Jump to content
The Wifcon Forums and Blogs

Cajuncharlie

Members
  • Posts

    229
  • Joined

  • Last visited

Posts posted by Cajuncharlie

  1. Has your customer increased the scope? If so, you would be increasing cost and fixed fee, ideally after receiving a requisition with the new scope, issuing an RFP or directing a change for the new scope, receiving a change order proposal or REA, and negotiating.

    If the scope has not changed, then we are in the land of overruns, and the fixed fee stays fixed. Still need a req, at least in most organizations I've seen.

  2. Here is a contractor's perspective.

    My impression, which could be wrong, is that some agencies do not rank proposals because if they did, FAR 15.506( d )(3) would require them to debrief "The overall ranking of all offerors, when any ranking was developed by the agency during the source selection...". It seemed to be part of a plan to keep debriefing information to the bare minimum and avoid the dangerous territory of documentation of a type that could be used in a protest.

    My usual practice is to refamiliarize myself on FAR 15.506 before a debriefing. Most of the time this is the closest thing I can get to an agenda. During a debriefing it is always a little surprising that the Government debriefer appears to be less familiar with 15.506 than the debriefee, and seems to be guided more by local procedure or practice than directly by the FAR.

  3. The short answer to your question is: No.

    Here is a longer answer: There are many different ways, all acceptable, to write amendments of solicitations and modifications of contracts. My personal recommendation would be not to make such a change, but just to tune up your replacement page method.

    In my 38 years in the business I have gravitated toward "search and destroy" page change type amendments as a best practice, much preferred over pen-and-ink (a royal pain) or a clean re-write with changes marked (kills too many trees).

    Problems with page numbering can be solved easily. First, use an instructions sheet, or summary of changes, that has a column for which pages to remove and which pages to replace them, for example remove page 4 of 26 dated March 2, 2012 and replace with pages 4 and 4a of 26 dated March 9, 2012.

    Note the best practice of dating each page, easily done in the footer of a word processing application (but don't know if or how this can be done using the applications that various government agencies use to write amendments).

    If you are deleting text, you can use a (mostly) blank replacement page 5 of 26, for example, that simply says "Reserved" or "This page intentionally left blank."

    Call me old-fashioned, but my preference is to execute contracts in duplicate original, with each party initialling each page including any exhibits, attachments, and drawings. That way, there is never any question of whether a page is in the contract.

    Just my $0.02 worth on the "administration" side of contract administration.

  4. Close. I've seen a couple that were mainly FFP with cost-only pass-through plug-numbered CLINs without any indirects, one RFP that contemplated only minor ODCs and one that contemplated some ODC equipment purchases of significant monetary value. Oh, and one cost element that should have been a cost reimbursement CLIN with a plug number, but wasn't, apparently because FFP was politically necessary.

    If the undefined effort being considered for a cost type CLIN is minor in terms of labor, no problem. If, however, it involves significant effort. it will need careful thought. Can you talk to your estimator to gain an understanding of his basis of estimate?

  5. 15.101-2( b )(1), which says the comparative assessment in 15.305(a)(2)(i) does not apply, is under 15.101-2, LPTA, which implies a pass/fail on technical merit, and logically would not involve a comparative assessment. In a best value rather than LPTA environment, a comparative assessment would make sense. I don't know which was the case with MANCON, although I did read it with great interest this morning.

    Edited to add: I just clicked on the link in the summary to get to the whole decision, and it was best value, so it makes sense that this factor should have been comparative rather than pass/fail.

  6. RTFC (Read The F-f-f-full Contract) for the points Vern noted; also check for FAR 52.246-4 and -20. Read both clauses together. They are tools that should by in your FFP services toolbox.

    The -4 Inspection clause at (e) deals with defects in services that cannot be corrected by reperformance and allows the Government to reduce the contract price to reflect the reduced value of the services performed. The -20 Warranty clause requires notice to contractor that specifies whether to correct or reperform, or the Government does not require correction or reperformance. Also provides for equitable adjustment in contract price when correction or reperformance is not required.

    Classic example of nonperformed service that cannot be corrected by reperformance is daily sweeping and mopping. Contractor can't make Government whole by doing it twice the next day. The only logical remedy for nonperformed work is not to pay for it.

    Even if you don't have quite the firm foundation that Vern described, you could discuss this with the contractor, summarize what the clauses say, and see if the contractor is receptive to the idea of offering a price reduction. If not, and they want to play hardball, you know where you stand, and you can let the contractor know that two can play hardball.

  7. Some thoughts based on the perspective of one who started in the business with five years of USAF base level civil service employment, then went into the private sector, mainly in heavy construction, but also technical services, both domestically and internationally, working federal and commercial prime and subcontracts.

    Training - With the government, at least in the better work environments, continuing education and training opportunities are generally greater than in the private sector. I had more formal training in my five years with the government than I had in the next 30+ years.

    Experience - Government contracting folks, especially in DoD, often have opportunities for handling larger value contract actions than most in the private sector.

    Compensation - Job security, defined benefits such as insurance, and retirement benefits are pretty stable and well-defined in government service, although the regular paycheck may not be as large as in the private sector. Particularly in the construction business, people work from one project to the next, changing locations and employers every few years, seldom long enough to have an "automatic" retirement plan from one's employer.

    Interesting that you thought the private sector wold provide opportunities to progress to a controller or finance role. Some companies put contracts under finance. I for one would not want to work there. Financial types, in my experience, tend to have a limited perspective, and lack the broad organizational knowledge and integration skills that the best contracts people have. Other companies have contracts under legal, more in my comfort zone. Understanding how all the moving parts of a business mesh, knowing how to tell the difference between wheels just spinning and gears meshing productively, and being able to help resolve disconnects, are important and satisfying parts of private sector work. Other companies have contracts under legal, more in my comfort zone.

  8. 1102forLife, welcome and thanks for your first post.

    On the contractor side, our company is moving towards electronic files for prime contracts (in Adobe's Portable Document Format or some other format that cannot be edited), but not yet for subcontracts. We are, however, required by FAR to keep original hard copy records for one year before we can shred them and rely completely on the electronic copy.

    Going paperless is something that should have been done a long time ago. In my experience, which goes back to punch-card batch processing computer system days (any ex-USAF folks remember CIAPS?), computers have made it possible to create more paper, faster.

    In one company I worked for, we were designing a Foxpro-based system that would take a transaction from requisition through purchase order, receiving report, invoice, check request, and payment, with a branch for property tag as needed. The conservative accounting folks wanted the design of the system to mirror the paper-based system, tracking each piece of paper through the process rather than making a process that does not rely on paper, because the paper process was what they were comfortable with. The result was a system that was just as inefficient as the old one, but allowed immediate visibility of the location and status of every item in process, which, in turn, allowed more metrics, more reports, more paper, and more inefficiency having to run reports, deal with metrics, analyze results, report on things that don't matter, etc.

    I too prefer reviewing documents on paper rather than on screen, but I am selective about what I print for review.

    We need to help make paperless happen. I am a believer in sustainability, and certainly paperless has significant cost advantages.

  9. My thinking is that the book answer is from FAR 16.306, as you noted. Some other initial thoughts:

    Your contract is with the prime, not the government. The government should be guided by FAR 15.404-3, Subcontract Pricing Considerations. Although that portion of the FAR is normally not included in prime or subcontracts, primes and subs should be aware of the rules that apply to the government and should take all relevant factors into account when making business decisions.

    In addition, the government will be looking at FAR 15.404-4, Profit. More specifically, 15.404 ( c ) ( 4 ) ( i ) reads, "The contracting officer shall not negotiate a price or fee that exceeds the following statutory limitations, imposed by 10 U.S.C. 2306( d ) and 41 U.S.C. 254( b ):" After ( A ) and ( B ) dealing with R&D and A&E work, respectively, the applicable part here would appear to be from ( C ): "For other cost-plus-fixed-fee contracts, the fee shall not exceed 10 percent of the contract?s estimated cost, excluding fee." Note this is guidance for negotiation, not after-the-fact renegotiation of a fixed fee, but it tells you something about the way the government people are trained and where they are coming from.

    No doubt there are other portions of the FAR, and other government guidance documents that others on this forum might be more familiar with, that influence the government's thinking on this, and result in government pressure on the prime, which of course flows downhill.

    These considerations are all based on the book and may not, on their own, provide a firm basis for a subcontractor's business decision. Customer relations with the prime and potentially also with the government would be another consideration.

    My $0.02 worth from a contractor perspective in the trenches.

  10. Good points, all. To pick up where ji left off, in the old days, for lump sum construction we used to have clauses that required the contractor to submit a schedule of values for review and approval, which then formed the basis for payment. Maybe they are still around, but I am extemporizing here, not doing research, just suggesting an avenue to explore with research. A good rule of thumb was to pay only for completed, measurable, usable pieces of work (milestone payments, not progress payments). Would it help your situation to use such an approach to negotiate some clarity into your contract via supplemental agreement?

  11. "When is a Subcontractor required to submit a Small Business Plan to the Prime?" When the subcontract requires it. One of the subcontract flowdowns, 52.219-9 Alt II, begins, "Proposals submitted in response to this solicitation shall include a subcontracting plan...".

    "Are we obligated to the expected percentages outlined in the Prime contract?" No, absent a specific flowdown that says so.

    Looks like the prime forgot about all this until reporting time came around. The sub does owe the prime a plan. Goals are negotiable but may be difficult to negotiate. A going in position for the sub might be a set of goals that make sense for the scope of work and the sub's in-house capabilities. Another factor to consider in this case would be the actual lower tier subcontracts in place at the time the prime remembered and began enforcing the flowdowns.

  12. In an ongoing cost-type contract, if the Government requests a proposal for certain work, can it deny reimbursement for the proposal prep costs? My understanding was that it cannot if it directed the contractor to do such proposal work. The Government is asserting that it did not receive any benefit from the proopsal prep work and is denying payment. The Government did not proceed with the planned work because it was too expensive. If the proposal prep costs are reasonable, allocable, and allowable, there would not seem to be a fourth criteria involving benefit. Any thoughts from anyone?

    Going back to the original question and information presented with it, this appears to be an RFP for a change involving additional work on a cost type contract.

    In that situation, if the Contracting Officer issues an RFP by letter whose subject starts with the contract number (as I have seen in the past), it makes little practical difference whether it's a request or a direction, as that is mainly a matter of courtesy in phrasing.

    Been in that situation for changes both small and large, and there was never any question of reimbursement under the cost type contract, even by a federal client whose mind-set ascribes no good faith to contractors, who are all viewed with suspicion as money-grubbers rather than ethical taxpayers with consciences.

    On the other hand, on a fixed-price contract, a proposal was requested for a partial redesign, we proposed, negotiated, agreed, certified our cost or pricing data, we were offered a modification which we signed in acceptance, then the government developed sticker shock and declined to go forward based on that new design. Under this fixed-price contract, we did not request an equitable adjustment for the cost of being jerked around on that change (and did not argue about offer and acceptance).

    We have observed that our federal clients, even on cost type contracts, have a fixed-price mind-set. This colors their approach to many situations. It should not make a difference whether the client perceives any benefit from the proposal. There is no fourth criterion (the singular form of the plural "criteria"), but arguably the client had the benefit of the cost proposal that it requested, useful for making that one go/no-go decision if nothing else.

    These proposal preparation costs would be allocable to an indirect bid and proposal pool if they were for work entirely unrelated to the ongoing contract at hand and the proposal had not been requested under that contract. Otherwise, based on the information presented and the assumptions in my first two paragraphs, the proposal preparation costs should be considered direct and reimbursable.

    My $0.02 worth from the school of hard knocks.

  13. If I were administering CPFF work on the gov't side of the table I would be hanging my hat on 52.246-5 ( d )( 2 ) as the basis for withholding fee for nonconforming services that cannot be corrected by reperformance. If that clause is indeed in the contract or task order, as it should be, please understand that the withhold is authorized "to reflect the reduced value of the services performed" and not as a license for an unhappy customer to renegotiate the entire fee structure.

    The classic example from my ASPR training days is the custodial services contract requirement to sweep and mop daily. If you miss a day, you can't make up for it by doing it twice tomorrow. The remedy is monetary.

  14. Contract type? Sounds like T&M or Labor-Hour but can't assume.

    What is the specific question? Usually on this forum it's somebody else who asks. Discussions often take off on tangents, and it's hard at least for me to guess which ones will peter out quickly and which ones have proverbial legs, but my impression is that it's hard to get one cranked up without a clearly stated question.

×
×
  • Create New...