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  2. It's to get the smug satisfaction of looking at someone who is lower than us on the food chain (technically speaking).
  3. Thank you for clarifying. I'll stick with my original assertion that this is highly context sensitive. The amount you're entitled to bill for in that scenario depends upon the nature of the tasks, deliverables, and performance standards stated in the contract. Let's say the Government requires an Executive Assistant, and one of the duties stated in the PWS is to answer the phone. For every day the person is out of the office, no one is sent to replace him/her, and the phone rings, the contractor is not performing as required, agreed? But if the Government asked for 1880 hours of coverage, the contractor proposed 1880 hours of coverage, and the Government accepted 1880 hours of coverage, then the parties are in agreement that a certain amount of "tolerance" for non-performance has been built into the contract. There is a meeting of the minds on this point. However, if the personnel exceeds that tolerance level (i.e., works less than 1880 hours), then the Government should be within its rights to deny you a portion of the FFP based on partial non-performance. The hours may not be contractually obligated, but the work, quality of work, and deliverables are. I think you're right to be wary of over-usage of FFP-LOE, but I would suggest that your interpretation is overly-strict. By my reading, I can use FFP-LOE for any purpose and any dollar amount. "Suitable for investigation or study in a specific research and development area" does not restrict me from using it for other purposes. At best, this is a recommendation. And the $150k threshold is waivable.
  4. Today
  5. Greenleaf Constr. Co, Inc., B-293105.18, B-293105.19, Jan. 17, 2006 Dual, Inc., B-280719, Nov. 12, 1998
  6. In the absence of a specific solicitation requiring one to, does ‘relevant commentary’ suggestions, and the GAO’s reasoning where some interpretations could require contractors to notify an agency of a material change, equate to.. contractors must do so?
  7. Brandes’s allegation that Amelex failed to inform the agency of a material change in its key personnel was not clearly meritorious at the time the agency filed its agency report. In this regard, our Office has held that offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10. The failure of an offeror to inform the agency of a change in proposed staffing and resources may render the evaluation and subsequent award decision unreasonable where it results in the agency being unable to evaluate the actual employees as they existed at the time of award.
  8. On that note: What would the government have to gain by maintaining a draconian approach to Key Personnel? I'm convinced that there are Key Personnel provisions/clauses floating around out there that are probably illegal, as they read more like Mandates for Indentured Servitude than solicitation provisions. And are you really going to T4C someone because one of their people had the temerity to (gasp!) change jobs?? (Cutting off your nose to spite your face comes to mind.) As a contractor, wouldn't you out of normal business practice inform the government of a material change to your offering before award, such as an obsolete part# or model#? What responsible businessperson would propose a product or level of service they knew they couldn't provide? If Key Personnel are SO critical to success such that a change of name(s) would affect your evaluation, should you be in the R&D or Grants arena? The FAR isn't necessary to the formation of rational decisions on either side.
  9. It's akin to awarding an "FFP" contract whose SOW consists solely of the words "contractor must deliver 1880 hours". 1880 hours is a BOE, not a contract term. I'm not sure "disingenuous" is the word you're looking for here...I'm saying I'm 100% within my contract rights to invoice for the full FFP amount whether a particular FTE was in the office on a particular day or not; it's disingenuous of me to suggest that the 1880 hours used in the BOE have any bearing on that right, certainly. Remember: Per FAR 16.207-2, FFP-LOE is for R&D <$150K only. I would also maintain that the "FFP-LOE type" is redundant and unnecessary anyway: you're always measuring the suitability of the output in an FFP environment, based partially on your assessment of the inputs and achievements against goals, and on a common understanding regarding the LOE required. An R&D SOW would merely define those desired goals more abstractly than (for example) a program support SOW.
  10. What would one do in this scenario? A Fed agency covered by the FAR issues a solicitation calling for transportation services. The SOW includes a spec for the motor vehicles. The award will be made on a tradeoff basis. Quality of the motor vehicle is an evaluation factor. Contractor X will compete relying on a subcontractor to furnish the motor vehicles. One subcontractor, Luxurious Imports Inc. (LMI) furnishes Mercedes. The other subcontractor, Cinque Cento (C2 )motors, provides Fiat 500s. Both meet the solicitation spec requirement. Since the source selection will be a tradeoff, X proposes LMI vehicles. Later, after dispute breakouts our between X and LMI, X decides to use C2.. Is X required to notify the contracting officer that it will provide Fiat 500s instead of Mercedes?
  11. FrankJon, PepeTheFrog understands your viewpoint now. Thank you for clarifying. PepeTheFrog only thinks that it "might be" a stupid decision to use FFP to purchase a set number of hours, if the better solution is to use FFP to purchase a deliverable, result, or defined service or if the better solution is to use a different contract "type" to actually purchase a set number of hours. PepeTheFrog agrees that often the government uses FFP to dust chairs using contractor personnel. PepeTheFrog wonders if these government employees are deeply comforted by seeing contractor personnel every day, in the same office. Maybe they are just lonely and want some company?
  12. As a contractor in this situation I think it’s important to evaluate things beyond just the terms and conditions spectrum as well. Once you have cleared what you see to be the legal hurdles (solicitation language, FAR, contract) will your firms reputation still be in tact? Even if you’ve determined you’re not obligated to disclose a thing, how will your actions be perceived by the govt or others? There is a difference between substituting a key position where 1) you know your company has 5 more equally qualified replacements who wouldn’t skip a beat and 2) the one of a kind project lead that you’d be up a creek without a paddle looking to replace. If it were the latter and you knew the award depended on this person, even if you risk losing the business, it may be worth disclosing to the agency (if you still had the chance to). If you didn’t and you can’t deliver you likely just cost yourself a customer. If it were the former you can probably sleep well at night knowing that you can still staff a high performing individual at a key position (and one that the govt won’t freak that you’re replacing). This might not good advice but it was what I thought about after having cleared contractual obligations
  13. SmallGovCon Week In Review: October 16-20, 2017

    My Cubs couldn’t pull off the World Series repeat, losing badly to the Dodgers last night in the National League Championship Series. And you know what? I’m okay with it. We Cubs fans are a different breed: after 108 years, many of us thought we’d never see a title. So after the amazing championship last year, all of 2017 felt like playing with house money. Yankees fans might be grumbling that it’s been a whopping eight years since their last title, but Cubs fans like me will always have 2016. Enough baseball–time to move on to what’s really important on your Friday, the SmallGovCon Week In Review! This week, we bring you articles ranging from government employees taking illegal gratuities, a sharp decrease in the number of successful small business contractors, investigators find major problems with many of the Census Bureau’s sole source contracts, and more. A 40-month prison sentence was handed down to the former comptroller of the Norfolk Ship Support Activity for conspiring with others to essentially force a government prime contractor to use a specified subcontractor. [United States Department of Justice] Federal agencies met the governmentwide small business goal for the fourth straight year in fiscal 2016, but the number of small business prime contractors has gone down by 25% since 2010. [Federal News Radio] After helping to steer millions of dollars in contracts to a North Carolina defense contractor, a former employee of the Navy has now been sentenced to three years and four months in prison for his role in the scheme. [The Virginia Pilot] Listen to Larry Allen on Federal Drive with Tom Temin as he discusses what GSA has in store for contractors this year. [Federal News Radio] A whistleblower suit has led to a False Claims Act settlement of $2.6 million to resolve civil allegations that the company submitted false claims for payment to the DoD for unqualified security guards. [wtop] Government investigators found problems with 90% of the no-bid contracts awarded by the Census Bureau, resulting in overpayment to contractors by about $9 million. [New York Post] Congressional members have submitted a request for information on data security vetting for government contracts. [Homeland Preparedness News] GSA Administrator nominee Emily Murphy wants the GSA to make it easier for new companies to do business with the government so competition remains robust. [Federal News Radio] The Indian Health Service agency has come under fire for awarding a contract to a company that had previously paid $10 million to settle allegations of submitting false claims to the government. [Bristol Herald Courier] View the full article
  14. Would the MATOC, or GSA BPA, contain clauses governing submission and evaluation of quotes/ proposals? Maybe. I used those clauses. Every contract specialist must read the clauses contained in the MATOC or GSA BPA to see how they affect contract performance AND the solicitation and evaluation of quotes/ proposals. If the the MATOC or GSA BPA clauses don't contain proposal submission and evaluation language, the CO could add the same language on proposal submission and evaluation in the solicitation as seen in provisions in a solicitation for a new contract.
  15. As has previously been stated, FAR is silent on the matter. We have to think about this like contracting practitioners, not just as bureaucrats. Think contracts. Think offer and acceptance. What information did the agency ask for in its RFP? Did the agency ask the offerors to describe the key personnel that they are offering (promising) to employ under the contract or did it ask the offerors merely to describe the key personnel that they currently employ or that they plan to employ under the contract? Do you see the distinction? One description is prospectively contractually binding, while the other is not. If the agency asked offerors to describe the key personnel that they are offering (promising), and if after the submission of offers an offeror finds that it is no longer able to offer (promise) one or more of those persons, then it had better notify the agency and ask for the opportunity to revise its proposal. If it doesn't, and if the agency accepts its offer, then it will breach the contract on Day One. If denied the opportunity to revise its proposal, then the offeror had better withdraw its offer. If the agency asked offerors merely to describe the personnel that they intend or plan to employ, but did not ask them to make promises in that regard, then there should be no inherent legal obligation for offerors to notify the agency of changes in key personnel since proposal submission, unless the RFP instructed them to do so. I'm not sure what the GAO's stance is in this regard. The case cited by napolik had to do with task order proposals under a MATOC, which may involve different implications than proposals for new contracts. Agencies must think things through. Why do they want information about key personnel? Do they want promises about what persons offerors will employ or do they want indications of the general quality of offeror employees? It would be stupid to ask for promises, unless the acquisition is for R&D and the agency is going to make its pick primarily on the basis of the relative merits of offerors' principal investigators. In that case, offerors should and might obtain prospectively binding offers for subcontracts with prospective principal investigators in order to bind them to work under the contract. Otherwise, employees come and go and they die, and an offeror would be stupid to promise someone on the basis of simple employer/employee relations. Allowing an offeror to revise its proposal in the event of a change in key personnel would entail discussions, not clarifications. Once notified of a change, the agency must think about how to evaluate the proposal, whether to conduct discussions, and whether to include the offeror in the competitive range. Agencies should think about the possibility of key personnel changes between proposal submission and award and decide in advance what such changes would mean, if anything, in terms of offer and acceptance and how they would handle them.
  16. Warning To Proposal Writers (and Agency Evaluators)

    Yep. I too get very upset when the trash truck doesn't arrive on Thursday morning. So do my neighbors. That usually happens when there's a Federal holiday earlier in the week so the trucks get behind a day. They pick up Friday morning instead of Thursday morning. I was considering sending the trash company a cure notice, but then I decided that a poor CPARS rating was sufficient.
  17. Yesterday
  18. I faced this same scenario where our folks identified as key personnel in a proposal had moved on by the time our award rolled around. Our staffing matrix and qualifications for key personnel held significant weight in the technical evaluation too. At the time I searched for anything in the solicitation or otherwise that forced a contractor to disclose they’d left and ultimately I did not find anything that required this disclosure. With the eval criteria you could argue there should have been. Knowing that a disclosure of this change to the agency could have thrown our tech evaluation upsidedown, albeit completely unintentional, it wasn’t worth the risk of disclosing prior to a fully executed contract. We abided by the key personnel clause in the award and no one got too bent out of shape. But it was a balance to not appear a bait and switch was going on (which if intentional would be a much different situation). The adage better to ask for forgiveness than permission did cross through my mind once or twice
  19. Much has been said on the security breach that exposed up to 145 million Americans’ most sensitive information. Not only had Equifax, some say negligently, exposed half of America’s social security numbers, credit card information, and just about anything else needed to steal an identity, but the company thoroughly botched the cleanup by directing customers to a dubiously credentialed website and made a not-so-subtle attempt to induce its customers to waive any right to sue. The remarkable nature of the incident even received a 15-minute break down by HBO’s John Oliver, which is by far the most entertaining way to catch up on the breach if you have been in hiding for the last month. The IRS award of a seven million dollar contract to Equifax, made shortly after the security hack, seemed to put a cherry on top of a perfect media outrage story. And rage they did. After Politico “discovered” the “sole-source award” by the IRS to Equifax, every major media outlet from Fox News to CNN ran stories mocking the agency’s poor decision. Senators from both sides of the aisle openly scolded the IRS for handing Equifax government funds without even allowing other companies to compete for the contract. Through a grin, Mr. Oliver told his crowd of the award, made on the very same day the former CEO was being chewed up in an open Senate hearing. How could something like this happen? Simply put, because a law aimed at preventing fraud and abuse required the IRS to give Equifax the contract, without any competition. Federal contractors are well aware of what is called a “statutory stay.” When the government wants to buy goods or services, most of the time it must follow very strict and complicated rules. One such rule requires the government agency to give a debriefing to disappointed contractors when their bid was passed over in favor of another’s. For a variety of reasons, the contractor may believe the government made a mistake in its decision or perhaps something more sinister is to blame for the loss. If the contractor “protests” the decision within five days of the debriefing, the contract at issue is automatically frozen while the Government Accountability Office takes a look under 31 U.S.C. § 3553. The reason behind the law is fairly plain – i.e., to avoid a situation where a company begins performing for the government, and racking up costs, only to have that contract overturned at a much later date. So about this infamous IRS “award” to Equifax; it was made after the IRS chose a different company to perform on a contract where Equifax was the incumbent. Equifax protested, activated the automatic stay described above, and the IRS was forced to grant a short extension to Equifax’s previous contract while the protest was decided. Notably, the short extension was publicly made, because “a sole source order is required to cover the timeframe needed to resolve the protest on contract TIRNO-17-Z-00024. This is considered a critical service that cannot lapse.” The protest was quickly denied, and now a new company will take over performing services to the IRS. Notably, the IRS decision to take the contract away from Equifax was made long before the media “put pressure on the IRS,” or before both sides of the aisle joined together in decrying the purported incompetent waste of government funds. While the vagaries of government procurement procedure may not be as shocking as the story told by the major outlets, and it is certainly not nearly as funny as the John Oliver segment, it is however the real explanation to the latest chapter of the Equifax security breach. The post The Misplaced Rage Regarding Equifax’s Post Data Breach “Contract Award” appeared first on Centre Law & Consulting. View the full article
  20. Yes, you read the title correctly – a protester actually protested its own future award. In an interesting twist of fate, a company recently filed a pre-award bid protest only to find out that the agency had already evaluated the protester’s bid and intended to award the contract to the protester. Daekee Global Company, Ltd., a South Korean company, protested the terms of a solicitation issued by the Department of Navy for ship husbanding services arguing that the evaluation scheme failed to evaluate offerors’ technical capabilities or past performance. The agency subsequently requested the dismissal of the protest because Daekee had not been prejudiced by the terms of the solicitation. Specifically, the agency argued that Daekee submitted an offer that was evaluated by the agency and that the agency intended to award a contract to Daekee. In response, Daekee argued that the merits of its protest should still be addressed as, even though it would be an awardee, the issues Daekee raised would not be addressed or corrected if its protest were to be dismissed. Unsurprisingly, the GAO did not bite on Daekee’s argument. In its decision, the GAO found that Daekee was not an interested party as it did not suffer any competitive prejudice because Daekee did not suffer any competitive disadvantage or otherwise affect its ability to compete. Because the agency represents that once the protest is resolved and the stay of the award is lifted it will award a contract to Daekee, the GAO found that it does not have jurisdiction to entertain the protest. The post Protester Not Found to Be An Interested Party Where It Was The Awardee appeared first on Centre Law & Consulting. View the full article
  21. Am I the only one who can read napolik's posts? Why does everyone continue to post key personnel clauses that govern post-award contract administration?
  22. If you would like to see a non-prescribed Key Personnel Clause with detailed requirements, take a look at the one you will find at this link: http://www.hanford.gov/page.cfm/PrimeContracts which takes you to the prime contracts page. Then scroll down to CH2M Hill Plateau Remediation Company, LLC (CHPRC); Click on "CHPRC Conformed Contract" Click on Section H, and then on clause H.15. Enjoy.
  23. The USDA has a key personnel clause. The prescription states: "The contracting officer shall insert a clause substantially the same as the clause at 452.237-74, Key Personnel, in contracts if contract performance requires identification of the contractor’s key personnel." The clause reads: KEY PERSONNEL (FEB 1988) (a) The Contractor shall assign to this contract the following key personnel: __________________ (b) During the first ninety (90) days of performance, the Contractor shall make no substitutions of key personnel unless the substitution is necessitated by illness, death, or termination of employment. The Contractor shall notify the Contracting Officer within 15 calendar days after the occurrence of any of these events and provide the information required by paragraph (c) below. After the initial 90-day period, the Contractor shall submit the information required by paragraph (c) to the Contracting Officer at least 15 days prior to making any permanent substitutions. (c) The Contractor shall provide a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes for the proposed substitutes, and any additional information requested by the Contracting Officer. Proposed substitutes should have comparable qualifications to those of the persons being replaced. The Contracting Officer will notify the Contractor within 15 calendar days after receipt of all required information of the decision on substitutions. The contract will be modified to reflect any approved changes of key personnel. (End of Clause)
  24. It now works for me. I was logged in as a member before and after. Whatever was changed worked.
  25. SF 1449 Block 29

    Unless an agency has issued policy or guidance on the matter (FAR 53.212), I would suggest the following. Block 29 only applies when the government is accepting an offer from a offeror to form a binding contract. If the CO is instead issuing an offer to purchase (purchase order) to a vendor, the CO should simply complete Blocks 31a, b and c, then send the purchase order to the vendor. If the CO wants written confirmation of the vendor's acceptance of the purchase order, he or she can check Block 28 request the vendor sign the document and complete Blocks 30a, b, and c. While Block 28 states the contractor is "required" to sign the document, I don't see how they could be required to accept an offer to purchase from the government, even if they submitted a quote. Alternatively, if the CO is not concerned with obtaining written acceptance, he or she can rely on the expectation that the contractor will perform. Tender of performance creates a binding contract. When performance is partial or in part, the question of when a contract is formed is less certain. Boards have found in that substantial performance creates a binding contract, while intiation or partial performance may or may not based on the circumstances (ASBCA No. 33732, Amplitronics, Inc.). I believe the reason that Block 27 states both contract and purchase order, is because those clauses apply regardless of whether the form is used to create a contract by accepting an offer from a vendor or the issuance of an offer to purchase (purchase order) issued by the government. Block 29, on the other hand, is only used to accept a vendor's offer to form a contract when the CO signs the document. Block 29 is not used to issue a purchase order.
  26. A self-certified woman-owned small business was ineligible for a WOSB set-aside contract because the woman owner’s husband held the company’s highest officer position and appeared to manage its day-to-day operations. A recent SBA Office of Hearings and Appeals decision highlights the importance of ensuring that a woman be responsible for managing the day-to-day business of a WOSB–and that the woman’s role be reflected both in the corporate paperwork and in practice. OHA’s decision in Yard Masters, Inc., SBA No. WOSB-109 (2017) involved an Army solicitation for grounds maintenance services. The solicitation was issued as a WOSB set-aside under NAICS code 561730 (Landscaping Services), with a corresponding $7 million size standard. After evaluating competitive proposals, the Army awarded the contract to Yard Masters, Inc. A competitor then filed a WOSB protest, alleging that Yard Masters was ineligible. The protester contended that a man, Bryce Wade, was Yard Masters’ majority owner and President until recently and that he still exercised control over the company. In response to the protest, Yard Masters admitted that Bryce Wade had previously been the majority owner, but that he had recently sold stock to his wife, Sally Wade, making her the 51% owner. Yard Masters also produced Sally Wade’s resume and meeting minutes, showing that Sally Wade was the Chief Executive Officer. The SBA Area Office examined Yard Masters’ bylaws, and determined that the bylaws “do not create a CEO position” or assign any duties to the CEO. Instead, the bylaws identified the President (a position held by Bryce Wade) as the “chief executive and administrative officer of the corporation.” The SBA Area Office also noted that “Bryce Wade signed [Yard Masters’] proposal and its contract documents for the instant procurement,” as well as the company’s tax returns. The tax returns “identify Bryce, and not Sally, Wade as a compensated officer.” The SBA Area Office found that Sally Wade did not control Yard Masters, and issued a determination finding the company ineligible for the Army WOSB set-aside contract. Yard Masters appealed to OHA. Yard Masters argued, in part, that the corporation’s meeting minutes made clear that Sally Wade had ultimate direction and control of the company. Yard Masters “argues that Sally Wade is its CEO,” OHA wrote. “The problem is that the Board did not formally create a position of CEO.” OHA continued, “[t]he Bylaws were never changed to add the position of CEO. The Bylaws clearly state that the President is the corporation’s ‘chief administrative and executive officer.’ Bryce Wade holds that position.” OHA concluded that Yard Masters’ “highest officer position is President, and Bryce Wade, not Sally Wade, holds it.” OHA also noted that “all actions taken on [Yard Masters’] behalf were taken by Bryce Wade.” Even after Sally Wade “supposedly had taken control” of the company, “Bryce Wade signed [Yard Masters’] offer” and was listed as the point of contact. And incredibly, after the WOSB protest was filed, “t was Bryce Wade, not Ms. Sally Wade, who communicated with SBA on [Yard Masters’] behalf.” OHA denied the appeal and upheld the SBA Area Office’s decision. The Yard Masters case offers at least three important lessons for WOSBs. First, corporate paperwork matters. I can’t count how many times, in my practice, I’ve seen a situation like Yard Masters’, where a company officer is using a title that isn’t established in the governing documents. In order for a woman to hold the highest officer position in the company, the governing documents need to establish that her role is, in fact, the highest. Even small, family-owned companies like Yard Masters need to ensure that their corporate documents are up to snuff. Second, perception matters. Although there’s not necessarily anything inherently wrong with a man signing contracts and other documents on behalf of a WOSB, it does tend to suggest that the man has outsize influence within the company. WOSBs ought to be careful about who signs contracts, checks and other corporate documents–as well as who is listed as points of contact in SAM and in proposals. And third, as a corollary to the previous item, if you’re getting protested for WOSB eligibility, don’t have a man be in charge of communicating with the SBA. Talk about not sending the right signals. The SBA is still working in the long-awaited rules that will require all WOSBs to be formally certified. But in the meantime, Yard Masters is a good reminder self-certified WOSBs need to do their due diligence to ensure that they comply with all WOSB requirements. View the full article
  27. Warning To Proposal Writers (and Agency Evaluators)

    Point well taken. But, to play government's advocate in some military doctrine "Trash Hauling" is considered part of critical infrastructure. See "Handbook for Military Support to Essential Services and Critical Infrastructure" (http://www.dtic.mil/doctrine/doctrine/jwfc/esci_hbk.pdf). Solid waste management may seem mundane, but having lived in countries where it is sporadic at best, and shuts down completely in adverse weather, I've seen that it can become more than a nuisance relatively quickly. (www.who.int/water_sanitation_health/hygiene/emergencies/solidwaste.pdf) Sorry, probably given this more attention than it deserves. In my mind, they probably should have just included a technical requirement (with an evaluated tech subfactor) with some of the pared down requirements of 252.237.7024 (some portions clearly would not apply like performing from home). I think a more succinct requirement could be made to mirror contingency plans existing in a commercial requirements, and hopefully be easier to propose to and evaluate (with less likelihood of errors by the offerors/evaluators).
  28. It is only available to Members who are logged in.
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