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Neil Roberts

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    Providing comments and references for educational purposes. No legal advice is given or intended.

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  1. 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?
  2. @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.
  3. 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.
  4. 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.
  5. @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?
  6. 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.
  7. @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
  8. @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.)
  9. @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
  10. You may certainly argue that. I argue that GSA MAS contracts (not the task order) may be negotiated contracts regardless of whether or not cost or pricing data is called for or submitted. I wonder if government files in the vast majority of GSA MAS contracts mentions "negotiation." My reading of articles about how GSA works is that it negotiates the prices.
  11. @CuriousContractor_22, it would have been better if your post included the total value of the task order, information about relevant contract terms and conditions of the parent company contract/task order (including if there was a small business subcontract plan) , whether or not the parent or the subsidiary have government approved accounting systems and whether there are policies at the parent or subsidiary regarding transfer pricing of commercial items under government contracts. Assuming the subsidiary is the subcontractor, it appears to me that the subcontractor may be guided by the parent as to aspects you posted about.
  12. @CuriousContractor_22 For a pro forma teaming agreement example, see https://www.princegeorgescountymd.gov/sites/default/files/media-document/dcv4443_teaming-agreement-template-prime-role-pdf.pdf
  13. @CuriousContractor_22, 1. I am not entirely sure whether or what factors/forces are in play (i.e.,taxes, cost accounting standards, etc) with respect to earned profit that may drive a specific result relating to the subsidiary status as an independent company. Someone else would have to answer that. 2. I would expect the parent or subsidiary that holds the task order would issue a purchase contract to the other party. A teaming agreement in my world of government contracts is something that is executed at the proposal stage and specifically states it is in contemplation of a contract between the parties when one of the parties is awarded a contract. This purchase contract should specify all the particulars about the work that the "subcontractor" is required to perform, pricing, terms and conditions, schedule, quality requirements and any other relevant requirements.
  14. @CuriousContractor_22, My argument in response is as follows: Task Order named awardee should request an arms length proposal from the subcontracted party and negotiate the fair and reasonable rate to be paid for its work by Task Order awardee. Any applicable GSA MAS existing rate for the subcontracted party should be considered in coming to such agreement with the understanding subject GSA MAS rate probably has profit in it and the subcontracted entity proposal and the agreed to rate is to be at cost unless otherwise permitted per FAR 31.205-26. A teaming agreement is irrelevant unless it was the task order awarded party.
  15. In my experience, that above is unlikely to fly well with major prime contractors for various reasons including: 1. don't have time to deal with addressing this as there may be schedule impact to the prime for doing so (delay in placing the purchase contract with you due to company required lengthy preparation to negotiate with you over the status of perhaps a hundred or more clauses). 2. "Business" clauses are not prohibited by a prime contract for inclusion in purchase contracts but are not included in the prime contract. Think of it as the business boilerplate often found in non-government contracts. 3. The above position runs the risk of simply going to the next bidder who may have a higher purchase price. Factoring in the time it would take to deal with you in what is seen as a normal business practice by the prime (with dubious results probable), you may no longer be best value. Some exceptions are acceptable provided adequate rationale accompanies it. For your first government contract review, it seems to me your company should engage an experienced subcontract person to review it alongside you. If you wish to proceed with the above suggested approach, please be sure you have your top management's approval so that they are not surprised (and you are not embarrassed or at risk) by any phone call from a prime contract executive or program manager regarding the above suggested approach and your company's viability as a supplier.
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