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  2. I'll listen when time permits. In the meantime, just looking at the title, "Risk Aversion Impedes ___ Development" makes me think irony is dead to the author(s). Of course it does. The entire acquisition system is based on risk aversion. Anytime somebody tries for boldness (e.g., Kelman) critics spring up from everywhere to snipe at the ones trying to change the culture.
  3. Today
  4. I posted a DoD article entitled: Risk Aversion Impedes Hypersonics Development. There is a 44-minute video that discusses ways to acquire things. I watched it last night while I was updating the Home Page. I thought it was very interesting and some aspects of the video upset me. If you listen to the entire video, think of this: In 1960, the CIA awarded Lockheed--after a design competition--a contract for an airplane that could reach Mach 3.2, flew at up to 90,000 feet, and was equipped with a stealth design. This airplane had its first successful flight in 1962 and achieved its goals. The purpose of the plane was to overfly the USSR and take images. Because of political reasons, this airplane never flew over the USSR and was discontinued in 1968. That CIA airplane is still the fastest and highest flying manned, air-breathing aircraft that was ever built. Derivatives of this airplane were used by the Air Force until 1998 and then that program was aborted. Now, years after NASA had its own hypersonic program, we have a government official telling us we rested on our laurels and now are in a competition for the development of hypersonics. In 1969, NASA landed humans on the moon. After a few more landings, that program was cancelled. We now hope to compete with other countries and land on the moon in the 2020s. In the 1980s, the Department of Energy, began development of the Superconducting Super Collider in Texas. Part of it was built before the program was killed by Congress. Of course, we then allowed a smaller collider to be built in Europe. If you've heard of the achievements at CERN, that is the smallre European collider that was built. Now, we've squandered trillions of dollars on other things that never helped any citizen of our Country. If you listen to this video, tell me what you think of the video.
  5. Yesterday
  6. Visit https://www.fpds.gov/help/Type_of_Contract.htm The following apply to all Awards and IDVs A Fixed Price Redetermination B Fixed Price Level of Effort J Firm Fixed Price K Fixed Price with Economic Price Adjustment L Fixed Price Incentive M Fixed Price Award Fee R Cost Plus Award Fee S Cost No Fee T Cost Sharing U Cost Plus Fixed Fee V Cost Plus Incentive Fee Y Time and Materials Z Labor Hours The following apply to IDVs only: 1 Order Dependent (IDV allows pricing arrangement to be determined separately for each order) The following apply to Awards only: 2 Combination (Applies to Awards where two or more of the above apply) 3 Other (Applies to Awards where none of the above apply)
  7. On the SF30 form used for contract modifications, Block 1 ways "CONTRACT ID CODE", and the instructions for filling out the SF30 on page 2 says "Insert the contract type identification code that appears in the title block of the contract being modified." What is the SF30 form looking for us to insert in this block? I could not locate a field called "contract type identification code" or anything similar on common award documents (SF26 and SF1449). My logical assumption is that it just wants the 9th digit in the Procurement Instrument Identifier(PIID) [e.g. C for contracts or P for Purchase Orders], however we use PD2 as our contract writing system, and the dropdown choices we have for completing Block 1 are A, J, K, L, R, S, T, U, V, Y, or Z. C and P are not answer choices, which makes me think that it is asking for a different code than the 9th digit in the PIID. Anyone know what this question is asking?
  8. I would love to say this is a classic "delay & disruption" claim waiting to be filed (based solely on the parts I'm selectively quoting above). However, I can't say that, because of the other facts that I didn't quote, facts that make it seem as if the prime wasn't effectively managing its subcontractors because the items being procured were "commercial products." [Note: Interesting phrase that doesn't seem to match FAR definitions.] See my June 17 post for my thoughts about a prime contractor who doesn't effectively manage its subcontractors.
  9. Fans of the blog know that we’re wild about joint ventures: they allow small business contractors to use their size status while, at the same time, leveraging their joint venture partner’s experience and capabilities. But joint ventures—particularly joint ventures under one of the SBA’s socioeconomic programs—can be tricky to create. For joint ventures between a small and a large company, the venturers first need an approved mentor-protégé agreement. And regardless, for the joint venture to qualify under a socioeconomic designation, that joint venture must have a compliant agreement. But that’s still not enough to create a compliant joint venture. As a recent SBA Office of Hearings and Appeals decision explains, the small business venturer must unequivocally control the joint venture. Control over a joint venture has long been a confusing subject for joint venturers. On the one hand, the SBA’s socioeconomic regulations require the person on whom the company’s eligibility is based to control the company. For SDVOSBs, as an example, this means that the service-disabled veteran owner must control all aspects of the company, save for five “extraordinary circumstances” that are specifically designated in the SBA’s regulations. 13 C.F.R. §§ 125.11, 125.13. On the other hand, the SBA’s joint venture regulations do not explicitly require that same level of control over the joint venture by the SDVOSB venturer; instead, they require the SDVOSB venturer to act as the managing venturer, and to designate a project manager “responsible for performance of the contract” awarded to the joint venture. 13 C.F.R. § 125.18(b)(2)(ii). In Seventh Dimension, LLC, SBA VET-6057 (June 11, 2020), the SBA OHA had occasion to consider the level of control that an SDVOSB must exert over an SDVOSB joint venture. At issue was the eligibility of Aquila Alliance LLC—a mentor-protégé SDVOSB joint venture between Advanced Computer Learning Corporation (ACLC), as the SDVOSB venturer, and General Dynamics Information Technology (GDIT), as the non-managing venturer—under a procurement set aside for SDVOSBs by the U.S. Army Special Operations Command. On its face, the joint venture checked the appropriate boxes for eligibility: ACLC was an eligible SDVOSB and had an approved-mentor-protégé agreement with GDIT. Moreover, the parties appeared to have a compliant joint venture agreement under the SBA’s SDVOSB joint venture regulations. Importantly, ACLC was designated as Aquila’s managing venturer and an ACLC employee was named its project manager. Aquila’s joint venture agreement, however, also provided for a Member’s Committee. Representation on the Member’s Committee was tilted in favor of ACLC—having two committee members to GDIT’s one. The Committee, moreover, was authorized to “exercise complete and exclusive control over the management of the Company’s business, including controlling the performance of the Contracts[.]” Notwithstanding the Member’s Committee’s control over the joint venture, the joint venture agreement identified several items that required unanimous approval of the venturers. Included in these requirements were the approval to bid on projects (and final approval for any bid); entering into any contract with the government; entering into subcontracts valued at $500,000 or more; incurring debt (other than trade payables or leases); incurring expenses valued at more than 5% of budget; and settling litigation. After Seventh Dimension filed an eligibility protest, the SBA Area Office found that Aquila was an eligible SDVOSB joint venture. Seventh Dimension then appealed, arguing, in part, that ACLC does not control Aquila and, as a result, Aquila is not an eligible SDVOSB. The OHA agreed with Seventh Dimension’s arguments, finding that ACLC’s inability to control Aquila meant that the joint venture was not eligible as an SDVOSB. Citing the requirement that an employee of the SDVOSB be the joint venture’s project manager, the OHA wrote that “this means the [SDVOSB] must control the decision-making of the joint venture.” This control, the OHA wrote, “must be unequivocal.” Such unequivocal control did not exist under the Aquila joint venture agreement, given the unanimity requirements. These requirements well-exceeded the “extraordinary circumstances” outlined in the SDVOSB regulations, including submitting proposals and entering into contracts—ordinary actions that go to the very purpose of the joint venture. Given these unanimity requirements, and considering other aspects of GDIT’s negative control over the functions of the joint venture, the OHA concluded that GDIT controls the ordinary functions of the joint venture. In other words, ACLC was not able to manage the joint venture and, therefore, Aquila’s joint venture agreement did not comply with the SBA’s regulations. OHA concluded that Aquila was not an eligible SDVOSB. *** In my mind, the OHA’s determination that an SDVOSB venturer must “unequivocally control” the joint venture is problematic, as it conflates the requirements for the underlying SDVOSB’s eligibility with the joint venture’s eligibility. Although the SDVOSB regulations require the service-disabled veteran owner to exercise unequivocal control over the SDVOSB under 13 C.F.R. § 125.13, the SDVOSB joint venture regulations don’t require this same level of control. Instead, to be an eligible SDVOSB joint venture, the company has to have a joint venture agreement that meets the regulatory requirements—including that the SDVOSB serve as managing venturer and that one of its employees serve as project manager, “responsible for performing the contract.” 13 C.F.R. § 125.18(b)(2)(ii). “Exercising unequivocal control over the joint venture” is simply not one of the requirements stated in the SDVOSB joint venture regulations. The SDVOSB joint venture regulations differ from the underlying SDVOSB regulations in other important ways. First, the SDVOSB joint venture regulations specifically allow the non-managing venturer to exercise negative control not permitted to minority members of the SDVOSB entity itself, by requiring that both venturers co-sign any checks paid out of the joint venture’s bank account. 13 C.F.R. § 125.18(b)(2)(v). In other words, the SDVOSB regulations tacitly allow the non-managing venturer the ability to withhold its consent to paying for the joint venture’s indebtedness—a clear act of negative control. In an SDVOSB, however, requiring a minority member’s countersignature before a check can be issued would be an improper usurpation of the service-disabled veteran’s inherent control. Second, the nature of the joint venture profit split demonstrates that an SDVOSB need not have unequivocal control. The SDVOSB regulations generally require that the service-disabled veteran owner receive the highest compensation from the SDVOSB; if a non-service-disabled veteran instead receives the highest compensation, the presumption is that that person controls the company. 13 C.F.R. § 125.13(i)(2). In an SDVOSB joint venture, however, the non-SDVOSB venturer can receive the highest compensation—because profits are split commensurate with the parties’ work, and because the non-SDVOSB venturer can perform up to 60% of the joint venture’s work, the non-SDVOSB venturer might receive an outsized share of the profits. 13 C.F.R. § 125.18(b)(2)(iv), (b)(3). Again, the SDVOSB regulations contemplate that the non-managing venturer might have some level of control over the joint venture. Practically speaking, a relaxed control requirement makes sense in the context of a joint venture. Under the SBA’s regulations, a joint venture is, in many respects, a legal fiction: it is a separate unpopulated legal entity, under which two or more entities “combine their efforts, property, money, skill, or knowledge” in order to perform under a specific contract. 13 C.F.R. § 121.103(h). It is nothing more than the sum of its parts—including those parts contributed by the non-managing venturer. To say that the non-managing venturer cannot exercise any control over how the joint venture operates ignores the relationship of the parties. Moreover, it threatens to undermine the joint venture regime itself, as I can’t imagine many entities would be willing to participate in a joint venture if they are precluded from having a say over whether that joint venture will even submit an opportunity under a specific contract and, if so, how that contract will be performed. I simply don’t read the joint venture regulations as requiring unequivocal control. But, at least for now, it’s clear the OHA considers the managing venturer’s ability to “unequivocally control” the joint venture as a prerequisite to eligibility. If you have any questions about joint ventures, please give me a call. View the full article
  10. Last week
  11. Everyone who voted got it correct. The untailored version of FAR 52.212-1 incorporates the firm bid rule (FAR 14.304(e)) in (f)(5): FAR 52.215-1 incorporates the rule about withdrawal of proposals (FAR 15.208(e)) in (c)(3)(v): FAR 52.212-1 was written to accommodate both invitations for bids and requests for proposals. However, the firm bid rule doesn't apply to contracting by negotiation. Fortunately, you can tailor FAR 52.212-1 to remove the firm bid rule if you are using the provision in an RFP.
  12. I found the following IG report. EPA’s Initial Implementation of CARES Act Section 3610
  13. The contractor seeking an extended delivery/performance date asked for substantiation of the Government's consideration amount request, and the Government said no. Now, the contractor has a choice (1) ask again, (2) agree, (3) negotiate, or (4) disagree. Similarly, if the contractor proposes a consideration amount, it is not required to substantiate that amount or prove it to the Government. There is no requirement for equivalency or approximation to anything else.
  14. kb, in regard to your question concerning government oversight of this type work, here is what FAR 52.246-2 says concerning supply contracts which this appears to be The Government has the right to inspect and test all supplies called for by the contract, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay the work. The Government assumes no contractual obligation to perform any inspection and test for the benefit of the Contractor unless specifically set forth elsewhere in this contract.
  15. I guess common law legal procedures. The only clauses applicable in the contract are "Termination for Default," however, this is not a realistic option for the Government; and "Changes," with the change being a change in delivery schedule, but it is as a result of delays. The effort does include commercial items of a type, but is not under FAR Part 12...not sure the sorted background on this, as I came in after award. I have requested clarification and adequate/additional information supporting the value/cost of the delay stated by the Government and was told that we are not privy to that information. If we are disputing the amount they consider as "Value" for this delay, then we can formally issue a claim for disputes and they will provide adequate information to back up their "value" to the appropriate reviewer as required, but the formulas and processes they used to arrive at this value cannot be released for Contractor Review.
  16. Retreadfed, the applicable inspection clauses are FAR 52.246-2 (Inspection of Supplies - Fixed Price) and FAR 52.246-4 (Inspection of Services - Fixed Price).
  17. And if I may, in addition to inspection clause(s), does the contract include the clause at FAR 52.246-11, Higher-Level Contract Quality Requirement? The fill-in for para. (a) might flow down to the subcontractor via para. (b).
  18. I don't know why it would not be a contract for commercial items under these facts. However, that is another issue. What inspection clause is in the contract?
  19. From the contractor side, my view is that the Government should not be involved with the prime-sub relationship as it relates to FAR 15.102 oral presentations by contractors. The oral presentations should be for contractors. In addition, the proposed ground rule "DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm" appears to require a potential offeror to decide to be either a prime contractor or a subcontractor, but not both. The Government should not be in that business without some specific compelling and permissible rationale.
  20. Retreadfed, I have looked at that FAR Clause and I wish it was applicable, but do not believe it is. That paragraph states that "If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either," and I don't believe we have a case to support that the delay/default was beyond the control of the Subcontractor. Let's say, hypothetically, this was an effort that consisted primarily of COTS items being slightly modified for military use ("items of a commercial type"). The contract is not considered FAR Part 12. The effort includes multiple subcontractors/suppliers producing items of a commercial type that will eventually be integrated into a functioning system. For these hypothetical delays, let's say that the Subcontractor/Supplier changed its design or process without notifying the Prime (as these are commercial products); and when this change was finally communicated from the Sub/Supplier, quality reviews were completed by the Prime, resulting in discovery that the newly designed component now does not meet physical compliance requirements. Additionally, the Sub/Supplier had already conducted/completed a number of requirements tests (at the subcomponent level) with the non-compliant units. So, hypothetically, the delay is in large due to the Sub/Supplier not thoroughly "vetting" their changes to ensure the product still met all requirements, and ultimately resulted in delays to re-produce and re-test components. Another scenario might be that the subcontractor/supplier procured the incorrect part, which didn't meet requirements, and there was a delay caused to get the correct part re-procured or maybe components arrived at the prime and had been damaged in transit, causing a delay to re-procure long lead material that could not be repaired from that damage. Another question would be for an effort of this type, what is the general level of involvement/oversight that the Government is "entitled" over the Contractor and/or Subcontractors manufacturing, design, test plans to meet requirements, procedures, testing at the Supplier (at subcomponent level) when these are COTS Products? I think the issue at heart is that this product (and subcomponents) are considered COTS, but the Government believes and pushes to dictate every aspect of the design, manufacturing, schedule, testing, etc like it is a military product...hypothetically.
  21. Certainly, the approach won't work for every acquisition, but it might work for some. Sometimes, an oral presentation or demonstration might reasonably involve a question or scenario which is introduced at the oral presentations for on-the-spot and unrehearsed responses by the competing offerors. That seems to be a legitimate reason to not allow a firm to participate in a second or third oral presentation -- fairness.
  22. The language may have been solved but limiting participation when a firm may be a subcontractor to many and itself a prime seems crazy to me. My first step would be to ask the program office Why? they want the language. That would help me determine how I as the CO would offer back to them my alternatives to their request. There are lots of reasons for me as to why I think it is crazy - Does the solicitation and resulting contract carry exact language that subs participating in the solicitation process must be the same subs that must perform the work carved out for that sub by the proposal? Is the agency already expecting that the prime will give authority to a sub, any sub, that a sub can be the "contractors representative" on the project. Seems you are entering into the world of subcontractor responsibility (FAR 9.104-4). I hope the sentence is not it. The program office should have provided within the context of their evaluation factors that subcontractor capabilities are a part of the selection process. Will a singular firm that is viewed as a subcontractor always be doing the same work for the multiple possible primes? Cutting the firm from participation in multiple presentations assumes they will, is the program office sure? Are they even sure that same firm will as a sub be doing the same thing as a prime? My quick thoughts and I could probably come up with more. I am with the OP on how the idea seems to conflict with the ideal that a subcontractor has no privity of contract why make it so in the solicitation process. Reading between the lines it would seem that all told the agency in their processes has failed in previous solicitation processes where oral presentations are allowed to key in on having meaningful evaluation factors as they would apply to performance, supervision and control of the work. In this vein it seems the program office has already made up its mind on a firm or firms they want. Heck why not just do it as a sealed bid because no one seems to really care about a firm stating how they will pursue the work as a prime or as a subcontractor under a prime, everyone already knows!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
  23. With July 4th around the corner, we wanted to remind everyone of the government contracting opportunities available to our nation’s veterans, including the SDVOSB Program. In this video, I cover how the SDVOSB Program has changed over time and how it works now: If you are a veteran in need of assistance with government contracting matters, check out how we can help here. View the full article
  24. "My issue is that it is per se wrong to direct subcontractors through our solicitation language." An offeror may include a subcontractor as part of its oral presentation team; provided, the subcontractor has not participated in any other offeror's oral presentation. Issue resolved.
  25. Beyond the question of whether it is unduly restrictive, I am not convinced as to how we would accomplish this. The sentence above could be interpreted as "the subcontractor shall not...." It just seems to me that it is written using passive language, which makes it all the less clear and enforceable. Here it is again-- DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm. If I translate that into something I can incorporate into a solicitation, preserving as much of the language as I can, then it might read-- [A] firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm. Per the above condition, if "a firm may attend only one oral presentation," then perhaps it may also attend more than one. If it "may not," then what are our enforcement options if a firm does not comply? Currently my office requires me to sign a completed checklist after every review certifying in part that our language is consistent throughout a document. For instance, if I use Vendor, stick with Vendor throughout, Schedule Contract Holder, stick with Schedule Contract Holder, Offeror, you get the point. What do we mean by "firm" and the explicating phrase thereafter? This seems like a backhanded, passive way of tell subcontractors what they may or may not do, and it says "may," by the way, not shall. So then, it does not sound like we are too serious or convinced ourselves. This is all the stuff they teach over at the local acquisition institute; I am just following what years of classes have instructed me to do and look out for. Why not instead say "Neither Contractors nor Subcontractors shall attend more than one oral presentation"? Speaking for myself, I never direct subcontractors in my contracts, nor do I direct them in my solicitations. Is my thinking in this regard wrongful? Is it OK to direct the subcontractors via the solicitation language as to what they may and may not do? This is a important question if I am to be convinced from my current opinion. If the answer is "no," that we should not be directing subcontractors in solicitations, just as we should not be directing them in contracts, then how do we accomplish this aim? I would think the answer is obvious. We need to ensure compliance with this rule by directing our prospective contractors. But how would we practically expect them to ensure as much? They could ask their subcontractors who else they are working for; but in my opinion, that is none of their business and if I were a subcontractor, I have a pretty good idea how I would respond. So then, it seems to me that it would have to be accomplished by way of a non-compete agreement or something of the sort, meaning pretty much that but we might give it some other name so people cannot say that is what it really is. If you do not agree, then what other way could it be done? My issue is not with the nature of the circumstances, that there is little risk because there are probably enough impressive subcontractors to go around or that the odds of protest are low. My issue is that it is per se wrong to direct subcontractors through our solicitation language. My issue is that it is mistaken to see the stifling of competition as acceptable when there are better approaches that can mitigate the risks inherent when the Government meets with offerors singly as opposed to requiring simultaneous submissions.
  26. You're already convinced, right? Nothing I say will persuade you? Look back at what I wrote, and then consider your reply. In your reply, you're talking about one particular subcontractor being key to the selection decision, but that was not the context of my comment. If one subcontractor is key to winning in your situation, that is all the more reason to leave subcontractors out. I'm okay with stating that a firm can participate in only one oral presentation, whether as prime or sub, as long as there are plenty of subcontractors to go around. All your words have persuaded me that you're already convinced, but they haven't persuaded me that it is illegal or whatever to limit proposed subcontractors to attending only one oral presentation.
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