Don Mansfield

Get well, Bob.

Right

Folks were citing the FAR. My point was that the FAR is not relevant to the issue.

If the contract doesn't obligate appropriated funds, it's not acquisition and the FAR doesn't apply.

You have a requirement exceeding $25,000 for an item to be specially manufactured for the Government in accordance with a technical data package (TDP). There are several manufacturers that are capable of performing the contract and you anticipate issuing a competitive solicitation. The bill of materials in the TDP requires the use of some brand name components in the manufacture of the item. FAR 11.105 states: Are you required to justify the use of the brand name components and post the justification? Assume the sum of the brand name components exceeds $25,000.

Additionally, I don't think using a noncost incentive would change the contract type from T&M to something else. For example, the contract type remains the same when using noncost incentives in firm-fixed-price contracts and fixed-price contracts with economic price adjustment. See FAR 16.202-1 and FAR 16.203-1(b).

If the direct labor is not for the work required to increase retention (i.e., it's for performing the contract requirements), then I agree that you don't need a constraint.

Wouldn't you want to put some type of constraint on hours or price, above which the incentive would no longer apply? For cost reimbursement contracts, a cost incentive or constraint is required if the contract is going to contain an incentive on something other than cost. Given the "best effort" nature of the T&M contract, I would think you'd want the same type of safeguard.

Do you think that, by definition, a charge of profit/fee on a subcontract is an excessive pass-through charge? That would be wrong. Including the cost of subcontracts in Block 14 of the DD Form 1547 when developing your prenegotiation fee objective would be correct. I would only exclude it if the prime contractor's efforts provided no or negligible value. Alternatively, leave it as is and assign a lower-than-normal value for Management/Cost Control on the form.

Really? FAR 16.601(b) says: Doesn't say anything about fee. I also looked in both FAR 52.212-4, Alternate I, and FAR 52.232-7 and did not see anything about payment of fee.

The contractor used weighted guidelines to come up with their proposed fee?

I'm confused. Time-and-materials contract with fee? I thought the hourly rate included profit.

She said the services could not be ordered under an existing contract.

Let's work on your scenario. Before charging fee, the prime has to negotiate fee with the Government--correct? This would start with the prime proposing an amount of fee. Is the contractor's proposed fee expressed as a percentage of its costs? Or just an amount that is independent of proposed costs?

Good, now you only need HCA approval to use SAP (see DFARS 218.270(b)). With very few exceptions, a precondition to any contract award is that the prospective contractor meets the standards at FAR 9.104-1. This is not about evaluation factors (although your answer will affect evaluation). If the client will be happy as long as the contractor meets the general standards of responsibility, then evaluation and award can be short and sweet. But if the client wants to apply criteria to determine which one of the multiple prospective contractors is best, then evaluation and award will take longer.

Wouldn't they need that evidence to determine that the product in question was "sold, leased, or licensed to the general public"?

I didn't say the provision did not require submission of "prices at which the same product or service or similar products or services have been sold in the commercial market"--it clearly does. We part ways when you say that contracting officers will necessarily use that information to determine commerciality.

That's good. You can use SAP under FAR 13.500(c)(2). Is the client part of DoD? Let's say you have 10 prospective contractors that meet the general responsibility standards at FAR 9.104-1 and they have all proposed a fair and reasonable price, do you care which one gets the contract?

I think your assumption--that pricing information has not been required for the commerciality determination--is flawed. Consider the definition of commercial service: Wouldn't one need to know "prices at which the same product or service or similar products or services have been sold in the commercial market" to determine if a source was proposing terms and conditions similar to those offered to the Federal Government? Wouldn't one need to know "prices at which the same product or service or similar products or services have been sold in the commercial market" to determine whether a service was based on market prices? In some cases, pricing information is relevant to determining commerciality. In some cases, it's not. How a contracting officer uses pricing information to support a commerciality determination--if at all--will depend on what criterion they use to support a positive determination. Now if you are going to claim that the provision language inserted in the final rule now requires DoD contracting officers to use pricing information in all commerciality determinations, bless your heart. I wish you luck in convincing anyone that's what it means.

1. Can the services be ordered under an existing contract? 2. Do the services facilitate defense against or recovery from cyber attack? 3. Assuming they proposed a fair and reasonable price, would any contractor that met general responsibility standards at FAR 9.104-1 be sufficient?

So do you accept that--according to DFARS 234.7002(d)--pricing data are not relevant for determining commerciality for major weapon systems?

Take a look at DFARS 234.7002(d). Do you see anything about prices? In any case, the provision requires submission of pricing information. It doesn't limit what the Government can use it for.

I recently started watching YouTube videos of First Amendment auditors. They will typically go to a public place--like a post office--and start filming, which they have a right to do. Like moths to a flame, public employees will begin harassing them and telling them they can't film. If in a post office, the auditors will point out their right to record is stated on the regulations posted on the wall of the building. This is usually not enough to convince the now agitated public employees, so they call the cops. When the cops come, they start telling the auditors that they can't record video because it's upsetting people--some even threaten arrest. The auditors respond by saying that their first amendment rights take precedence, which is correct. If in a post office, the auditors will also add that the cops don't have jurisdiction on Federal property. Ultimately, the auditor will typically demand to speak to the cops' supervisor. The supervisor shows up, explains to their cops and the public employees that the auditors are exercising their Constitutional rights and there's nothing the cops can do. The auditor thanks the supervisor and goes back to recording. But everyone is still pissed at the auditor. After watching a number of these videos, I realized that Federal contracting is no different. There are a lot of folks at the working level who don't know the rules and operate based on gut instinct. Even when confronted with their own ignorance, they are not always willing to admit fault or change their ways. The cops in the videos are like many contracting officers--they have no clue about the limits of their authority. The supervisor is like the rare person in the contracting office who actually knows the rules. https://youtube.com/@bayareatransparency1722?si=qAGgXPA_g808gDyR

Given the explanation in the final rule, I read this as-- 1. Information that is adequate for determining commerciality, and 2. Information that is adequate for evaluating the reasonableness of price. Two different sets of data for two different purposes. The first set does not include pricing information. I think you are assuming that your interpretation is the only reasonable one.

Thanks!