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  1. First – I apologize if this post is repeated from elsewhere in the forum. I performed several keyword searches and read a number of posts and did not see it addressed. Background: FAR 52.216-7(e) requires two conditions for billing indirect costs (anticipated final rates, and mutual agreement). In my case, the Company’s Cognizant Agency is behind in reviewing/approving billing rates by years (and even further behind on final rates – no surprise there to anybody, I’m sure). We have indirect rate swings (both ways) in prior years that – when netted against each other - are material to the Company and have a greater risk of being de-obligated and going unpaid with the passing of each additional day. Our FY 2013 agreements extended into June 30 of 2014 and just expired. While the company submitted provisional billing rate packaged in early January, we have no response or indication of reviews and/or impending agreement issuances. The Company wants to bill true up invoices for prior years based upon our certified incurred cost submission rates. Many of our Federal clients will not pay the true-up invoices without an actual rate agreement. Overall, the cash shortfall for FY 2014 billings alone is in the millions. Questions: How does a contractor bill indirect cost on flexibly-priced contracts when there is no current, unexpired mutually negotiated indirect cost billing agreement upon as per FAR 52.216-7(e)(2)? E.g., is there another clause or provision or procedure of which I am not aware that allows a contractor to bill certified, submitted (and unaudited) final indirect rates (or course with the proviso that – should the audit find unallowable cost, the Company would repay for any amounts decremented) I have been considering submitting both provisional rate submissions and billing true-up notifications with “expiration language”, such as: “As the enclosed indirect cost rates represent the [Company’s] anticipated final rates under FAR 52.216-7(e)(1), [Company] will consider a mutual billing rate agreement to exist with [Agency] under FAR 52.216-7(e) for billing these rate prospectively and retrospectively unless [Agency] provides written notice to the contrary by [insert Reasonable Date Here]” I realize that – in legal parlance – a non-response would constitute “implied consent” should the Agency not respond in writing by the stated date. I am also not a JD and especially am not a Government Contracting JD, so - to that end, is implied consent enforceable against the Federal Government? From a equitability in contracting perspective, it seems terribly inequitable to the contractor to float the Government’s cost because they are unable to execute their charged oversight functions (reviews and audits) on a timely basis. As an aside, I know that there’s always the potential to request a COFD on provisional or final indirect rates as submitted, which would accelerate the Agency’s requirement to address the matter to 60 days and, if not addressed, can become a CDA claim. While this is technically a solution, the company risks its client relationships in doing this and it is not a preferred choice. Any thoughts or advice would be greatly appreciated.
  2. Given a conflict between the FAR and OMB Circular A-21, which one controls? Both are codified in the CFR. FAR 42.705-3(b.)(6) states that “predetermined indirect cost rates shall be applicable for a period of not more than four years. The agency shall obtain the contractor’s proposal for new predetermined rates sufficiently in advance so that the new rates, based on current data, may be promptly negotiated near the beginning of the new fiscal year or other period agreed to by the parties”. However, OMB Circular A-21(G)(7) states that “Federal agencies shall use the negotiated rates for F&A costs in effect at the time of the initial award throughout the life of the sponsored agreement. "Life" for the purpose of this subsection means each competitive segment of a project. A competitive segment is a period of years approved by the Federal funding agency at the time of the award. If negotiated rate agreements do not extend through the life of the sponsored agreement at the time of the initial award, then the negotiated rate for the last year of the sponsored agreement shall be extended through the end of the life of the sponsored agreement. Award levels for sponsored agreements may not be adjusted in future years as a result of changes in negotiated rates.”. Given a five year (one year base and four one year options) contract, at the end of four years, should the government then apply the newly negotiated indirect cost rates to the fifth year, as suggested by the FAR, or does the rate for the fourth year carry through the fifth, as suggested in A-21, here “If negotiated rate agreements do not extend through the life of the sponsored agreement at the time of the initial award, then the negotiated rate for the last year of the sponsored agreement shall be extended through the end of the life of the sponsored agreement.”. Reading the FAR, the predetermined rate agreement can’t extend through the life of a sponsored contract that lasts more than four years. Further, FAR Clause 52.216-15 (referenced by FAR 42.705-3(b.)(6)) states in part under paragraph (d), “Predetermined rate agreements in effect on the date of this contract shall be incorporated into the contract Schedule. The Contracting Officer (or cognizant Federal agency official) and Contractor shall negotiate rates for subsequent periods and execute a written indirect cost rate agreement setting forth the results.” And under paragraph (e), “Pending establishment of predetermined indirect cost rates for any fiscal year (or other period agreed to by the parties), the Contractor shall be reimbursed either at the rates fixed for the previous fiscal year (or other period) or at billing rates acceptable to the Contracting Officer (or cognizant Federal agency official), subject to appropriate adjustment when the final rates for that period are established.” The implication of this clause being that new indirect rates are negotiated each contractor fiscal year and subsequently applied to the contract. 52.216-15 also references FAR 31.3, which states that “Contracts that refer to this Subpart 31.3 for determining allowable costs under contracts with educational institutions shall be deemed to refer to, and shall have the allowability of costs determined by the contracting officer in accordance with, the revision of OMB Circular A-21 in effect on the date of the contract”. The question is, in light of seemingly conflicting guidance from the FAR and A-21, what happens to the predetermined final indirect cost rates in that fifth year (and potentially beyond)? Any advice would be appreciated.
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