Neil Roberts

My take is federal money + federal law = federal prosecutor, federal court

Yes, but for other readers looking to simplify, why read 4 pages to get a basic understanding of the two concepts. Also, it turned out that the difference between a bribe and a gratuity was irrelevant in that the decision holds that the federal law did not apply to the charge of gratuities to local or state officials. But it is an interesting decision that can peak ones interest and question it.

Discussion of bribe vs. gratuity https://criminallawdc.com/dc-fraud-lawyer/bribery/illegal-gratuity/

@Ehughes, what commodities are the concern?

@formerfed, thanks.

@formerfed, the DOE Acquisition Letter site https://www.energy.gov/management/acquisition-letters shows this 2002 Letter as "archived." Is there perhaps now a DEAR regulation? There have been changes over the last 20 years. Wth analysis, maybe it is still good rationale. I could not find what "archived" means.

The poster did not seem to say anything about the price of the other bidder having a wide variance, or quality or performance deficiencies. Did I miss something?

@Fara Fasat, my statement was made regarding an earlier comment in this thread by Joel that was not specific to commercial items, and neither was my comment. With respect to a prime contractor awarding a "negotiated contract" after solicitation responses resulted in adequate price competition, I find that to be a slippery slope. Negotiated contracts are subject to cost of pricing requirements per FAR 15-403-4...if your award changed specific solicitation requirements, it may be viewed that adequate competition was adversely affected and, been unfair to other bidder(s). As a prime contractor, even using the terms "negotiated contract" for an award over the cost or pricing data threshold tends to invite Government scrutiny and questions where you are not complying with cost or pricing data requirements.

I would be concerned with the previous comment regarding negotiating with either of the suppliers because negotiated procurements can be viewed as not exempt from cost or pricing data.

Perhaps you can elaborate on this...you are in compliance with what FAR requirements, what does similarly situated mean, did you have a proposal from the subcontrator and if so, what did it propose.

@ChrisR, are you saying that none of these costs you wish to recover are classified as general an administrative costs or overhead in your company's cost accounting system and that each is classified in your company's cost accounting system as wages and fringe benefits as described in paragraph (d), of the clause, and/or the accompanying increases or decreases in social security and unemployment taxes and workers’ compensation insurance?

I am contending that it is not government property so they should not get paid. Then it is up to the contractor to deliver conforming sod that is accepted in order to get paid.

@EGovCon, based on what looks like an "official" GSA blog site, the plan would only be effective on new orders. You can follow up by contacting as indicated to ensure it applies to your situation .https://buy.gsa.gov/interact/community/6/activity-feed/post/8ab1cd64-028c-444c-a14d-b43cf288771c/Updated_Model_Subcontracting_Plans?utm_medium=email&utm_source=govDelivery

@FrankJon, also see United States Code (USC), 10 USC 2326 entitled, Undefinitized Contractual Action; restrictions at https://www.govinfo.gov/content/pkg/USCODE-2010-title10/html/USCODE-2010-title10-subtitleA-partIV-chap137-sec2326.htm (this was the law as of 2010. It was repealed in 2021 and relocated to different USC section and may have been amended in some way thereafter. Still working on it. It is somewhat complex to run it down in its final language of today, if it was subsequently changed. Still working on it but I hope you get the picture about the top level requirement related to undefinitized contractual actions is federal law approved by Congress and the President, which then is "interpreted" and approved for FAR as a regulation.)

@FrankJon, does this shed any light for you? https://www.federalregister.gov/documents/2023/05/25/2023-11139/defense-federal-acquisition-regulation-supplement-undefinitized-contract-actions-dfars-case