here_2_help

Labor laws, including overtime rules, vary by state. The contractor will be expected to comply with applicable laws and regulations. Regardless of what the government negotiates, the contractor will (or should) incur labor costs in compliance with the rules in the locality in which it is working. Trying to establish rules such as "reimbursable work starts when the contractor sets foot on the site" may be contrary to the legal reality. To be clear, that position may work when the contractor is commuting to the site, but not when the contractor is traveling to the site.

Re: the solicitation It's been a long time since I had to respond to a solicitation, but this one seems ... off-kilter. I would rate it a 4 out of 10. It's clear. It's clear that this one would not be something I would respond to. The synopsis says they "require[] a Facilities Maintenance Services person" but the PWS details somebody who does a heckuva lot more than just maintenance services. The right person needs to be able to operate a brand-specific building maintenance system, install new and replacement HVAC and process equipment, have the ability to read and interpret technical drawings, schematics, and manuals (of an unknown nature), must possess an EPA certification in HVAC plus an HVAC technical certification from an accredited institution (which I assume would be a community college but it's not specified). Plus maintain accountability of government-furnished materials. That's just the "required stuff". In addition, it would be desirable (which may be several unstated evaluation factors) to: have experience with Powers Process Control Language (whatever that is), have a certification in building automation programming, have a BACnet Operator certification, have an electrical certification, and have experience with control system integration. All that screams far more than simply a "Facilities Maintenance Services person". It makes me think they are looking for a pseudo-employee to basically take-over the entire HVAC system. If I were considering responding to this, I would pass. I would assume they tailored the requirements to the individual they already want to hire contract with. I would guess they know someone who recently departed that exact same position; either through retirement or other means. I wouldn't waste my time or funds trying to win this opportunity.

In the podcast, Vern pitched his recurring them of "mastery" -- a truly worthy goal for all of us. After 40 years of being in this environment, my sense is that less than one percent of all acquisition professionals want to aspire to mastery ... and less than one-tenth of that amount will ever reach it. The rest will wait to be told what to do.

That is always a worthy thing to worry about. My feeling is that, so long as the supplier does sign within a reasonable time then you should be okay, especially if you can show you are checking the list of parties excluded (or whatever it's called today). However, if you never obtain a signature, then yes, I would think you would be at risk for a finding. Relying solely on annual reps & certs would not be sufficient, in my opinion.

Also see FAR 31.205-7 ("Contingencies") especially ( c )(1)

The OFPP Administrator better get on this! Remind me again ...who is the Administrator?

Seems to me that the Army intends to compete each individual task order anyway, Vern. I don't see any time savings; in fact, I see duplicate efforts (one competition for the 13 awardees; a 2nd competitive for each task order). As to your second point, are you implying that the acquisition strategy is based on protest avoidance? If so, then that is ... sad.

I'm a bit confused so I'll ask, even though I know it's a naïve question. Recently, the Army awarded a $249 Million firm-fixed-price contract for architect and engineering services. Apparently, this is an ID/IQ contract award but the DoD Daily Digest Bulletin for 11 April doesn't expressly say so. It does say that bids were solicited via the internet. Thirteen bids were received and thirteen contracts were awarded. Each awardee "will compete for each order." Also: "work locations and funding will be determined with each order." Why? Why have firms compete for a contract when, just by submitting a bid, you get an award? Clearly there were no down selects; apparently no competitive range was established. All 13 bidders were winners … but winners of what? They were awarded a contract that means nothing because all 13 winners will still need to submit proposals for each task order. They were awarded a contract that is not relevant because there is no current obligated funding. (There was no mention if any guaranteed minimum amounts were awarded; pretty sure they were because they would have to be, right?.) Given the new administration's emphasis on reducing waste in acquisitions, I was wondering why do this? Is there not a more streamlined, straight-forward way to acquire architect and engineering services? Yes, naïve question, I know. For some reason, I felt compelled to post it. Thanks for letting me vent.

I bet there aren't 10 judges at the ASBCA, CBCA, or CoFC that would reach the same conclusion. Snark aside, I was involved in a similar matter a few years ago. The small business subcontractor was audited by a civilian audit agency, who identified unallowable indirect costs. We (subcontractor and me) argued that the contract was a T&M contract so the unallowable costs didn't matter. The subcontract was silent as to contract type. The parties proposed, negotiated, managed, reported, and billed using T&M labor category rates. Unfortunately, because the subcontract said that FAR Part 31 was invoked and that unallowable costs must not be billed, the arbitrator ruled that the parties' course of dealing was irrelevant and that the contract type was cost-type. Bummer for the small business. But also bummer for the prime and the customer, because the next year the subcontractor submitted an invoice for cost growth in the indirect rates (for which there was adequate funding available). Though painful, the situation more or less washed for the subcontractor. Point being, it's helpful for the contract to clearly identify the nature of the contract that the parties are forming.

This is perhaps something for which a discussion with a smart, experienced, attorney would be helpful. I'm not one. But if you want to use "other transaction authority" to award a contract, it seems to me that you should first look to the authority -- i.e., the enabling statute. What does it authorize? What does it prohibit? There may be a reason it is difficult to locate a sample contract.

During performance of the CPFF Task Order, how has the contractor been accounting for, and billing, the labor from the 1099 employees? Nobody can answer your question without knowing that piece of information.

Love this news. Thank you

DFAS frequently makes payment mistakes. Wrong CLIN. Wrong Sub-CLIN. Wrong ACRN. It's not really a huge deal. I think it is then up to the CO to correct DFAS's mistakes by pointing them out. Perhaps correct MOCAS? (Not sure about that.) Often, the contractor is asked to help reconcile invoices to payments.

I question the assumption that a wholly owned subsidiary is "a separate company [that] should be treated as a subcontractor." That is true only in very limited circumstances (see FAR 31.205-26(e) and (f)). In almost all cases, work performed by an affiliated entity under common control is a "make" not a "buy". See the definition at FAR 15.407-2(b).

What does your contract say? If nothing, then you don't have to comply unless you want to.

Your CO is unreasonable but what can you do? Nothing. Just keep following your procedures, trying to do the "right thing". Document your CO's direction. Then move on. Yes, this situation is pretty much exactly what contractors complain about: COs who are so risk-averse they reject consent over $4.00, causing the contractor to spend hundreds more dollars redoing the package. Or COs who claim victory when they save the taxpayers $4.00 while causing hundreds of dollars of extra spend. So what? The game is rigged against you but you have still chosen to play. Keep on playing, especially if your product or service helps the country in a significant way.

1. Maybe not. If the prime contract does not include 52.216-7 then there is nothing to flow down. If the subcontractor doesn't have any other government contracts that require submission of final billing rates, then I would argue it doesn't have to do so. 2. The requirements of 52.216-7 apply to the "M" part of the T&M contract; it does not apply to the "T" part, which remains fixed-price per labor hour. 3. If you have a FFP prime contract then subcontractor adjustments, if any, are absorbed by the prime. Credits are not passed on to the government, absent an allegation of defective pricing or fraud. 4. The prime is obligated to flow down all applicable clauses in its prime contract. Nothing more. Hope this helps.

Forcing one party to accept a contract seems an awful lot like unilateral formation to me. But I'm admittedly not an attorney

That's interesting. I didn't realize that a contract could be formed unilaterally. Back to the OP, I noticed 15 CFR 700.75, which states: That would seem to be the appropriate course of action here.

The contractor had a choice whether to accept the DX-rated subcontract, correct? It could have refused, arguing that it lacked capacity to meet the schedule. It chose to accept. The rest, it seems, is on the contractor.

Amazing news! How can we help?

As the CO, you would seem to have discretion.

In my experience, lawyers think most everything is privileged. Ask them to re-review their redactions to minimize what has to be protected while maximizing what can be provided. You have $$ riding in this.

What clauses are in your subcontract? Do you see 52.216-7 ("Allowable Cost and Payment") or equivalent? What billing instructions are in your subcontract? Assuming your subcontracts are already awarded, what relevant clauses, if any, did you put in them? Did you award cost-type subcontracts? What billing instructions did you give your suppliers? It's hard to give advice without more specifics.

Do you have contractual correspondence where the government has asserted deficiencies and associated payment withholds? If not, how do you know you will have any? If yes, can't you use the correspondence as the basis for your at-completion analysis?