Cajuncharlie

Expect every agency has its own practice. I am accustomed to seeing DD Form 1155 task or delivery orders.

Construction. Just my $0.02 worth.

This explores previously uncharted territory: a claim based on the agency not following a regulation that is not within the four corners of the contract but is nonetheless binding on the agency. In other words, is a contractor entitled to rely on the agency to follow the agency's rules, even those outside the contract, and to claim if the agency does not follow those rules? Looks like COFC has placed some important guide posts in that previously uncharted territory.

So far, looks like ARRA goes to the top of the list, at least in the consternation and confusion department, mainly because it applies not only to federal contracts but also to any contracts with ARRA funding regardless of contracting authority: state or local government, boards, districts, universities, etc. If you think there are training and reporting problems for federal agencies to comply with all this ARRA stuff, just think about the impact on those folks who are unaccustomed to such requirements.

I'm in a recreational fiction phase. In the past week or two I've read Wilbur Smith's "Triumph of the Sun," Daniel Silva's "The English Assassin," and the updated edition of Nelson DeMille's "Mayday." Current night-time read is Stephen Coonts' "The Disciple." Good story-tellers, all.

In my office I have a copy of the old standard British government style manual, "The Complete Plain Words," by Sir Ernest Gowers. Unfortunately, somebody borrowed and failed to return my copy of Stunk & White's "Elements of Style." Often criticized for lack of charm but seldom equaled for clarity, for business writing it's hard to beat. My favorite paragraph: "Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell." Professor William Strunk, Cornell University It is certainly a relief that with the new legislation we can all look forward to less bureaucratese and more plain English.

There is one law that can always be relied on: the law of unintended consequences.

Also note the current Government trend to view T&M less favorably than cost reimbursement. Changes to FAR Parts 8, 12, and 16 are in the works to tighten the rules on T&M contracting. Your contracting officer will likely not respond well to the idea of a T&M subcontract unless you clearly show why no other type will do, and how you will control costs. A D&F a la FAR Part 16 and DFARS 216 is technically not a requirement, as noted above, but going to the contracting officer with either a strong supporting document if your prime contract requires it, or at least to engage in a dialog, that directly addresses the points in FAR and DFARS, would be a practical way to align your plans with customer expectations and allay some concerns. In your shoes I would document my subcontract file regardless of whether the document had to go to the contracting officer for consent.

My practice is to send the Contracting Officer the requested signature with a note stating that here is the contractor's acceptance signature on the document offered by the government. If any of them picked up on what I wrote, none of them has responded to it.

Thank you for sharing. As a contractor I have come across several situations in which the Government's contractor performance evaluations have been more harsh than the facts warrant, admittedly a subjective observation, and one situation in which the Government did not follow its own procedures for evaluating performance, but would not reconsider its evaluation even in the face of documentation that was purely factual and objective in nature, signed in the field by both Government and contractor representatives, that contradicted the Government's findings and did not support the evaluation conclusions. The Government gave the impression of wanting to stonewall rather than admit even the most minor error, in spite of obvious factual inconsistencies between evaluations and other Government documents. Of course a contractor would love to be able to hold the Government accountable for following its own procedures, or more accurately, not following them, regardless of whether they are within the four corners of the contract. Contractors are required to follow certain rules, and both as contracting parties and as taxpaying legal entities, should be able to rely on the Government to do likewise. The two COFC decisions did not provide that level of relief to the contractors who sought it, but did provide some interesting discussions that pointed to circumstances in which such relief might be granted. It appears that BLR lost because it failed to clearly state a claim to the contracting officer. Along the way, however, BLR made it through some significant hurdles, having asserted entitlement to relief as a matter of right, that the relief was related to the contract, and mootness. Even though the basis of the claim and nature of relief sought were clearly expressed, it was not done in the context of a claim and did not specify that it was indeed a claim. Having failed the test of having submitted a CDA claim, it could not logically pass the last test, that there was a denial or deemed denial of a claim. The discussions of bias, mootness, standard of review, and jurisdiction are most edifying. Todd apparently lost because it failed to manage properly its subcontracting effort, and no amount of subsequent argument about contributing factors, no matter how serious, could change that. Along the way, this case raised the subject of Christian in a new way, that contractors are happy to see. Like BLR, this case goes into the question of standing, and for whose benefit the regulations are intended, chasing the intent all the way back to the source to find in many cases that is it not only the Government but also contractors or bidders. To me it was especially interesting how the Court took part of Todd's complaint that was mistakenly limited to an Engineering Regulation and also brought in the FAR treatment of the subject to give Todd's point equitable deliberation. My thinking about the FAR and contracts has continued to change since I got into the business in 1974, and I hope it always will. With this kind of food for thought, in this kind of forum, we should all keep growing, learning, and changing.

FAR Subpart 15.4 is not that difficult to follow, and the reference guides basically expand and amplify what's in FAR. The reference guides are good, but in my experience there has been nothing on this subject written more clearly than what they replaced: the old Armed Services Pricing Manuals I and II. http://www.library.dau.mil/ASPM_v1_1986.pdf (edit 32.9 MB) http://www.library.dau.mil/ASPM_v2_1987.pdf (edit 12 MB) They may not be current on details, but for fundamental concepts and basic principles they are hard to beat, and may provide a good introduction for beginners.

Maybe it's just me, but I have trouble with the concept of "rates approved by DCAA." I always thought DCAA audited and recommended, but it took a warranted Contracting Officer to approve. Am I out of line?

Silly me! I thought a clearance belonged to a job, not an individual. In that situation, it would be impossible for anyone other than an employee of an incumbent (on at least some classified contract) to have a clearance. What did I miss?

At the risk of reviving a stale topic that folks may not be very interested in, let me offer a couple of thoughts. I have worked for companies that regarded the lowest priced technically acceptable quote as the place to start price negotiations. I always took a dim view of that practice, and certainly understand Vern's concerns about the ethics of negotiating price when there are solicitation provisions that describe a different process, but that's how many organizations do business. There may be room in the federal way of doing things, particularly SAP, to implement commercial best practices (if this indeed is one). On another aspect of this thread, I have seen times when agencies canceled solicitations because "all proposals were outside the awardable range." It took a while to find what that meant: by statute, public works contracts cannot be awarded at a price more than 25% over the gov't estimate (which excludes profit). As bidders in a small prequalified MATOC pool, we thought the agency was throwing the baby out with the bathwater. After several canceled RFPs, the agency finally called for discussions on a task order. We went in with responsive base proposal and more importantly an alternative proposal based on a longer schedule (nonresponsive to the original RFP) that allowed us to lower our price because of the availability of a specialized piece of equipment at a more favorable rate by waiting in line for it instead of paying a premium to use it within the agency's schedule. Eventually on that basis we won the job. The moral was, I think, it may be in the agency's and taxpayers' best interest to open discussions to find out what can reasonably be done or changed to fill a requirement within budget. It may not always work out by allowing an award, but at least it will give the agency a better idea of why a solicitation failed and an opportunity to align future solicitation requirements with market conditions.

One of my favorite "pieces" of the FAR, from a contractor's perspective seemingly observed most often in the breach, is 1.602-2( b ).

Again I find myself so old that what was taught when I was in school has eroded due to popular misuse, to the point where what used to be always wrong is now sometimes right. Examples: "comprised of" instead of "composed of" or "comprising" was always wrong but is now acceptable "judgement" (the only word I missed in 4th grade spelling) is now accepted as a correct alternative spelling although back then it was just plain wrong

Many thanks, Vern. You win the luggage.

Somewhere in the depths of the Federal or Joint Travel Regulations is a prescription to use 55% of the usual per diem rates for living allowances for temporary assignments over 60 days, or so I am told, but cannot find it. Can anybody steer me to the answer?

Nope. The only meaning of "bimonthly" is every two months. Twice a month would be "semi-monthly." We all know the difference between "semi-annual" and "bi-annual" (or for gardeners, "biennial"), but we all seem to get confused when we change years to months.

Yes, we are the prime, suffering from a flood of onerous paperwork demands from an inexperienced Contracting Officer who requires more than the FAR or the contract does. In this case, we had reached agreement with our subcontractor, subject to Contracting Officer's consent, and had submitted our package requesting consent, so the main requirement for us, and the additional delay, was to get the CCCOPD from the sub, pass it along to the Government, and wait for a consent letter. Our package had enough "information other than cost or pricing data" from the sub, and we had done and submitted enough homework to be confident that our price analysis was strong and well-supported. But with this customer, a subcontract price that's noncompetitive is not fair and reasonable, regardless of FAR Subpart 15.4, unless and until it has gone through the same kind of cost analysis that this customer routinely does in excruciating detail. In their eyes, any other method of determining noncompetitive subcontract price reasonableness is not only suspect; it's wrong. And they always want a CCCOPD in the absence of competition, again regardless of FAR 15.403-4 In a "partnering" meeting (I still don't know the words to "Kumbaya") we discussed price reasonableness, commercial items, and other subjects with the Contracting Officer, each of us making our thoughts clear, without reaching resolution of widely divergent views. Our views were so unconventional as to constantly assure compliance with our approved purchasing system and FAR Subpart 15.4. The customer constantly disagreed, questioned everything but our ancestry, and always wanted more. As we were winding up, the Contracting Officer, recapitulating, said, "So we are agreed that dredging is not a commercial item." My boss was floored. I spoke up before he did, and said, "We do not agree but we will obey." And we have. We went right back to our sub and told them we had talked to the customer and they must submit a CCCOPD, which they did, although it took time to get a letter out, get the certificate back, raise a letter and send it to the customer, and get a consent letter back. (We do important things such as these on letterhead with a "wet" signature, not relying on email other than as a means of quick transmittal, followed up by the original.) The overall result of all this is indeed delay and disruption to an already tight project schedule whose end date is fixed. There is no question in our minds that numerous changes on the project have resulted in acceleration of the work effort, although the customer almost certainly disagrees; and the constant demand for more and unnecessary paperwork not only means more delays, but also is another factor driving up cost at a time when our CPAF project is squeezing every penny. There are other changes for which we preparing the whole nine yards of proposals in the format from FAR Table 15-2, with a file dump from our approved accounting system. We had not thought to include copies of time sheets, invoices, etc. Will have to chew on that suggestion for a while. With this bunch, though, it seems the more detail we give them, the happier they are, the more they have to chew on, and the longer it takes them to respond, while the fast-track project schedule goes down the tubes, but of course it is all our fault since we didn't give them enough time to review a complex consent request. Hope this sounds more like venting than whining, but that's how it is in the real world, and maybe the newbies can benefit from some of these war stories from the trenches. Rookies, take heed. Your federal customers often remain bereft of practical business sense, blissfully ignorant of the consequences of their actions, and unaffected by any real understanding of the FAR, particularly 1.602-2( b ). Appreciate all the help with the musical question, "Is there anything that clearly says construction cannot be a commercial item for the purposes of an exception from TINA cost or pricing data requirements?" So far, it looks like there is not.

Yes, we have the DSC and VEQ clauses, and all the rest that one might expect, want, or need. Is there something I have missed that specifically prohibits calling construction, of a type not unique to federal customers, a commercial item? FAR 2.101 doesn't. Is our esteemed customer just giving us "tribal lore" or is there some policy guidance that we haven't found? (BTW miskeyed DY above but meant CY for cubic yards. Somehow I seem to be doing better this evening on the HackBerry than I did with a full size monitor and keyboard.)

Can't tell y'all how many times I've preached the sermon, don't try to second guess the market. The business development version goes like this: If you want to team with somebody because you need their resume to earn best value brownie points, fine. If you want to team with somebody because you think they provide you the best value, it's time for push-back. Let's send out a quick budgetary RFQ or mini-RFP, ask for qualifications and references along with budgetary price and schedule, and see what kind of results we get. You may be pleasantly surprised by what other potential sources can do for you. For little post-award projects that come up on site where multiple contractors are mobilized, people tend to say just cut a change order to so-and-so, or limit the bidders list to those on site. My thinking is we go full and open, best value, and see where that takes us. Even if you end up awarding to somebody already on site, you have competition on file, and a much cleaner file. Unless you need to go SB set-aside. If you have room on site for another entity and can get competition among SBs, go for it.

Also if your customer is DoD, watch out for DFARS 252.225-7001, Buy American Act And Balance Of Payments Program, JUN 2005. Follow the old rule of thumb: RTFC (read the f-f-f-f-full contract).

There was an old forum topic about construction as a commercial item, but its focus was primarily on the contracting process and form of contract, areas that do not help my current hypothetical concern. As a prime contractor on a Government job, we are subcontracting with our FAR-based approved purchasing system for construction on a fixed unit price basis, using a full set of FAR and company terms and conditions, including insurance, Davis-Bacon, Miller Act bonds, etc. My main interest in calling some kinds of construction commercial is the TINA exception to the requirement for certified cost or pricing data, as described in FAR 15.403-1( b )(3) and ?( c )(3). Examples include dredging and piledriving, added to current subcontract scope noncompetitively for work on a fixed and tight schedule in a congested area, not big money overall in the context of this prime contract or our subcontracts, but >$650K. We have provided a strong price analysis as described in FAR 15.404-1( b )(ii), -(iii), -(v), and ?(vi), previous reasonable contract prices, $ per LF of piledriving or DY of dredging, our independent estimate, and market research, respectively. That?s not good enough for our esteemed client, who insists on certified cost or pricing data. Our Contracting Officer is imposing a dichotomy that we don?t see: A job is either construction or a commercial item, but cannot be both. We disagree but have said we will obey. Our custoer remains unconvinced by our pointing out that dredging and piledriving are, as we used to say, sold in substantial quantities to the general public. Many different kinds of non-federal customers are out there for dredging and piledriving, not only state or local governments but also yacht clubs, marinas, real estate developers, and even rich private individuals. Are we all wet in thinking that construction can be commercial and TINA exempt?

Thought so, but still good to hear it from somebody with some distance from this mess. Thanks to all who weighed in.