of indirect cost rates.  Therefore, if overhead is a part of the G&A base, unallowable overhead costs are to be included in the overhead pool for calculation of the G&A rate.  However, unallowable overhead costs are to be excluded from the overhead pool for calculation of the overhead rate. 

On another note, many people I have spoken with mistakenly believe that unallowable G&A costs can be included in the G&A base.  That is incorrect.  As H2H mentioned earlier, G&A costs remain G&A costs whether they are allowable or not.  Unallowable G&A costs are to be accumulated in a separate pool, then allocated to contracts using the G&A base.  See, FAR 31.201-6 and CAS 405.  The fact that a cost is not allowable, does not mean that it is not allocable to contracts.  See, FAR 31.201-1.

1 hour ago, NenaLenz said:

existing government hardware is obsolete technology

From a company's perspective, I would have a question concerning replacement of the hardware with new equipment.  I would not want to make an investment in something only to have the project pulled out from under me.  An example of this is the DEW line radar system where the radars used vacuum tubes.  Obviously, over time the use of vacuum tubes became obsolete and the system was ultimately replaced.  In the meantime, only one producer of vacuum tubes remained in business.  When the AF stopped using vacuum tubes, the contractor had a production facility that had to be closed down.  Something to think about in discussions with your client.  What happens to them if the government does something similar regarding their product.

CR, what activities are you considering to be business development?

The FAR does not require contractors to have any specified indirect cost structure.  Further, it does not generally mandate how costs are to be treated.  An exception to this is B&P/IR&D costs which are to be allocated to contracts using the same base that is used to allocate G&A costs.  B&P/IR&D may be considered business development costs.  They can be stand alone costs or included in G&A.  Either way, they are allocated to contracts over the G&A base.

If a contractor has an overhead pool and a G&A pool, the determination as to the composition of each pool should be based on an analysis of each cost using the guidance in 31.201-4 and 31.203.  If the contract is CAS covered, look at CAS 410, 418 and 420.

On 8/3/2018 at 5:49 PM, Vern Edwards said:

You might point out to your director that if the contracting officer signs an extension mod without obtaining adequate consideration the contracting officer's boss, the boss's boss, or a new contracting officer could refuse to honor the extension after the fact on the grounds that the contracting officer who signed the mod did so without proper authority.

Vern, are you applying this to the situation where the contractor experiences an excusable delay and the government and contractor negotiate an extension to account for the delay period?  If so, what is the consideration the government receives?  It has been my experience that the contractor generally receives no monetary compensation for such an extension.  Further, the government does not reduce the contract price.  

I think this language from FAR 52.219-9(d) should be of interest to 76fj40.  The language upon which this requirement is based was added to the Small Business Act in 2016.

(12) Assurances that the Offeror will make a good faith effort to acquire articles, equipment, supplies, services, or materials, or obtain the performance of construction work from the small business concerns that it used in preparing the bid or proposal, in the same or greater scope, amount, and quality used in preparing and submitting the bid or proposal. Responding to a request for a quote does not constitute use in preparing a bid or proposal. The Offeror used a small business concern in preparing the bid or proposal if–

(i) The Offeror identifies the small business concern as a subcontractor in the bid or proposal or associated small business subcontracting plan, to furnish certain supplies or perform a portion of the subcontract; or

(ii) The Offeror used the small business concern’s pricing or cost information or technical expertise in preparing the bid or proposal, where there is written evidence of an intent or understanding that the small business concern will be awarded a subcontract for the related work if the Offeror is awarded the contract.

(13) Assurances that the Contractor will provide the Contracting Officer with a written explanation if the Contractor fails to acquire articles, equipment, supplies, services or materials or obtain the performance of construction work as described in (d)(12) of this clause. This written explanation must be submitted to the Contracting Officer within 30 days of contract completion.

Have you checked to see if a teaming agreement is considered a contract in your state?

76fj40, I think you are going to be spitting into the wind on this.  Contractors have an obligation to comply with the terms of their contracts.  If there are any consequences to a contractor for failing to comply with a subcontracting plan that is incorporated into a contract, those consequences would generally be stated in the prime contract particularly FAR 52.219-9.  The current clause has a date of January 2017.  I suggest that you read that clause and try to gain an understanding of what it requires of primes. 

This is an extract from the SBIR Policy Statement put out by the SBA. 

American-Made Equipment and Products.  Congress intends that the awardee of a funding agreement under the SBIR Program should, when purchasing any equipment or a product with funds provided through the funding agreement, purchase only American-made equipment and products, to the extent possible, in keeping with the overall purposes of this program.  Each SBIR agency must provide to each awardee a notice of this requirement.

Notice the last sentence.  Check your award to see what it says in this regard.

Are you with a DoD component?  Is the contract an SBIR contract?

Boston, have you looked at FAR 52.244-6?  That should help you in regard to what clauses the prime is contractually obligated to include in subcontracts for commercial items.

Beantown, look at 10 U.S.C. 2306a(a)(1)(C).  That might help.  The same language is in title 41 relating to civilian agencies.  Various agencies have issued class deviations to the FAR addressing this issue.  Check to see if the agency involved with the contract has issued a class deviation.

jjj, I think you have misread the Coastal Environmental decision.  There, a solicitation was canceled in light of a bid protest and part of the work described in the solicitation was added to an existing contract.

This sounds like a frequent government practice of writing a contract as an FFP, but administering it as if it were a labor hour contract.

As a general rule, the contractors that I have had experience with charge vacation time and sick leave to an indirect cost account.  These indirect costs are then allocated to contracts based on the direct labor (hours or dollars) charged to a contract.  It would be an extreme government overreach to state in an RFP that contractors cannot burden direct labor costs with properly allocable indirect costs.  Most contractors should run away from a contract that provides for this.  If a contractor is only permitted to charge actual worked hours as a direct cost of a contract, the direct cost of providing those hours should be burdened with properly allocable indirect costs which include vacation and sick leave costs.

Since you referenced FAR 52.222-17, I presume that the order will be subject to the SCA and contain 52.222-41.  If that is the case, look at subsections (f) and (n) of that clause which might be helpful.

Contractor123, in your original post, you stated that the contract is an IDIQ contract.  That indicates that work is done under task or delivery orders.  If that is the case, is there something in the contract that would prevent the government from issuing an order for the Phase II work now before the base period of the contract expires?  By base period, I presume you mean the initial period within which orders may be placed. If that is not the case, please clarify.

40 minutes ago, joel hoffman said:

However, it does not prohibit some type of subcontractor performance evaluation, either.

True, but the point is a firm would have a hard time convincing the GAO that not considering all subcontractor past performance is unduly restrictive when subcontractor past performance does not have to be evaluated in the first place.

It should be noted that under FAR 15.305, the only entity whose past performance must be evaluated is the offeror.  Thus, subcontractor past performance is not required to be evaluated.

FAR 16.505(b)(3) says that "If the contract did not establish the price for the supply or service, the contracting officer must establish prices for each order using the policies and methods in subpart 15.4. "  This seems to support Vern's assertion that a task order may be a negotiated contract for some purposes and not for others.

On ‎7‎/‎3‎/‎2018 at 6:54 PM, MAY-D-FAR-B-WIT-U said:

we sometimes insert additional provisions when competing orders under 16.505 and in this case, we have.

FAR 16.505 requires agencies to include the procedure for awarding orders in the multiple award task order contract.  Does your agency state in its contracts that it will include provisions that are not included in the contract in instructions for submission of task order proposals?  If the ordering procedures do not inform contractors of this possibility in their contracts, what is your authority to "insert additional provisions when competing orders?

Frank, the prescriptive language in 52.222-46 says to insert the following provision.in accordance with 22.1103.  In turn 22.1103 requires contracting officers to insert the provision at 52.222-46 in solicitations for negotiated contracts, i.e., RFPs.  Nowhere is 52.222-46 referred to as a clause.  Looking at FAR 2.101, a provision goes into a solicitation not contracts.  On the other hand, a clause goes into both solicitations and contracts.  Based on this it is clear that 52.222-46 is not a contract clause and should only be inserted in solicitations.  It should not be in an IDIQ contract.  If it is, someone made a mistake and would not be the first time a contracting officer included a solicitation provision as a clause to a contract.

I do not know why someone would include 52.222-46 in an IDIQ contract as part of the  procedures for issuing orders under that contract if that is what happened here.  Some people just like to make extra work for themselves.

May-D, a task order under a multiple award IDIQ contract is a contract within the definition of "contract" in FAR 2.101.  As regards the clauses that apply to that contract, look at FAR 52.216-18.