Vern Edwards

If you are conducting an acquisition for the purchase and installation of a commercial product, then you are conducting an acquisition of an item of a commercial product, i.e., an item of supply. If you are conducting an acquisition for the installation of a commercial product separately from the purchase of the product, then you are conducting an acquisition of a commercial service. I just made that up. Does it work for you?

Joel, I don't know the details of the methodology, and I don't see any point in speculating or inquiring further. Vel came with a question and has since said that he got helpful information. If anyone else has helpful information they should offer it. Otherwise, I don't see much that is useful to anyone in what is being said, and I see a lot that seems confused and confusing.

From FAR 16.601: Now why couldn't rent be charged as an "other direct cost"? I don't think the issue is whether rent could be materials. I think the issue is whether the rent for the facility is a direct cost of the contract.

@ji20874Have you read the Mortenson decision mentioned and cited above? The contract in that case was fixed-price, and "notions" of direct versus indirect costs were relevant in that case. I think you're wrong to say that the distinction between direct and indirect costs is wholly irrelevant to the Government. The court quoted a well-known passage from Cibinic and Nash: The court ruled that the fixed cost component of the field office indirect costs could not be included in the price adjustment. I think your statement, which I quoted above, is wrong. I think that in the settlement of adjustments to FFP contracts the distinction between direct and indirect costs can be highly relevant. If you think I am wrong, or that I misunderstood you, or that I took you out of context, please straighten me out.

Vel seems to have gotten the information he wanted. What topic is now under discussion? What question is being answered? What confusion is being eliminated?

What does that mean? What do you mean by "facilities"? What costs are you going to charge?

And everyone breathed a sigh of relief.

Keep in mind that the injunctions issued by the two courts were preliminary, not permanent. According to the most recent decision, the government has been enjoined from "enforcing... the mandate..." I'm not sure whether that means enjoined from inserting the clause, enforcing the clause, or both. Stand by for instructions from your superiors. Until you get them, keep doing what you were instructed to do.

Anyone who reads the ASBCA's Mortenson decision, the ASBCA's reconsideration decision, and the three write-ups of those decisions in The Nash & 'Cibinic Report, one of which includes remarks from Mortenson's attorney, will confirm the truth of the above quote.

Maybe M.A. Mortenson Co., ASBCA 40750, 97-1 BCA ¶ 28623.

During oral argument the government's attorney told the court that the government did not dispute the contractor's assertion that the service was not commercial.

The plaintiff's attorney asserted in his brief that the service was not a commercial item as defined in FAR, and gave reasons for his assertion in the brief and in oral argument. The court agreed that the service was not commercial, but its reasons for doing so are unclear. It may be that they agreed with the attorney's argument. It may be that they misunderstood his argument and thought that contracts for services are not contracts for commercial "items."

@Vel Contact me privately via the mail feature at this website and we can discuss how I can send you the Nash & Cibinic articles about fixed field office overhead.

I think (I'm not sure) that the problem you are asking about is the problem of unabsorbed overhead in connection with a delay. If so, see if you can find a copy of Administration of Government Contracts, 5th ed., by Cibinic, Nagle, and Nash, and read the discussion of "unabsorbed overhead" in pages 647-53. Also, if you have access to The Nash & Cibinic Report via Westlaw, the authors have written several articles about how to handle fixed field office overhead costs when pricing equitable adjustments. Other resources include: GOVERNMENT CONTRACTING AND TREATING EXTENDED FIELD OVERHEAD AS A DIRECT OR INDIRECT COST, https://www.floridaconstructionlegalupdates.com/government-contracting-and-treating-extended-field-overhead-as-a-direct-or-indirect-cost/ Extended field overhead/delay, http://www.delaydamages.com/delay-damages/extended-field-overhead/ Recovery of Unabsorbed Overhead, http://kendall-dinielliconsulting.com/services/unabsorbed-overhead-eichleay-formula#:~:text=When the government%2C by direction,contract but for the delay. Unaborbed Home Office Overhead, http://www.delaydamages.com/delay-damages/unabsorbed-home-office-overhead/ Project time extensions and the relational impact on unabsorbed home office overhead, https://www.hka.com/project-time-extensions-and-the-relational-impact-on-unabsorbed-home-office-overhead/ Calculation and recovery of home office overhead, https://www.pmi.org/learning/library/calculation-recovery-home-office-overhead-8913 Understanding unabsorbed home office overhead, https://www.ctconstructionlaw.com/understanding-unabsorbed-home-office-overhead/

Good observation. Nationwide (national) injunctions by district courts seem to have become more popular since 2016. (I wonder why?) So why didn't the court issue one in this case? The judge explains his decision to limit his preliminary injunction in pages 27 and 28 of his decision. https://cdn.cnn.com/cnn/2021/images/11/30/commonwealth_of_kentucky_et_al_v_biden_et_al__kyedce-21-00055__0050.0.pdf For a definition of injunction, see Black's Law Dictionary: The entry goes on to list 25 types of injunctions, including preliminary injunction: For general background information about preliminary injunctions, temporary restraining orders, temporary injunctions, and permanent injunctions, go to: https://www.law.cornell.edu/wex/injunction. See also Rule 65 of the Federal Rules of Civil Procedure: https://www.law.cornell.edu/rules/frcp/rule_65. Curious about how mere district court judges can issue nationwide injunctions? For an informative discussion of nationwide injunctions, go to Judicature and read "One for all: Are Nationwide injunctions legal?" by Amanda Frost and Samuel Bray. https://judicature.duke.edu/articles/one-for-all-are-nationwide-injunctions-legal/

I interpreted that to ask whether the government would compensate the contractor for taxes that it must pay, which is why I answered the way I did. Did I misunderstand the question? Meanwhile, here is some worthwhile reading: The Doctrine of Federal Exemption From State Taxation, https://law.justia.com/constitution/us/article-6/08-federal-exemption-from-state-taxation.html

See FAR 31.205-41, Taxes.

My advice is that you contact the contracting officer for your prime contract, tell them what you plan to do, and ask for guidance. Asking the prospective subcontractor is not enough, because you must answer to the contracting officer for your prime contract. If you receive guidance, write a letter to the contracting officer describing your understanding of it and send it to the contracting officer with a copy to the depot subcontractor.

You are a prime contractor to a DOD prime contractor? I don't understand that.

@GovBizYou must provide context for your questions! I have no idea what kind of procurement you're talking about. You write as though we've been discussing your situation for days and know all about it. The only rational answer I can think to provide to your two questions is: It depends. Your post is astonishingly thoughtless.

Mainly time and complications if you ultimately lose. Otherwise, no particular "disadvantage." See the following: Override of CICA Stays: A Guidebook, Version 3, June 2008 https://www.jagcnet.army.mil/Sites//contractandfiscallaw.nsf/0/9DE4D2C744ABFC3F85257B42004536AC/$File/CICA Override Guidebook _June 08_.pdf Ensuring CICA Stay Overrides Are Reasonable, Supportable, and Less Vulnerable to Attack: Practical Recommendations in Light of Recent COFC Cases, 2008 https://heinonline.org/HOL/LandingPage?handle=hein.journals/airfor60&div=5&id=&page= Army Contracting Agency: CICA Automatic Stay Override Guide, April 2004 http://federalconstruction.phslegal.com/wp-content/uploads/sites/116/2007/09/CICA_Override_Guidebook.pdf Google CICA Stay Override for more.

What you are talking about is similar to idea of a military table of organization and equipment (TOE). See https://history.army.mil/html/forcestruc/tda-ip.html When I started out in contracting in the 1970s, when we began contracting out military functions, it was called a "contract manning table." It was either prescribed in an RFP or offerors were required to propose it. It's what you do when you are hiring a contractor to perform a function over some period of time rather than to complete a fully specified task. Today, such things are inconsistent with the doctrine of performance based acquisition. When the government began awarding firm-fixed-price contracts for performance of functions instead of just well-specified jobs, agencies included "manning tables" in contracts that specified job categories and numbers. See e.g., To Rowley & Scott, Comp. Gen, Dec. B-169946, Oct. 15, 1970, about a contract for food services at an Air Force Base. They were a pain in the neck, what with the need for daily reports about who showed up for work and who didn't, and deducting for absences. Performance based acquisition discourages the use of such manning tables. But what else can you do when you have to contract for the performance of a function over the course of a year in which the work ebbs and flows and it's not easy to get workers quickly on an as needed basis? Basically, you're hiring a workforce and specifying who and how many you want in it. The government has never thought clearly about the specification and acquisition of services.

That's what I have been told. It shows in the oral argument.

@joel hoffmanI didn't use the word "competency." I spoke mainly about the responsibility of contracting officers and recommended listening to the oral argument at the Federal Circuit. The GSBCA was history in 2006 and, if I remember correctly, its authority to decide IT protests ended in 1995, 25 years ago. That is ancient history. You and I are ancient, too. If we're going to tell war stories we should tell ones that have some bearing on now. Otherwise, young people will think Wifcon is Geezerville.

You should start a GSBCA thread. Of course, it doesn't exist today and hasn't existed since 2006. Why not post something other than reminisces of the dead past—something informative, that would help people learn? Isn't that what people say we're supposed to do? https://www.cmaanet.org/sites/default/files/2018-04/THE NEW BOARDS OF CONTRACT APPEALS - ARE THEY STILL RELIABLE.pdf https://papers.ssrn.com/sol3/papers.cfm?abstract_id=521042 https://core.ac.uk/download/pdf/235402767.pdf https://www.wardberry.com/govcon/contract-disputes-act-forum-selection/ https://www.hklaw.com/en/insights/publications/2018/08/cbca-issues-new-rules-of-procedures