Whynot

How does the Changes Clause operate under a T&M contract? Does the contractor have to work beyond the funding? Is the equitable adjustment based upon cost or at the T&M rates?

It sounds as though you are the lead contractor (not the same as a prime contractor) and have negotiated an option/renewal to your contract or BPA on your team?s behalf. A CTA is not a subcontract. Under a CTA each GSA partner is essentially a prime contractor. You may be processing orders from your customer as the lead and allocating them to the appropriate GSA partners under your team, but the customer order, or piece of it, belongs to each GSA holder under a CTA.

Your partner will get the revenue, and report the sale under their schedule, at the contract/BPA price. It sounds as though they pay you 5% as a handling fee.

You have an interesting question. Now what happens if they disagree with the contract/BPA price? The CTA between you and the partner should state what the price should be. It probably does not clearly state that it is linked to current GSA prices.

I think you should re-negotiate with your customer ? there was a mistake made. If the customer does not re-negotiate then the partner gets to accept the lower price.

Can audits of pre-award prime contract proposals ever be enforceable the same way post award contract audits are for contracts that contain the clause 52.215-2? I don?t see a corresponding solicitation provision that by virtue of bidder submitting a proposal for a prime contract award makes the bidder?s compliance with an audit enforceable. I understand that the bidder will likely not receive the award of the prime contract for not complying/responding to the audit, but can they be compelled to comply/respond through subpoena of other legal means ? or do they simply fail the audit?

I found 552.238-79 Use of Federal Supply Schedule Contracts by Certain Entities?Cooperative Purchasing allows State and Local entities to add terms and conditions that do not conflict. There does not appear to be anything similar for Federal agencies - and nothing in writing on the GSA website to allow it. 8.406-1 order Placement states that "The ordering activity shall place an order directly with the contractor in accordance with the terms and conditions of the pricelists." Why allow the flexibility for State and Local and not for Federal?

I would be one that disagrees. I assume that you take the words "the procuring CO is responsible for applying the regulatory and statutory requirements" to mean that the procuring CO can unilaterally add requirements to orders under the GSA contract. I see how the CO is responsible but that is it.

Thanks. I saw that on the GSA site.

Anything more direct and on point? Such as, the GSA response includes the statement "Generally, the alteration or tailoring of GSA Schedule contract terms and conditions to meet the needs of individual procurements is not permitted". Where is what is "not permitted" explained in more detail?

I received a GSA order from an agency, and the agency is requiring to me to sign various additional certifications. Is there a reference or cite that I can provide to the ordering agency that clarifies to them that no additional information is required from the vendor for them to place an order under a GSA contract?

Primary Subcontractor sounds like a teaming agreement term. If you have negotiated a TA with your company as a first tier primary subcontractor good for you. You need to look to the TA for what it means and what are the terms and conditions associated with it - not the regulations. I would hazard a guess that it doesn't make any difference to your teaming status whether you actually perform 0% or 100% of the work awarded to you. Composite rates are usually not desireable for a selling vendor - they are hard to manage. I would recommend that you talk with your business people or controller on what they prefer. Look to the TA for any restrictions.

Thanks.

Would equating Consent to Authorize and Approval to Acceptance be going too far?

Thanks.

Yes, for the most part, but I am interested in the use of these terms elsewhere as well.

Thanks.

Is there any contractual significance between consent versus approve? My dictionary seems to treat them interchangeably: Approve - to give one's consent, Consent - to give approval

Thanks.

I believe that CAS Working Group Interim Guidance paper No. WG 76-2 addresses your question.

Are any regulations/statutes triggered if the cumulative value of orders under a Basic Agreement/Basic Ordering Agreement reach a particular threshold or value? It is my understanding that these orders are individual contracts and there is no basis to sum orders for such purposes - is this correct?

Are the DoD CAS Working Group Interim Gudance Papers available on the web?

I don't mind the debate.

I think we got off track. It was my belief that the interdivisonal cost (price from transferring division) needs to be included in the indirect base like a subcontractor's cost (price from subcontractor). We are not talking about indirect expense pools and their application, but the calculation of the indirect base. I don't mean to imply that interdivisional transfers are subcontracts, but for purpose of calculating the indirect base they could be treated the same as subcontracts.

total cost input base example (most common)

From the DCAA CAM Chapter 8 Cost Accounting Satndards

8-410.2 Illustrations

The following illustrations supplement those in paragraph 410.60 of the standard. They are to be used as a guide in determining whether a contractor's practices comply with the standard.

a. Problem. Division X excludes from its total cost input base, the cost of intercompany transfers from Division Y.

Solution. The intent of the standard is that all actions which represent the total productive activity of the segment should be included in total cost input. The costs of the intercompany transfers should, therefore, be included in the total cost input base used to allocate G&A expenses. Division X's exclusion of the intracompany transfers from the base does not comply with the standard.

I think the bigger issue is - can we use price from the transferring division as opposed to cost from transferring division. I think in certain situations you can use price, obviously those situations specifically exempting CAS as in 9903.201-1, those in FAR 31.205-26 (original poster said we can't), and I believe those described in FAR 31.1. FAR 31.1 does not exempt you from CAS but lets you take a modified CAS approach.

You will also happen to find interdivisonal transfers co-mingled with subcontracts in the DCAA Audit Program - E Subcontracts (and only there).

GSA asserts that "contract prices have been competitively awarded". I believe that this assertion was made by the courts as well in the ATA case - based upon the GSA website. This assertion made by the courts along with FAR 6.102(d)(3) Other Competitive Procedures statement that the "MAS program of the GSA is a competitive procedure" led me to think that these contract prices along with the required price analysis could be used to help meet the third standard of "adequate price competition" at FAR 15.403-1©(1)(iii).

I think your point that while inter-organizational transfers can be treated like a subcontract doesn?t mean that they are subcontracts is way too fine a point. Talk about a stretch. The direction to treat an inter-organizational transfer as a subcontract is stated upfront in 9903.201-1 -- CAS Applicability.

FAR 31.1 is called Applicability (31.102). Something is applicable or it isn?t.

You may very well have "full and open competition" and not have "adequate price competition" - although I can't think how; but I think it would not be unreasonable to think that "full and open competition" could result in "adequate price competition".

What is unreasonable with saying that GSA prices are the same or equivalent to prices that resulted from adequate price competition.

Couldn?t a result of competition be a contract, and couldn?t that contract be the result of the ?competitive procedure? described in 6.102(d)(3), and couldn?t those competitive procedures be the same procedures that resulted in ?[GSA] contract prices [that] have been competitively awarded? as found in the ATA Defense Industries case, and couldn?t those resulting contract prices be the same prices found in ?contracts that resulted from adequate price competition? as referenced in 15.403-1©(1)(iii)?

Couldn?t adequate price competition result from 6.102(d)(3)?

I am not sure that I follow.

Are you saying that the standard for adequate price competition is only at 15.403-1©(1)(i) and 15.403-1©(1)(ii), and that the standard for adequate price competition at 15.403-1©(1)(iii) is only referring back to the standard at 15.403-1©(1)(i) and 15.403-1©(1)(ii), and does not include the "competitive procedures" as stated in 6.102(d)(3)?

So, I should also assume that the GSA?s summarization of the ATA Defense Industries case that ?contract prices have been competitively awarded? is wrong, and in any event does not mean anything, because it does not meet the standards for adequate price competition at 15.403-1©(1)(i) or 15.403-1©(1)(ii).

From the GSA website:

As stated in the ATA Defense Industries case of June 27, 1997 GSA's procedures satisfy the requirement of CICA since the Federal Supply Schedule (FSS) contract prices have been competitively awarded based on price negotiations and evaluations prior to award of the FSS contract.

see 6.102(d)(3)

Would it be unreasonable for a contracting officer to make a determination that a ?price [for an item] is based on adequate competition? if the price of that item is at or below the price of a similar item on a GSA Schedule Contract? My question concerns 15.403-1©(1)(iii) where price can be determined to have been based on adequate competition if ?price analysis clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or similar items, adjusted to reflect changes in market conditions, economic conditions, quantities, or terms and conditions under contracts that resulted from adequate price competition.? Does a current GSA Schedule contract meet the definition of a ?contract that resulted from adequate price competition? for this purpose? Is this unreasonable?

I assume that you do not have an established practice to price inter/intra-organizational transfers, and that before this contract the affiliate did not contribute costs to your indirect base.

You may not have a problem.

I believe that the affiliate?s billings to you become part of your actual indirect base, just as a subcontractor billing would do.

I would look at 31.102 for the applicability of 31.205-26(e). If the conditions at 31.102 are met (the affiliate?s FFP is not based on cost analysis or requires the determination or negotiation of costs), then 31.205-26(e) is not applicable. You could get an advance agreement that clarifies this understanding ? probably not necessary.