Jump to content
The Wifcon Forums and Blogs

All Activity

This stream auto-updates     

  1. Today
  2. What is a GACO?

    Believe it or not, there is another procurement related GACO. It's from the Corps of Engineers. Let's see if Joel is around.
  3. Yesterday
  4. If you do not get an answer here you might try this..... Are the panel meetings open to press? Press may attend the panel meetings only during open sessions. During closed sessions, the press will have to leave the room. If you have questions, please contact Shayne Martin at 703-571-3274 or send an email to Sec809@dau.mil.
  5. What is a GACO?

    There is a Government Agency Coordination Office (GACO) that sponsors a series of FAR seminars.
  6. I think that GAO is engaging in rulemaking in this case in the guise of deciding protests. I agree that GAO is imposing a duty on offerors that is not imposed by statute or regulation (as far as I know) by requiring that offerors disclose post-submission changes in the status of persons and other resources described in a proposal. Moreover, ironically, a CO should ignore such a disclosure, since it would constitute a proposal revision, and acceptance of that revision would constitute discussions. I also agree that GAO has no business sustaining a protest because of an omission by an offeror, rather than an act or omission by an agency. I won't say whether I think that GAO has jurisdiction, because GAO determines its own jurisdiction, and since GAO is not part of the court system agencies cannot appeal to a court if it thinks GAO exceeded its authority by going beyond its jurisdiction. (At least, I don't think they can appeal to a court.) What agencies can do is tell GAO that they won't follow GAO's recommendations. If GAO recommends that an agency make a new award decision based on an omission by the successful offeror, and if the agency decides to comply with the GAO's recommendation, the successful offeror could protest the agency's decision at the Court of Federal Claims. And this is where proposal information vs. offer comes in. If an agency wants information about "proposed" key personnel, they should be clear about why they want it. If they want information about an offeror's personnel as merely indicative of the kinds of persons that the offeror would employ, but not as a promise that particular individuals will perform, then they should make that clear. On the other hand, if they want to bind the successful offeror to ensuring the performance of specific individuals, then they should make that clear by demanding promises about key personnel and writing the resultant contract accordingly. (I don't think that would be wise in most cases, but that's a topic for another thread.) If an RFP requires information about key personnel as merely indicative of the kinds of persons that offerors would employ, but not as promises about the performance of particular persons, then the agency should evaluate key personnel accordingly, without counting on getting particular persons. If the successful offeror failed to notify the CO of a change in the status of its personnel, then the agency's award decision should stand. Agencies should know that the status of people and resources often change within companies in the course of a lengthy source selection. In such a case the unavailability of a particular individual need not change the judgment about the kinds of persons the offeror would employ. But if the RFP required an offer, a promise, about the performance of particular persons, and if an offeror learns after submission that it can no longer keep its promise in that regard, then the offeror must notify the agency and may have to withdraw its proposal. If (a) the successful offeror did not notify the agency or withdraw, and if (b) the agency relied on the offeror's promise of particular key personnel in evaluating and choosing that offeror for award, and if (c) the agency unknowingly accepted a nonconforming offer, then the contractor is in breach, and the award should not stand. The agency should T for D and make a new award decision. The key to all this, in my opinion, is for "contracting" officers to think in terms of the law of contract formation (offer and acceptance) and think clearly about proposal information vs. offers. By the way, if you, as an offeror, learn that a "proposed" key person is no longer available, notify the CO by sending the resume of the substitute and let it go at that. If the CO acknowledges the notification that revises the proposal to remove the person who is no longer available, you can argue that the CO has engaged in discussions and must consider the substitute. If the CO refuses to consider the substitute, and if the procurement is worth the cost, protest--not to the GAO, but to the Court of Federal Claims, where I speculate you'd have a real chance to win.
  7. The Panel met last week, according to the website. Among other topics were "Audit and Compliance" and "Contractor Business Systems" Interesting topics, at least to me. But the meetings were closed to the public and so I have no idea what the content of the presentations were. At least some of the presenters were private citizens (one was the former Director of DCAA) but only the Panel knows what was presented. Why?
  8. Progress Payments by CLIN

    I agree it's overly complex and frustrating when a single contract (or in your case task order) has multiple CLINs with multiple payment clauses and with multiple payment instructions. As you have noted, you can group all the progress payment CLINs together (especially if they are funded by the same ACRN) for purposes of making progress payment requests and liquidating based on deliveries. That seems to be the easier approach, especially if it aligns with ACO/PCO and DFAS expectations. But you don't want to do that because it delays billing fee, since your "deliveries" are smaller than your ongoing progress pay request values. Q: Is it possible to pull your FFP CLINs out of progress pays? Can the PCO/ACO mod the contract so that progress pays are NOT authorized for your FFP CLINs? If that won't work then I have trouble seeing how you get out of this situation, which sucks because the DOD is not supposed to treat small businesses in such a cavalier fashion. Q: Can you get the SADBU or the SBA advocating for you? If all else fails .... Q: Are you willing to file a certified claim for profits you believe have been wrongfully withheld because of DFAS' interpretation of your contract, an interpretation with which the parties who drafted it disagree? Hope this helps.
  9. What is a GACO?

    I can find four acronyms via Google. None seem especially relevant to Federal contracting
  10. What is a GACO?

    I've never heard it either. Who used it and in what context?
  11. Vern, I would appreciate your views on whether the GAO rule, as you describe it, is something that is within the protest jurisdiction of the GAO. 31 U.S.C. 3554(b) says " With respect to a solicitation for a contract, or a proposed award or the award of a contract, protested under this subchapter, the Comptroller General may determine whether the solicitation, proposed award, or award complies with statute and regulation. If the Comptroller General determines that the solicitation, proposed award, or award does not comply with a statute or regulation, the Comptroller General shall recommend that the" agency take one or more of the actions listed in the statute. Thus, the basis for sustaining a protest is that government action did not comply with law or regulation. The GAO rule is predicated on contractor action, but does not mention any law or regulation that requires the contractor to do what the GAO thinks should be done. Moreover, the GAO rule is establishing a procurement rule that is within the power of the FAR Councils to write. I see nothing that gives the GAO the power to establish procurement rules that contractors must follow.
  12. As ji20874 pointed out, there is nothing in the FAR about this. (Maybe in an agency supplement--I did not check.) Here is the "rule" as stated by the GAO earlier this year in General Revenue Corp., B-414220.2, 2017 CPD ¶ 106: Note that the GAO's rule does not take into consideration whether the names of key personnel are part of an offer (promise) that will become binding upon acceptance or just information for evaluation. There is no consideration of why or how the agency is going to evaluate key personnel, whether on a pass/fail or variable value basis. There is no consideration of whether the names of key personnel will be included in the resultant contract and whether there will be a key personnel clause providing for substitutions during performance with CO approval. The GAO looks at the matter strictly from the standpoint of fairness in proposal evaluation. The simple facts of biology (illness, injury, incapacitation due to various causes, and death) and the realities of business life (people quit or must be fired) make it hard or unreasonable to require contractors to employ and use specific persons throughout contract performance. A substitution process is essential. The GAO's rule is unfair, because it requires offerors to tell agencies when a substitution must be made, but does not guarantee them a process of substitution. In the protest, the agency issued the RFP in December 2015. It announced awards a year later, in December 2016. A year is a long time. It's not surprising that some key personnel might move on in that period. So what if an offeror identified someone as a key person and then, after the proposal submission, that person moved on? According to the GAO, the offeror would have to notify the CO. However, for the CO to entertain any revision, even the notice that a key person's name has to be removed because the person has become unavailable, would constitute discussions. For an offeror to notify the CO that a key person was no longer available, even if it had not promised that particular person, even though it would have to opportunity to make a substitution if the change had happened after award, would expose it to the risk that the CO would refuse to conduct discussions in order to allow it to submit a substitute. Absurd. I don't know whether this is a significant problem, but it has been a problem of sorts in some cases. So what's the solution? In light of the GAO's "rule," I propose that agencies include language such as the following in RFP Section L when they intend to require offerors to identify key personnel as merely indicative of offeror qualifications, but do not intend to require them to promise to employ those persons during contract performance: SUBSTITUTION OF PROPOSED KEY PERSONNEL (a) If, after submission of proposals, but before contract award, an offeror learns that any of its proposed key personnel are no longer available for contract performance, the contracting officer will permit the offeror to substitute another person, provided, however, that: (1) the Government finds that the person proposed would have been acceptable in accordance with the evaluation factors and (2) the person proposed is no longer available to the offeror for contract performance. (b) Depending on the substitute’s resume, he or she will receive either the same evaluation as the person proposed or a lower evaluation, as appropriate in accordance with the evaluation factors for award. However, under no circumstances will the substitute receive a better evaluation than the person proposed. An offeror will not be permitted to improve the evaluation of its proposal through key personnel substitution. (c) An offeror seeking to make such a substitution before award must notify the contracting officer in writing by submitting the substitute’s resume in accordance with Section L of this solicitation. (d) Substitutions made before contract award shall not be considered proposal revisions. Approval of any such substitution by the Government shall not constitute discussions as described in FAR 15.306(d) and FAR 52.215-1(a) and shall not require the Contracting Officer to make a competitive range determination. Such substitutions shall not be considered late proposal submissions, as described in FAR 52.215-1(c). After contract award, key personnel substitutions shall be processed in accordance with the contract Key Personnel clause. Would that be a FAR deviation? Some will think so. I will not debate it. If you think so, then don't use it, or seek approval for a FAR deviation. Innovators should do as they think best. There is another possibility. If the successful offeror must make a substitution before award, and if the proposed substitute is better than the one originally proposed, a CO might allow a late proposal modification in accordance with FAR 15.208(b)(2) and 52.215-1(c)(3)(ii)(B). Note that, as I posted previously, if proposed key personnel are part of an offer (promise), then an offeror must notify the CO and withdraw the offer in order to avoid the possibility of breach of contract. Those of you who believe in the Section 809 Panel might tell suggest to them that the current procedures in FAR 15.306, which are largely the product of GAO case law, are simply too stupid to keep in the regulation.
  13. Bilateral: by including the new text in Section H proper. Unilateral: by including the new text in the award document.
  14. Do you do this unilaterally by accepting the contractor's offer or bilaterally by drafting a new contract for signature by both parties?
  15. Last week
  16. The Section L blurb is already in the solicitation, saying that any aspect or feature of the proposal may be incorporated into the resulting contract: L-6. Incorporation into Contract The Government may incorporate any aspect or feature of the offeror's proposal into the resulting contract. Then, in the awarded contract, you include text such as in Section H (Special Contract Requirements): H-19. Incorporation into Contract The automobile provided by the contractor shall be a Mercedes Model Z. This requirement does not waive, relax, or alter any other requirement of this contract. or H-19. Incorporation into Contract The Contractor shall use the approach to nickel-cadmium plating with Acme Platers described on pages 14-16 of the offeror's proposal. This requirement does not waive, relax, or alter any other requirement of this contract. These are simplified examples. In real life, there would be a few more words.
  17. So, after source selection, you draft, and both parties sign, a contract containing a clause with the pertinent Section L material. Correct?
  18. I usually include text in my solicitation Section L that any aspect or feature of the offeror's proposal may be incorporated into any resulting contract. You write contract text saying that the particular aspect or feature is incorporated into the contract. Using your example, where the requirement was for an automobile that goes at least 65mph and has trunk capacity of at least 1 cubic yard and seats five comfortably and so forth, and the best value offer was a Mercedes Model Z, you include text that the contractor will provide a Mercedes Model Z. If the reason for the selection was an offeror's superior approach to nickel-cadmium plating using a specific subcontractor, you include text that the contractor's approach to nickel-cadmium plating using that named subcontractor, as described in pages 14-16 of its technical proposal, is incorporated into the contract. NOTE: This is not incorporating the entirety of the offeror's technical proposal into the contract -- generally, I do not like doing that -- and this is not incorporating pages 14-16, either. Anyway, I might also include a statement that this incorporation of the feature or aspect of the proposal into the contract does not waive, relax, or alter any other requirement of the contract -- the Mercedes Model Z still has to meet all of the performance requirements and/or design criteria in the statement of work (the contractor offered the Model Z to meet exactly those requirements). Normally, I would call this contract text a clause -- but there is some sensitivity in this forum about contracting officers and home-made clauses, so I haven't used the term. But I am all in favor of home-made clauses when appropriate -- I think drafting clauses for use in contracts is a crucial skill for contracting officers to have -- a contracting officer who cannot do it is to worth his or her pay. Agency and local rules that prohibit contracting officers from writing home-made clauses are stupid rules. NOTE: I am talking about clauses drafted by the contracting officer that are not deviations -- also I am not talking about clauses promulgated by the agency head.
  19. What is a GACO?

    After about 19 years here, I found an acronym I hadn't seen before. Any GACOs here? Anyone know a GACO? Anyone know what a GACO is?
  20. The solicitation stated that a proposal/ offer consisted of, inter alia, prices and an identification/ description of the vehicles to be used to meet the requirements set forth in the Section C/ SOW. The solicitation includes the SF 1449 which the contractor signed and which the contracting officer will sign to create a contract after signing in block 31a and after checking block 29 and entering info relevant to the proposal/ offer.
  21. Progress Payments by CLIN

    When I was a DoD contracting officer many years ago, I was aware that DFAS cares nothing about the text of the contract or the contract's FAR clauses, and does wherever it wants when paying invoices -- this leaves PCOs and ACOs to find workarounds to try to respect the contract's text. It seems that hasn't changed.
  22. napolik, My practice: Whenever I conduct a trade-off, and the winner is selected because of some feature or aspect of its offer or proposal (yes, these are different), I want to incorporate that feature or aspect into the resulting contract. Vern, i hope your efforts here will result in a contracting officer somewhere shifting more towards evaluating offers (promises) and less on evaluating proposals. This means our solicitations should ask more for offers (promises) and less for proposals.
  23. What do you mean by "proposal/offer"? Did the offeror promise to provide Mercedes, clearly and unequivocally?
  24. First, the cars must meet the minimum spec. Then, additional value will be assigned based upon horsepower, max velocity, seat space, IT mechanisms, etc. Like many, if not most, solicitations, there is no clause explicitly stating that the proposed vehicle must be furnished. However, the solicitation defines clearly the contents of the proposal/ offer, and the contracting officer will accept the proposal/ offer. PS - Another competitor will offer a Renault.
  25. Two questions: 1. You say that the source selection will be a tradeoff. How will the government evaluate the cars? Will it look to see only whether a proposed car meets the spec or will it evaluate the cars on other value-adding attributes, as well? 2. What will the contract say? Will it retain the spec in the solicitation or will it specify the car by make and model?
  26. Hi! I have a situation where it seems DFAS/ACO/PCO/Contractor have a different expectation of how progress payments should work on this program. I am looking for guidance that could help everyone have the same understanding, or to weave the pieces together. I am the Contractor, small business, awarded a Task Order (which we all refer to as a "contract") under a GSA GWAC, primarily for services and material (aka not Construction). The total value to include all options is $80M. There are multiple CLIN types, mostly FPIF (with FFP for leased space and Cost for travel/materials). There are no "option years" just options for different systems to be built and delivered. These different systems are on their own CLINs, are FPIF and have their own target cost/fee & ceilings which are separate from the other CLINs, and each CLIN has its own period of performance and a requirement for its own DD250. At award, 1 FPIF CLIN for 1 of the deliveries (CLIN 0001) was funded along with some travel funding (Cost CLIN) and 1st period of lease space (FFP). During this time we submitted progress payment requests - on one 1443, which only included the total for CLIN 0001 - FPIF which is for the delivery of a system. Since we are small and its DoD, we are allowed 90% rate on costs, and received the 90% in payments. (Fee should not be included and was not.) During this time we submitted cost vouchers for travel - which the payment matched the dollars on the cost voucher. During this time we submitted an invoice for the FFP facilities - which DFAS witheld 90% of the amount due - to "liquidate" the progress payments being made on CLIN 0001. (Issue #1) Our funding for the above 3 are all on the same ACRN - which according to DFAS is why they liquidated because they do not look at the CLIN level, only at the ACRN level - unless its specifically called out in the contract that a CLIN is NOT subject to liquidation. Our PCO and ACO did not expect this to happen, the PCO at the time (we have had 4) issued a unilateral modification, but instead of calling out CLINs that were not subject to liquidation, according to the ACO the language used calls out ALL FFP/FPIF CLINS to be eligible for progress payments. We did not need progress payments on the FFP - lease clins as we were billing a pro-rated basis monthly (total/12months). So we are not comfortable with submitting another invoice against our lease CLIN for fear of it being liquidated as the previous one, so is the ACO, which stated DFAS liquidating these will make the amounts of the master progress payment incorrect. I am waiting on the current PCO to weight in on this issue and hopefully issue a modification with the original language we were expecting. Q: Is the PCO even allowed to exclude CLINs from liquidation? Currently, the other FPIF CLINS have been exercised and funded (again they are for a delivery of a separate system). Each of our FPIF CLINs have a period of performance spanning 3-4 years each, CLIN 0001 which was the first to turn on, has a delivery date of 2019, whereas CLIN 0004 has a delivery date of 2022. It was our (the contractor's) understanding that each CLIN, since they are severable and separate in our eyes, would each have their own progress payment form. The ACO states to put it on one form. I am hesitant due to the "liquidation" of invoices. I am waiting on our new PCO to weigh in. This is Issue #2. If we put all CLINs on the same form, as we delivered our systems and earned our incentive fee, if we billed for the incentive fee, wouldn't it be liquidated because we had other CLINs with open progress payments commitments? If so, this scenario means that we would never see any fee earned until 2022 when the final delivery is made - or even later when all the cost audits have been completed. Is it possible to have different progress payment forms for each of the FPIF CLINs for delivery of a system? If so, would we be able to invoice and receive any incentive fee earned even though the other FPIF CLINs are not yet completed and still receiving progress payments? The ACO didn't think DFAS would liquidate the invoice for incentive fee as we deliver the different systems, but I do not see any language that states this in fact I see the opposite and reading the liquidation as DFAS would liquidate all other amounts owed. Is it possible to get the basis or progress payments changed from based on cost to performance based? However, again each CLIN has its own milestones (SSR, PDR, CDR etc.), so we would still have the same question. If we have to track and perform at the CLIN level how can we get the progress payments to reflect the CLIN level - or is there no such option? I see there is language to allow something similar if the "rate of payment (%'s) are different, but that is not the case for us. Sorry its such a long post, I hope I included enough information on the situation. Any advise, opinions are welcome. This affects our long term budget so we need to understand completely how our payments are supposed to work or could work and get it documented in a modification/amendment.
  1. Load more activity