joel hoffman

Yes, the government obtained the benefit of use of the temporary facilities during the delay period. This was, in effect, an extension to the period for the government’s occupancy and use of the rented facilities. It wasn’t clear, but I think the claim was only for additional delay costs, not profit (even though originally submitted as a request for EQUITABLE adjustment). The contractor wasn’t asking for profit due to the delay, consistent with a Suspension of Work. The term “equitable adjustment” usually includes an adjustment to profit or fee.

Retreadfed is correct that the provisions you are referring to don’t exempt you from the requirements for cost or pricing data if your items are not commercial products.

If your estimates are judgmental, not based upon exact costs (but rather best estimates), you simply identify what is judgmental within the estimate/proposal. Judgmental data generally isn’t considered to be “cost or pricing data” for the purposes of certification.

I assumed that it was a gratuitous notice. Elgueromeromero didn’t mention if he asked for the opportunity to ask follow up questions to the written debrief comments.

Doesn’t that answer your question here? Seems clear and unambiguous to me. It’s a required debriefing if the award is valued at at least $10 million.

Unclear what type of substitution you are describing. Please clarify. Are you changing a person from one labor category to another? Or are you changing the labor category? Or something else? As mentioned, would this be a matter of substituting identified key personnel? It would seem that the contract or an order would identify the applicable labor categories. Substituting another labor category would appear to me to be a change, requiring the governments agreement or approval. In the scenario you presented, it appears that you are saying that there are multiple labor categories in the contract but not identified in an order. To substitute another labor category and/or different price would appear to be a change. I agree that the contract language matters But I don’t understand what type of substitution you are asking about….

Agree with Don’s implication. If the delay for services or supplies is excusable, the government can extend the completion period, if possible for the circumstances. The difference between the clauses may be that there are construction schedules and usually liquidated damages involved in construction contracts. This requires timely, affirmative actions by both parties to determine and adjust the construction schedules and completion date(s) due to excusable delays. In addition, the scope of construction work is fixed and must be completed. Not extending the completion date for an excusable delay may likely be a constructive acceleration with associated impact costs. For service contracts, It might not be possible to provide or perform all of the remaining services or extend the performance period to perform the remaining services.

There may be some other alternative. However, I don’t think that clause will satisfy Signal’s objective or usual company policy. And I have little confidence in the knowledge, desire or skill of many government contract administrators to actively enforce or proactively comply with that clause. Id recommend the two parties try to negotiate something that will satisfy them.

Carl, the situation expressed here is one between the sub and the prime. My suggested solution is between those parties to satisfy both of their needs. i think that Signal agrees. Edit: Accelerated government payment to the prime here is not the issue or relevant. That’s a rabbit hole. Carefully read the description of the problem. The prime apparently doesn’t want to finance upfront payment and the sub’s customary policy for new customers is to seek upfront payment.

If it is an immediate issue, I think that our suggested solution to apply a discount to your sale can benefit both you and the prime. It would cover your policy concern for upfront payment with new customers. It would improve your cash flow. It could offset the carrying (finance) costs for the prime. 🤠👍

As long as it is consistent with the CURRENT cost per day, I think that you are okay. Prorating the monthly cost…

How is the current contract period priced? By the day? By the month? By the work? ok you said it’s priced by the month. Can you determine the current price for 15 days? “…The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor.”

Right. I was typing my edited response about an alternative solution above that could be a win-win while you posted…

If you are negotiating with this firm and want the sale, perhaps you could offer a slight discount for the product(s) for up front payment. It could make up for the other firm’s carrying cost plus you’d get paid sooner than if you have to wait (cash flow). Win Win

It simply confirms that financing is the prime contractors responsibility , in particular for simplified acquisitions. If the prime is trying to push that off on the sub, that’s not what the cited reference means. “I have a customer [prime] who came back this morning and told me that they couldn't pay in advance, as it would be a FAR violation for them, citing the FAR seen here. https://www.acquisition.gov/far/32.202-1 “ That is nonsense. The reference doesn’t prohibit a prime paying a sub in advance. In fact, it is consistent with the description of the prime financing the contract purchases (“paying in advance”, where necessary ). The prime or prospective prime might not WANT to pay you in advance but there is no violation of the cited reference. @Signal, do our responses answer your question?

There is nothing inconsistent here with the contractor financing the contract. Your contractor is trying to blow smoke up… ”32.202-1 Policy. (a) Use of financing in contracts. It is the responsibility of the contractor to provide all resources needed for performance of the contract. Thus, for purchases of commercial products or commercial services, financing of the contract is normally the contractor’s responsibility.” Reading further, government financing MIGHT be allowed - but for purchases above the SAT. See (b)(2)…

No, I have not heard of it but I’m not a lawyer or a paralegal. It is apparently the same as or similar to the doctrine of “res judicata” (see page 8 of the linked US Court of Federal Claims appeal). https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2021cv1169-92-0 See, for example: https://www.lataxattorney.com/claim-preclusion-and-issue-preclusion.html

ATLAS, is this DFARS clause in the solicitation? If yes, what is the government’s interpretation of it? If not in the solicitation, I suggest that you insist on its inclusion as part of the negotiation.

ATLAS., let me clarify. I don’t disagree with you that you don’t have to provide and certify “cost or pricing data”, here. No pushback on my part. By the way- If your labor, for example, is based upon best estimates because you don’t have exact costs, even with (or without) “cost or pricing data”, you could identify what is judgmental data within your estimate and explain the basis of the estimate. Such judgmental data is not considered to be “cost or pricing data” for purposes of certification.

This is an over generality and not necessarily correct if you are referring to the cost principles in Part 31. See, for example 31.102 “Fixed-price contracts”, when cost analysis is used. Cost analysis isn’t confined to certified cost or pricing. It may be used when evaluating data other than certified cost or pricing to determine cost reasonableness when a fair and reasonable price cannot be determined through price analysis alone. (15.404-1 Proposal analysis techniques. (a)(4)). Edit: It would seem to me that a manufacturing company ought to be able to determine how much it costs to make something or buy something that it sells… Atlas said that it isn’t necessary to treat these items as commercial supplies or services.

Why do you need a FAR reference to cancel a task order request for proposal?? Do you need an instruction to do that? I noted that the title of this thread refers to a task order or delivery order, not a task order request.

As in unrestricted solicitation. The clause is included but self operates to not apply to a small business concern. In my opinion the original post is cryptic and obscure, perhaps due the the apparent nature of the project (DD-254). Not clear what activity NOVA_CO was referring to, at what point in the acquisition (pre-solicitation, post selection or post award), if a contractor has been selected or not, etc. NOVA_CO might just be selecting clauses…or just asking a simple question. That certainly has spawned a great deal of discussion, speculation, and time spent researching and posting by several people. SHEESH… The actual question was answered early on. NOVA_CO hasn’t logged in to the Forum since posting the original question

Having both signatures (written agreement) binds both parties to the terms and conditions and performance of the contract or order discussed above. Otherwise, performance is optional.

In this situation, so what if there is no “privity of contract” between the government and the sub? The sub is telling the government and the two primes what happened, that it is still storing the stuff, neither prime contractor is responding to it, and does the government want it back or not? The government can acknowledge the situation - bearing in mind that it had a hand in creating it… If it wants it back, it could direct whatever prime it thinks is applicable to have it returned. I’d copy furnish the poor sub. It’s no wonder to me that DoD flunks the GAO or IG criteria every year for accountability of government property.

At any rate, the clause at 52.219-9 is self-operating to not apply to small business concerns in paragraph (a). Doesn’t matter if it is in the resulting contract, unless a red herring to the contrary is also in the contract or whatever Nova_CO is preparing.