here_2_help

I have heard of CPSR findings being inconsistent between different review teams. It's almost like they make this stuff up as they go along.

It depends on whether or not FAR Part 31 is applicable to the subcontractor's proposal.

Yes. Agreed. That's why Vern is correct. He identified the costs that must be reported in the Table. If the OP's costs are not those costs, then they don't have to be reported.

Vern is correct, in my view. Contractors may have incurred costs in advance of contract award. One reason might be to shorten the delivery schedule. Another reason might be because the contractor routinely builds to inventory so as to have a ready supply of whatever. If the costs incurred by the contractor pre-award have already been reimbursed (e.g., IR&D) then no need to disclose them.

DCAA used to perform "financial capability audits" fairly regularly, but I think those have gone out of style in recent years. Instead, the DCMA cost monitor typically requests financial statements. I don't know what DCMA does with them; I wonder who has the skillset to understand them.

A law firm's take on the decision

Don, see Subpart 31.1 "Applicability" especially 31.102. The decision appears to be stating that, since part 31 was required to be used to analyze the price, that somehow means it is now applicable to costs that are incurred and billed. I mean ... pretty much the whole decision just seems to be a stretch, doesn't it? Which is why I described it as "notable." It breaks new ground and goes places I've never seen before. Kind of like an ice road trucker at the end of winter.

This case was back before the Judge on remand from the Federal Circuit. It would be a shame if the Judge was reversed on appeal (again).

To me, Judge Lettow's analysis is fascinating. Here's something that caught my eye: I've never seen that argument made with respect to attorney's fees. The fees are not only direct costs (which has been a controversial position; contrast FMC Corp. at the Federal Circuit with Caldera v. Northrop and Boeing North American v. Roche), but they are also direct costs of a prior period! Wow! Now I have that argument in my back pocket for future use. If you want to read the entire decision here it is.

Bonnie Ross, Not really, but why wouldn't they? If the project work is time-phased by week or month, then it's really no big deal to chop up the weeks or months to conform to whatever "year" the prime is using. At least, that's how I see it. Again, indirect rates are applied solely on the basis of the (sub)contractor's fiscal year. Sometimes insurance premiums or other benefits costs are tracked on a calendar year. Those are about the only constraints I can think of. If the (sub)contractor invests in professional proposal costing/pricing software, all this can be programmed. Costs can be sliced and diced as needed.

Don, why do you find the decision notable? Is it because the CoFC found it had jurisdiction to hear the protest, or for another reason?

What do the pricing instructions say? Whatever you do, you will need to apply your indirect rates by contractor fiscal year, even if you then aggrege the costs by GFY or by contract year.

I really don't think a contractor needs CO approval for billing subsequent to the end of a contract PoP, except in the case of (a) CPFF Term, (b) FFP-LOE Term, or (c) specific funding tied to a Government Fiscal Year. At least, that's what I tell my auditors when we have discussions on this topic. So far, they have agreed.

Given the context, I'm going to guess "Notice of Contract Extension" but who knows?

Why do you believe that the end of a contract's Period of Performance precludes the billing of costs incurred after that date? What regulation or contract term prohibits such a practice?

Seems like you have an opportunity to ask the CO what their concerns are. If the CO doesn't want your company to let its employees work weekends get that direction in writing.

I have assisted UK-based companies before. The first thing I would want to understand is the company's value-proposition. I.e., why should a large prime contractor want to subcontract with you?

Not much harder in the world of government contract cost accounting than dealing with pensions. CAS 412 and 413 are ... challenging. To say the least.

Emphasis added.

There is no restriction on contractor work hours. However, there may be a restriction on reimbursing the cost of those hours. For example, 52.222-2 may limit payment of overtime premiums. There may also be concerns with uncompensated overtime worked by salaried, exempt, personnel (see 52.237-10). Generally speaking, the government should not want to manage how the contractor performs its efforts.

(Emphasis added.) Well, that's absolutely not correct in the slightest. See, for example, 52.216-7(g). Or 52.215-20(a)(2). Or 52.230-2(c) -- when applicable. Shrug. Somebody's stretching hard to support a weak position, and I suspect that position will not prevail if tested. But whatever. I'll add that, if I were a government auditor and somebody told me I couldn't perform an audit that a contracting officer had requested me to perform, my first thought would be to wonder what the contractor was hiding.

In my view, Vern is correct. The Class Deviation does not exempt the contract from the requirements of 52.216-7. The contractor must prepare and submit a timely proposal to establish final billing rates (commonly called an "incurred cost" proposal). The good news is, if that this is the only cost-reimbursement government contract the contractor has, the chances that DCAA will audit it are relatively slight. DCAA uses a "risk-based" approach for determining which contractor proposals to audit, and this situation will likely qualify as being "low-risk" to the government. Accordingly, I would expect DCAA to review the proposal for mathematical accuracy and completeness, and then issue a memo to the CO recommending that the final billing rates be established as submitted. (I assume the contractor has an adequate accounting system.) Even if DCAA decides to perform an audit, it's not the end of the world. If the final billing rate proposal was done well, with support available from the accounting system, there really isn't much to worry about. If, however, the contractor doesn't have a solid indirect rate structure and a decent accounting system, that might be another matter entirely. If that is the case, the contractor really had no business accepting a CPFF contract award in the first place, nor should the government have awarded it.

Maybe I'm out of line here (if so, tell me) but, in private industry, an cost/benefit analysis is sometimes made before modifying an existing contract and asking for consideration in return. In the government procurement environment, typically there are many sellers and only one buyer (monopsony). In the private sector, there may be only one (or a very few sources)--and letting the bargain originally made run its course may not be in the buyer's best interests if it results in non-performance by the seller. It may be difficult (or impossible) to find a replacement supplier and, at a minimum, doing so would disrupt program schedules. For example, in the global financial meltdown of 2008 - 2010, many Airbus suppliers were simply unable to perform to the terms of the original bargain. As a result, Airbus modified existing contracts (without consideration, as I recall) and did what it had to do in order to keep its qualified suppliers financially viable. I did a quick search, looking for support for my memory of the situation, and found this 2011 report. I recall there were several such actions taken; more frequently Airbus modified existing contracts to accelerate supplier cash flow and to increase contract prices. The consideration, if you will, was that Airbus could keep its aircraft programs on schedule and did not have to find and qualify and train new suppliers to replace the ones that went bankrupt. Just throwing this out here, because I think the different approaches are interesting to compare/contrast.

Vern's addendum pulls no punches, as has become the norm for him. I can only hope that somebody with the power to change things is reading his words.

I feel sorry for the person who filed the complaint. They need help.