Cajuncharlie

Retreadfed, here, here! I thought I was something of a renegade for believing that the only pieces of the FAR that I, as a contractor, had to comply with, were the pieces within the four corners of the solicitation I was bidding or the contract I signed. Glad to see I'm not alone. My philosophy is that the Government should be happy for contractors to use best commercial practices and FAR principles, allowing them to perform more efficiently than the Government can. I also recognize that Government expectations include contractor compliance with the whole FAR. including Part 15. What contractors actually must comply with are the contractors' own purchasing policies and procedures. In my admittedly limited but lengthy experience, it's hard to get purchasing system approval without including more of the FAR than contractors ought to, imho. Many contractors seem to accede to DCAA pressure and include more and more of the FAR in their policies and procedures, until contractors are almost as hamstrung as the Government in their procurement processes. And here I thought one of the reasons they hired us contractors was because we can perform more efficiently -- silly me. The trend to require contractors to comply with the whole FAR and DFARS has been formalized in DFARS 252.244-7001, "Contractor Purchasing System Administration," whose paragraph ( c ) begins, "System criteria. The Contractor's purchasing system shall -- (1) Have an adequate system description including policies, procedures, and purchasing practices that comply with the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS); ..." (Bold added) How in the world did that ever get published? Will it ever be literally and fully implemented? Can it be? Again, not every contract contains this clause, but it clearly indicates the Government's attitude and expectations. In looking back at Retread's question, I thought this topic was about a prime and the Government, not about a sub and a prime. Did I miss something? Wouldn't be the first time. To get back to the topic at hand, as a contractor you can antagonize the Government by arguing and risk getting the kind of treatment that Vern described, or at worst losing the work, or at best delaying the approval until you give the Government what it wants; or you can cooperate by providing all the supporting documentation that the Government wants. In previous incarnations I have had similar differences of opinion with our estimators, and have always taken the attitude of making our initial submittal as easy as possible for the Government to digest and approve, and then providing whatever further backup is requested. The estimators eventually came around. It avoids a lot of friction, costs less in the long run, and makes for better customer relations, which is important for future business. I believe contractors should pick their battles with the Government, and know how to disagree without being disagreeable. Maintaining a level of business courtesy and practicing good manners is important. At the end of a contract, not only do I want to perform well and make my financial goals; and even if there were some tough issues we had to work through, I also want to be the kind of contractor that leaves the client with a favorable impression.

From FAR 52.244-2, "Subcontracts," paragraph (a): "Subcontract" means any contract, as defined in FAR Subpart 2.1, entered into by a subcontractor to furnish supplies or services for the performance of the prime contract or a subcontract. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders. (Bold added) Granted, that definition is "As used in this clause..." but in my experience this definition is a clear indication of Government expectations in all situations, and (sticking my neck out a little bit here) as far as I know, is consistent with the rest of the FAR. It has been my rule of thumb for years. But trying to make a distinction between and subcontract and a purchase order is not the point. The point is that every purchase above the micropurchase threshold needs some form of written price analysis (see FAR 15.404-1( a )( 2 ) and - ( 3 )), and the Government is entitled to see it upon request for the reasons noted in previous posts. If this is in support of an equitable adjustment, for a DoD customer, also see DFARS 252.243-7002( c )( 2 ).

Was "sublime" items a Freudian slip?

In my admittedly limited experience, even if you are demonstrably correct, it has not been possible to persuade the Government to change a past performance rating, even after review at a level above the Contracting Officer. They just will not admit when they are wrong. Others may have a different experience.

This particular contracting office has about 40 years' experience in-country, so I would assume they are current with Joel's points.

Boof nailed it. For reference, here is an example of a pertinent clause: H.x EMPLOYMENT AGREEMENTS The Contractor shall, within 30 days of contract award, furnish to the Government a copy of each type of employment agreement to be used by the Contractor for work performed under this contract and any subsequent revisions and updates thereto. Employment agreements are subject to Government approval and must meet requirements of (redacted host country) law.

Points well taken. Looks like the answer to the title's musical question is "No." "Neither favorably nor unfavorably," as you pointed out, logically requires throwing out past performance as an evaluation criterion. This defeats the whole purpose of asking for past performance information as soon as a proposal is received from a vendor who has none. There is a clear need for clearer thinking expressed in clearer language to balance the Government's interest in properly taking past performance information into consideration and the interest of fairness to new vendors.

Mtnberi, I feel your pain, especially if you don't keep a close eye on the auto-"correct."

sjst1, you're right, historical prices are not automatically fair and reasonable, although far too often they are treated that way. It's necessary in reading these bits and pieces of the FAR to read them all, including guidance "... if the reasonableness of the prior price is uncertain..." and "... information on the competitive proposed prices or previous contract prices is not available or is insufficient to determine that the price is fair and reasonable...". This tells me you gotta check the old file. I have always required in the documentation for the present purchase, the order number and date of the previous purchase and the basis for its reasonableness determination. If it was competitive and for the same item (most of our buys being COTS), include the names and prices of the competing potential sources, so the file stands on its own and you won't send an auditor on a big paper chase. If it was not competitive, a convincing write-up based on FAR principles is needed before I will sign. We don't need to chase fresh competition for the same thing we competed last week or last month, but part of my sermon is you can't build a new purchase on an old foundation unless you make sure the old foundation is solid.

Book: LOTR (H2H beat me to it) Album: Sgt. Pepper (What, no other Beatles fans out there?) Movie: The Quiet Man (agree with Vern) Tomorrow my answers may be different. Edited to add: Today my favorite poet is Robert Service. Edited again to add a tune from The Quiet Man: It was there that I learned all me courtin' -- Many lessons I took in the art -- Til Cupid, the blackguard, while sportin' An arrow drove straight through me Mush Mush Mush Tural-i-addy Mush Mush Mush Tural-i-ay. So I lathered him with me shillelagh For he trod on the tail of me Mush Mush Mush Tural-i-addy, And just like the Dingle for gold I lathered him with me shllelagh For he trod on the tail of me coat.

How many times have you heard "change order" or "amendment" used as a generic term for a contract modification? (I learned the difference under the ASPR, but I'm not quite old enough to have fallen under the AFPI.) How often do people use "provision" and "clause" interchangeably? It's hard to encourage precision in terminology without sounding pedantic, but it is important to be precise.

Maybe I'm quibbling, but I respectfully disagree with jrt132 based on the plain meaning of the words in the letter. This is, by its own terms, a "request" and neither a "demand" nor an "assertion." The contractor is asking, not insisting and not telling. With almost no context, it's a tough call, but I would say it could go either way. A key question is: does the Contracting Officer want to handle it as a claim or not? On one hand, if a contractor wants to submit a claim, it is incumbent on the contractor to make its case using clear, explicit, and unambiguous language. This letter doesn't quite get there. In my experience it's best to write to a Contracting Officer using words straight out of the contract clauses and the governing FAR guidance, framing the issues in terms I choose, to point toward an answer I want. On the other hand, this letter is a follow-up to previous requests, so it could be seen as taking the situation out of the land of equitable adjustments and into the land of claims, possibly imposing a duty on the Contracting Officer to handle it as a claim, or maybe simply motivating the Contracting Officer to close this matter with a Final Decision. Either way, I would document the file with my take on the request and the reasons for it, and go from there. Before documenting the file, my next step would be, as is my wont, to look this up, first to RTFC (in polite language, read the f-f-f-full contract), then the pertinent points in the rest of the FAR and any applicable agency supplements, and if that's not enough, hit the rest of the books. But that's beyond the scope of this discussion.

"... to miss New Orleans." Quoted from that eminent philosopher, Louis "Satchmo" Armstrong.

Between 2006 and 2011 when I worked in downtown New Orleans, Mardi Gras was not a company holiday, which was unusual for the city, even moreso because my employer was headquartered in Baton Rouge. Nearly all my co-workers took a vacation day, but I used my local knowledge of secondary routes to sneak to and from the office, where I had a 14th floor view of the parades on St. Charles Avenue. Pete Fountain's Half-Fast Marching Club, Krewe of Zulu, Rex, and more went right past, with all the pageantry of the beautifully decorated floats with people in costume, marching bands, and tourists and children eagerly catching beads, toys, and doubloons. Unlike the crowds, I had a chair, coffee, water, and most importantly, a rest room, while enjoying the festivities far from the bawdy French Quarter, and getting paid for it. Here in Riyadh now, I know what it means...

You could always go in alone, and for each point of discussion, take it under advisement because you need to consult with your subcontractor, or whomever. But Dingoes' approach is better.

Back in the early post-war years, companies wanted engineers because they are taught problem-solving skills. Later, companies wanted liberal arts majors because they are taught to think. The best contract administration practitioner, manager, and director I ever saw was a retired E-9 who has no degree. I'm like the Don, BA in Spanish. To me a degree, any degree, means discipline and persistence, among other things, but for anyone who is not a new grad, in a hiring decision I place high value on practical experience, the things we learn on the job that are not necessarily quantifiable.

Bob, thanks again for all you do for us. We tend to take you for granted and forget that there is a real live human behind the curtain. We do appreciate you.

FAR Fetched, is your friend still hiring? No, the questions should not be hard for journeyman level, and certainly not for candidates for a senior level department head. Just kidding about hiring; my current job looks very good for the next few years until retirement.

I hope this project and the rest of the SELA work proceeds promptly and professionally. This particular one hits close to home.

For seven years or so, I worked for a company whose normal work schedule included choices, along with 5 X 8 hour weeks, 9 hours Mo-Th and 8 or 0 hours alternate Fridays. This was part of a timekeeping policy that was part of an approved accounting system. The business entity that I was in worked mostly federal contracts, but the work schedules were corporate wide, subject to change based on project or contract requirements. Most of the time, where I worked (not in Government facitlities), the system was allowed as long as there was coverage each Friday, such as half the section on "A" schedule and the other on "B" schedule, or even coverage by remote support from out of town with contact information in an email out-of-office auto-reply. The only time I was not allowed to work that schedule was on a very high value, high profile, short schedule mega-project, when I worked all the hours I could stand. It is a wonderful system, not only a great boost for morale, and although I don't have the metrics, the perception was that it actually cut absenteeism by allowing weekday time for personal errands. I disagree with those who would not allow a contractor to use it unless there are very specific performance requirements that such a schedule would not support.

Just out of curiosity, was the consideration offered in exchange for the time extension monetary, or some other form, maybe additional work desired but not originally specified? Everybody seems to have assumed it was monetary, but if that was written in any of these posts, I missed it. (It wouldn't be the first time.)

Although I certainly qualify as grizzled, I am no expert on such matters, but I thought you had to run afoul of Title 18 to risk jail.

More points well taken. Most people think a mandatory flowdown clause is simply to be copied and pasted into the subcontract. My intention was to point out that this is not always the case, and that certain clauses require more thought.

Joel, points well taken. I did read the current FAR clauses before I wrote, and 52.232-27 ( d ) does permit the prime to retain a routine general amount or withhold a specific payment from the sub, but you are absolutely correct that anything retained or withheld from a payment to the sub cannot be billed through to the Government, or as Robocop said, there will be trouble. I should have added the same caveat as I did for the Disputes clause, that this requires careful decisions based on careful legal advice, and careful legal writing. My main points were RTFC and make sure you are covered for the subject matter of every clause.

There is a third type of not-quite-flowdown clauses that you should also be aware of. These are clauses that you cannot directly flow down, but cover subject matter that you must cover in your subcontracts, or to phrase it differently, give you risks, rights, or remedies that you may want or need to flow down to your subcontractors. One example is the Disputes clause at FAR 52.233-1, which you can't flow down directly because a sub has no privity to file a claim with the Government, but you and your attorneys need a clause that deals with disputes. Do you want a clause that deals only with disputes between prime and sub, or do you want also to provide for sponsoring a sub's claim to the Government at the sub's cost, with the Government's decision as final? Complex issues here require careful decisions based on careful legal advice, and careful legal writing. Another example is the Prompt Payment for Construction Contracts clause at FAR 52.232-27, again not a direct flowdown (?), but a close reading of the clause finds that paragraph ( c ) requires you to include in each subcontract a clause that provides for your prompt payment to your sub and interest penalty if you don't, plus further flowdown to all tiers. Some companies simply flow the thing down as is and trust that the context will make the meaning of the clause clear if push comes to shove, but to me that has never seemed a good way to do business, and almost as bad as flowing down all of H and I, or as some primes do, the whole prime contract with a few caveats. IMHO this situation deserves a carefully crafted clause, particularly in view of the complexities involving subcontract retainage that's kept for general purposes, funds withheld from subcontractor payments for specific performance issues, and what can happen to the prime if subcontract payments, retainage, and withholding are not carefully coordinated with prime contract billing. The main point is to read all of your prime contract clauses carefully (RTFC: in polite language, Read The Full Contract) and make sure your subcontracts cover all the subject matter in an appropriate way that protects your company. You do not have the Christian Doctrine to incorporate anything into your subcontract that you may have forgotten. If you miss something, your company as prime may have obligations to the Government that you cannot look to your subcontractor to fulfill. Also, legal issues between prime and sub are generally subject to state law, not federal, so your subcontracts need just as much attention as the prime contract.