here_2_help

I'd like to add that the cost does NOT need to be an indirect cost. The notion that there must be a specific contract requirement to create a direct nexus is misinformed. Such a position confuses the concept of a "beneficial or causal relationship." (Emphasis added.) See FAR 31.201-4. CAS 402 (48 CFR 9904.402-30) defines a direct cost as follows-- For example, a vaccination incentive associated with an employee who is assigned on a full-time basis to one and only one contract could conceivably be a direct cost of that contract. It is the contractor's choice. The government contracting officer can decide whether they believe the cost to be allowable; but if they believe it is not allowable, they have the burden of proof to point to the regulation making it unallowable.

Bingo! If the contractor has one single employee in the facility, then it is not an idle facility. There may be excess capacity, but that's a different concept, the allowability of which is determined differently. Generally speaking, I would expect the more specific cost principle at 31.205-17 to trump the general principle at 31.201-3. (See 31.204(d).) But it seems various judges have the own approach to cost allowability analyses, so who knows?

You didn't specify the socioeconomic status of the entity that has the 70% share of the new business. You didn't specify the relationship between the WOSB and the new business.

This is the single most important concept that so many people get wrong. Both government and contractor. Vern's sentence should be put on T-Shirts and handed out to Cost/Price Analysts and contract auditors everywhere.

Thank you, as always

Hey all, just wondering who the current OFPP Administrator is right now? How's that going for us?

Sticking this here but if Bob believes it's a better fit elsewhere, feel free to move it. Link to article.

Fraud requires intent, which is a matter for a judge or jury to decide. A practitioner should never use that term. I'm just saying that I agree with Joel's advice. Second, check out Kearfott Guidance, ASBCA No. 55626, June, 2011. Less on point (but interesting) is Information Systems & Networks Corp., US Court of Federal Claims, May, 2020. After you've looked at them, then obtain competent legal advice.

OTAs are terrible and OTAs via consortia are worse than that. I finished dealing with a recent OTA that required the contractor to have an adequate accounting system as a condition of award. The pricing was evaluated via cost analysis (FAR Table 15-2 format was required). DCAA was called in to evaluate the contractor's proposed costs. The awarded contract included multiple FAR clauses, including 52.216-7. It was an OTA in name only, and I'm sure the CO was proud that they could be so innovative.

First point is that I don't know your costs well enough to form an opinion regarding the appropriate G&A allocation base. Second point is that the Ford Aeronutronics decision established that the contractor has an affirmative responsibility to choose the correct G&A allocation base that best represents the activity being managed. Further, if the contract mix is such that a TCI base is distortive, then the TCI base should not be used. What is the correct allocation base for your company? See my first point. Third point is that you can't have two sets of bid rates, one using the single element G&A base and the other using the TCI G&A base. You have to have one bid rate. HOWEVER, the contracts you won will have the current G&A base used to calculate the G&A rate to be applied to those contracts; the bid rate is now irrelevant. Further, since you have changed your G&A base (and resulting rate) from the one used to price those contracts, you may be entitled to an equitable adjustment in contract price (assuming that the DCAA required you to change your base). I could go on and on. Bottom line is that you need to hire some good government accounting folks, or consultants, ASAP to help you with your issue(s). This is a very complex accounting topic involving CAS and FAR and you won't be able to logic your way through it, in my opinion. Hope this helps.

The BLS escalation rate is (unsurprisingly) associated with labor (salary & wages), right? Does the Green Book cover the same thing or does it cover something else? What costs are you applying the escalation factors to--labor only, or labor plus something else? Regardless, it seems to me that whatever escalation factor you get will be the result of whatever you negotiate. As with all negotiations, I would start with the higher value (6.8%) and see what you can obtain. What would your bottom-line break-even price be (regardless of how you get there)? At what point would you decline the option because the price was too low? My two cents.

The CO doesn't get to approve the contractor's cost accounting practices; however, the CO gets to determine what costs will be accepted in the contract price (or reimbursed). The contractor has appeal rights. If the contractor performs multiple contracts, the logic breaks down. A cost that benefits multiple cost objectives is likely to be an indirect cost, not a direct cost. Also, if a particular CO insists that facilities cost must be indirect when the contractor had elected direct allocation treatment, then the contractor should execute 52.230-7 in Section K of its proposal.

There is no problem for a non-CAS-covered contractor to change its accounting practices (well, other than compliance with Truthful Cost or Pricing Data requirements). The former practice was to charge the cost of facilities as an indirect charge; the changed practice is to allocate facility costs to benefiting cost objectives (contracts) based on occupied square footage, assuming that certain employees charge only one contract for the majority of their time. This can be done.

Is the contractor subject to Cost Accounting Standards?

From DCAA Contract Audit Manual (CAM) Chapter 12. (Emphasis added.)

There's that pesky word again.

Sounds as if our OP has received the advice they were looking for. So this post is not aimed at Vel; it's aimed at Joel, since he called me out and invited me to correct him. Joel, notice the part I bolded in your post (above). You yourself used the word "generally." That word implies exceptions, doesn't it? The fact of the matter is that I do not know whether the costs in question are direct or indirect costs for the contractor. Only the contractor knows. And I believe the FAR is permissive in this area, only requiring that the contractor must be consistent in application after making its decision regarding how the costs are to be treated. I've been doing this thing I do for nearly 40 years now, and I will assert that, based on my experience, the direct vs. indirect decision is more challenging and more nuanced than anybody outside of accounting would believe. Allowable vs. unallowable is an easier call to make. So, no. I don't know how the costs in question are treated and I don't believe you do either. You can't -- because you are not the contractor.

Wondering about those contracts where the parties agreed to incorporate the vaccine mandate clause (or where the mandate clause was added unilaterally). Can that clause be enforced, given the injunction?

It's hard to see how it would be, absent a contract clause that invoked it. Was that your point?

Maybe I'm missing something (as usual) ... but we're not talking about the original contract award any more, right? We're talking about a non-competitive contract price adjustment based on government-caused delay (defective drawings). If I'm right then I agree a new cost analysis and price reasonableness determination must be made. To the original question, the consistency requirements pertains solely to cost accounting practices and not to how prices are determined and billed. The latter is a matter for negotiation. Or so it seems to me.

Scathing and quite on point.

Adding for the benefit of all -- There are certain circumstances where it is literally impossible for a contractor to comply with the prescriptions found in the FAR or the travel regs. I first experienced this situation when we were dealing with FUDS (formerly utilized defense sites) in the wilds of Alaska. There were places where people wouldn't take credit cards or even cash. What they wanted was groceries -- a barter. In other places, no lodging was available, at any price. We had to improvise. In those circumstances, an understanding CO was key to negotiating employee per diem payments that were acceptable to the employees and both contracting parties. When the auditors showed up and were befuddled by what they found, the CO backed us up. My point is ... not every answer is found in the regulations.

Note that special or unusual situations are fairly well defined in the travel regs. It's not something that I would expect a CO to assert during negotiations, unless circumstances matched or were close to what the regs say.

No. The CO lacks authority to direct the contractor's cost accounting practices. This is particularly true where the FAR states that a contractor has discretion to choose its own practices, as it does in the sentence you quoted. The contractor should price its proposed costs in accordance with the cost accounting practices it intends to use during performance, as required by 9904.401 (CAS 401). That is not to say that the CO can't negotiate prices based on what they believe is reasonable. But direct the actual practices that a contractor uses to reimburse its employees for travel expenses? No.

It's found in the FAR, not the JTR. 31.205-46 Emphasis added, of course