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dwgerard

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Everything posted by dwgerard

  1. Working at Risk

    Thanks for the correction Vern, but that leaves the original question unanswered; what mechanism do we or anyone else in the acquisition system have to obtain non-optional supplies or services in the event that funding is not available to the ordering agency? Do we just send out a foraging party, confiscate private supplies or do we release the troops and tell them they are on their own? I realize this is not a likely scenario, but it is possible. It is happening in some countries today, and has happened in our past. It CAN happen again, so I think it wise for us to know if there is a means of obtaining the required supplies or services without descending into anarchy. Perhaps there is no answer to that question and anarchy will be the result. I hope not, because anarchy is much more difficult to recover from than would be a temporary and defined relaxation of the appropriation laws.
  2. Working at Risk

    I complete agree with what you say and I have done exactly this in my current job a number of times over the last year. In my case, I have actually prepared the stop work notice and sent a preliminary copy to the funding agency which prompted them to send the funding within 2 hours in a few cases and by the next day in all the rest. The problem will come when we have a function that cannot be stopped, such as sanitary services, non-optional provisioning and the like. If the garrison or perhaps even the agency itself does not have the funding to pay for those supplies or services, what mechanism do we have to continue those services or to obtain those required supplies? When I say we I mean everyone, not just contracting. The crux of the question is not when the funding is available and the funding agency is simply stingy or unwilling to fund the activity. The problem I am concerned about is when Congress has not appropriated the funding or has not appropriated enough to cover all of the requirements that includes a non-optional supply or service. In that case there is no funding available to the agency. In essence, what do we do when the "do more with less" is impossible, and we are faced with a day in August of 20XX when the account reaches zero and we still have 100,000 troops to feed? Is there a way to deal with that other than to demand funding from Congress or another agency? Is there a way legally that the supplies or services could be obtained with a promissory note of some sort and not actuall funding?
  3. Working at Risk

    BS? If it were completely impossible, then why did they add 50.101-1 to the FAR? I agree it is unlikely, perhaps in the extreme, but not impossible. Yes, we could stop all the contractors for working, but we still would need the food to be delivered, and in that unlikely probability, we would need a mechanism to obtain the supplies without having the funding available to pay for it. It has only been a bit over a hundred years since we were in that situation in the Civil War. In my opinion it is more unreasonable for a person to believe those extremes cannot happen again than it would be to me to believe they could.
  4. Working at Risk

    I understand what you are saying, and agree with the premise that those in charge are responsible for providing the funding. The problem is that does not answer the question about what to do if there is no funding available for those in authority to provide. If there is no funding, do we simply turn off the dining facility? I agree that it is not the contracting officers decision, but what mechanism do we have to ensure that the troops are fed? Do we turn them loose to forage in nearby areas? I would say we start selling property to obtain the funds for feeding the troops, but that is also illegal. What do we do? If those who are responsible for the creation of the ADA law do not follow the law themselves and do not live up to their responsibilities, are we still bound to the restrictions that they themselves fail to adhere to? I realize this is a very unlikely hypothetical question, and the OP does not rise to that level. I do believe we need to know the answer to this question though, because it may eventually happen if our political leaders continue to play the games they seem to enjoy so much. Right now the only solution I have seen is the clause that LEO posted, but you have said that clause is also inappropriate. Edit: I believe I found the answer to my own question- 50.101-1 Authority. (a) Pub. L. 85-804 empowers the President to authorize agencies exercising functions in connection with the national defense to enter into, amend, and modify contracts, without regard to other provisions of law related to making, performing, amending, or modifying contracts, whenever the President considers that such action would facilitate the national defense. ( E.O. 10789 authorizes the heads of the following agencies to exercise the authority conferred by Pub. L. 85-804 and to delegate it to other officials within the agency: the Government Printing Office; the Department of Homeland Security; the Tennessee Valley Authority; the National Aeronautics and Space Administration; the General Services Administration; the Defense, Army, Navy, Air Force, Treasury, Interior, Agriculture, Commerce, and Transportation Departments; the Department of Energy for functions transferred to that Department from other authorized agencies; and any other agency that may be authorized by the President. "without regard to other provisions of law" = a provision allowing contracting without adhering to the ADA and other laws and regulations such as appropriation law.
  5. Working at Risk

    Don, If it comes down to obeying the ADA or feeding troops, which path would you take? Essentially, following the ADA in a dining facility situation where the funding was not made available means the troops don't eat or are forced to survive on MRE's. Yes, the law says one thing, but is the law so ironclad that it means we must figuratively shoot ourselves in the leg? This case does not seem to be that stark, and I bet the garrison has the funding available and is simply withholding it for some reason. I am working on some contracts that are in that situation right now. I have managed to get the funding nevertheless, incrementally, as I have told them I have no problem issuing a stop work notice if they fail to provide the funding in time. My situation is for training, so it is less critical in my opinion than funding for a dining facility. I might not threaten a stop work notice so easily in that situation.
  6. Late proposal?

    In my opinion, 3:00 pm last 60 seconds until it becomes 3:01 pm. If your IFB said proposals were due at 3:00 pm, then they would be on time so long as they were there before the clock read 3:01pm. If your IFB said proposals were due BEFORE 3:00 pm, then they would be late immediately upon the clock reaching 3:00 pm. Does that make sense given what your IFB says?
  7. When I worked with a Defense Contractor a few years ago, they had a section in all their Government contracts dealing with Business Class travel. Basicially, all intercontinental flights the company made were to be in Business Class, scheduled to fly overnight and work would begin upon arrival. During my time with that company, I made numerous flights to Asia, all in Business Class and all involving both overnight flights and some work while aboard the aircraft. From what I see, if its in the contract, and the Government signed the contract, then DCAA must abide by the terms of the contract. If DCAA believes those terms are incompatible with the regulations, then they should seek a ruling through the appropriate legal forum to resolve the matter. If the Business Class travel terms are not in the contract, then the contract only needs to meet one of the exceptions listed in the FAR should Business Class travel be required. If the Contracting Officer agrees with the contractor's reasons for the exception, then DCAA should not be able to override that determination without obtaining a ruling from the appropriate legal forum for such disputes.
  8. Contracting Officer Testing

    I have wondered about what you wrote above for a number of years now. I have applied for a number of positions at DAU, emphasizing the fact that I was a doctoral student and have experience teaching at a community college. That MAY have been a mistake, as I never even received an invitation for an interview. It appears that DAU does NOT WANT real university faculty, they seem to want rote instructors who may or may not have any experience in what they are teaching. Nothing against those individuals, but it seems to be the truth from my viewpoint.
  9. Contracting Officer Testing

    I agree with Vern on most of his points but I have had experience with a multiple choice test system that did test comprehensive knowledge and reasoning abilities. That test was the Series 7 General Securities Representative Examination, an 8 hour 2 session test that had a higher failure rate than the bar exam in California when I took the test. The questions in that test required a lot of knowledge, logical reasoning, and also an ability to understand a complex written problem in order to answer the questions. I used more scratch paper in passing that test than there were test pages and while the test did not test my ability to communicate orally, I could not have passed it without a very good knowledge of the subject AND an ability to interpret written problems sucessfully. Would a series of essay questions improve such a test? Perhaps, but I don't think the improvement would be significant given the complexity of the questions in that test. Also, how would the subjectivity of the grading official play into the grading of an essay question? Yes, in a perfect world that would not be in question. The trouble is we do not live in such a world, as I clearly understand facing some particularly subjective grades I have received in my doctoral program over the last year or so.
  10. Formerfed, Think of it this way; the funding is not resident in an incorrect line of accounting-DFAS won't pay based on the incorrect LOA and there is no funding associated with the LOA, assuming the error does not lead to the LOA being a duplicate of another LOA that is correct. I am assuming that this is not the case in this situationi. In zeroing out the incorrect LOA, you are not deobligating funding-there is no funding associated with the incorrect LOA. In adding the correct LOA on another subclin, you are not adding funding, you are revealing the correct funding that was assumed to be there prior to the discovery of the error. The funding should be still resident within the finance system in your organization-it was assumed to be obligated up to the point when the error was discovered. If the funding is there, and associated in the finance system with the contract or order, then correcting the error by adding the correct LOA is NOT a new obligation, so should not run afoul of the FY rule. You WILL have to explain this with your finance division, leadership, etc. should it involve the crossing of the fiscal year. I have had to do so myself, and have not run into any significant problems. Baierle is also correct. In our methods of adding funding to a clin, the funding line itself with its LOA is an information only subclin and does not obligate the funding. The obligation occurs in the clin from which the subclin depends, and the clin does not have an LOA listed. So the obligation occurs via the clin, but the LOA information is contained in the subclin. I believe that they had the original posted problem in mind when this system was created. The alternative is to allow a clerical error to determine funding, and to allow the computer software to have more control than we do. I choose not to allow that if at all possible.
  11. Jodivs, In our office, we simply zero out the funding contained in incorrect line of accounting, make a note in the description block as to why (incorrect LOA), and cite what new subclin (by number), we are adding with the correct LOA. Then we incorporate the PR line with the corrected LOA as a new subclin, adding a note in the description block citing the original subclin number that we are replacing and why. This has satisfied DCMA, DCAA and DFAS, and several internal reviewers in the past. It is not as simple as it was in my earlier job in DHS where I could simply correct the LOA within the same clin or subclin, but I have not found another way to correct a LOA problem in SPS/PD2.
  12. Training programs

    Scott, Part of the problem is that policy and other reviewers won't accept any "original" thoughts when it comes to contracts these days. They are so worried about protests or outside reviews that they pick the best work from the last few contracts and then distribute it as a template, refusing to approve anything that does not conform to that template. That even goes to awarding anything outside of the usual TO/DO from our family of ID/IQ contracts. Today I have to go through an entirely separate approval process just to award anything except one of those orders, such as a stand alone contract. Vern, I am not sure if this is pertinent, but in my master's research project, I was required to construct the project as a full thesis, with literature research and current information written, and approved by the thesis review committee, before I did my original research. Perhaps Worlbird's project has a similar requirement.
  13. Who's afraid of the Anti-Deficiency Act?

    Unfortunately those kind of violations of the Anti-Deficiency Act are far too common. I fought hard against one in a previous job, where the client described the construction of a building on a vacant lot using OMA funding as a "renovation", and then considered a $1.3M estimate as "within the regulations". When I notified the KO of the facts, he overruled my objections in favor of moving forward with the acquisition. The opinions of our legal counsel also failed to dissuade the KO from deciding to go forward with the solicitation and award. That situation was a factor in my decision to leave the Federal Service for a job in the private sector. I have since returned to the Federal Service, but I have not considered any office that deal with construction, hoping to avoid those kind of problems.
  14. Estimated costs are used when you are dealing with unknowns due to possible discounts, future values or other variables that make a sum certain cost impossible. In this case, you're dealing with the present, and the systems in questions have a known value that can be documented. The subcontractor should simply show how much the new system will actually cost right now. Then the subcontractor should show how much it paid or would have paid for the deducted system right now, adjust according to the proposal values, discounts offered or other factors, plug in any other pertinent costs and voila; the subcontractor will have the actual delta between the 2 systems. It is easy to argue over estimated costs, but not so much when there are actual costs. Give the Government the actual costs along with your price worksheets and welcome their efforts to find better prices should they disagree with those figures.
  15. Does anyone else find it somewhat telling that the KO is asking the KTR to provide the FAR regulation and not informing the KTR of the FAR regulation? eklene, personally I would supply the KO with the EDGAR regulation and highlight the word MAY. I would then tell them that you could not find a FAR regulation that deals with that subject. At that point it fall upon the KO to decide if he or she wants to restrict or seek a restriction of the transfer as per the EDGAR regulation. Regarding the FAR, the KO should know that body of regulations and find it his or her self. Be sure you have your reasons for making the transfer at hand and be able to explain how the transfer would benefit the contract performance or improve efficiency without imposing a penalty on the Government. Personally, as a Contract Specialist or a Contracting Officer I would be ashamed to ask a KTR for a FAR regulation that I was too lazy, too stupid, or so unable to read that I could not find it on my own! By the way, in a quick search of the FAR I did not find anything in the FAR dealing with your specific situation.
  16. What are you reading?

    I wish I could read a book, any of a number of books I have waiting for me, but I am in the midst of my dissertation and I dare not take any time away from that else I will most certainly fall behind. I have promised myself that I will read to my hearts content once I turn in my final document and complete my defense, but until then Barnes and Noble are unfortunately off limits.
  17. Just saw this tidbit this morning, it seems a Senator from Mo (the show me state), has a beef with Alaska Natives getting unlimited value sole source contracts over other small businesses such as the 8/A program contractors. 8/A contractors are restricted to sole source contracts valued at no more than $3.5M or $5.5M in manufacturing. Personally, I am more interested in whether or not my personal feelings are true that many of the ANC contracts involve a bit of fraud, but I guess that is not what the Senate is concerned about. My personal beliefs are from a number of unsolicited proposals I received a few years ago that did not pass the sniff test when I did a little research into the offers. The marketing techniques used by the ANC reps were also a bit on the unsavory side as well. The fireworks over this should be quite interesting if it gets any traction in the Senate as a whole. http://www.govexec.com/story_page.cfm?arti...7&dcn=e_tma
  18. Sexual Harrassment

    I agree with Vern in this, but the reality of the situation is that the issue of sexual harrassment is also a political and public affairs issue should senior officials and the media get involved. Once that happens, the prudent and measured rules of contract adminstration will get run over by leaders and managers who will do whatever they think will turn off the heat and pressure they will be under. In the end, those leaders and managers may well decide the KO is responsible for dealing with sexual harrassment from a a contractor the same as a supervisor would be for his or her employee. I have seen similar situations where executives have expected the KO to either treat a contractor as an employee or did so themselves in a non-personal services contract. In 1 case I am aware of, some personal items were stolen in an office where a contractor worked. I was not the KO, so I do not know the details, but I do know the KO was pressured to "counsel" the contractor, and when he refused, the executive did it herself. The KO was not in good graces with the agency for some time after that. Was that the correct way to handle the problem? I think not, but I also do not get to decide when those problems arise, I just get to advise my managers and leaders and hope they make the right decisions. In cases like sexual harrassment, I fear they might make the wrong decisions because they are listening to the wrong people and fearful of those people more than they are concerned about proper contract management.
  19. PALT

    There is no 1 size fits all PALT in my experience. The reason is that the PALT is dependent upon how long it takes an organization to process the request, solicit a contractor and execute the contract action. Some offices can do that in a week, others may take a year or longer because the first office regularly buys the same materials or services all the time and the later deals with major programs that require months of reviews, separate RFP and solicitation processes and many, many signatures from very busy people. Also, since the PALT tends to deal with internal processes, it may be difficult to find PALT information. In my experience, the PALT in an organization level contracting office is approximately 45 days for basic delivery/task orders, modifications and small purchases, 90 days for large program delivery/task orders, major contracts (described in 1 office as $500,00 or more in value) and 120 days for large requirements that required agency level approval. Those lead times are too short for offices that deal with primarily large contracts such as the NAVSEASYSCOM headquarters office where I worked a few years ago. In that office, in my division, nothing took less than 6 months from the initial requirement to a contract award, the average was closer to 1 year to 1.5 years. Other offices may never take more than 5-12 days for any purchases they deal with, so a PALT for them may be measured in hours.
  20. The DoD 23 Point Memo

    Sending out a memo with lots of lofty ideals like "set shorter program timelines" at the same time issuing mandatory additional bureaucracy steps is like Mr. Carter saying "You will build a ship faster, but you also have to wear lead boots to do it!". In other words, his 23 points do not match his own actions, so they are so much smoke and mirrors. Example: DoD has instituted mandatory "peer review" processes, that are 10% peer review and 90% additional management bureaucracy and red tape. It now takes no less than 2 additional WEEKS in the acquisition milestone schedule just to SCHEDULE the peer review board and get all the parties in the same room at the same time. Example: There are now 2 different, fully staffed, cost and pricing teams reviewing every acquisition over $10m in my office. 1 C/P team focuses on the IGE and reviewing proposal pricing, the other just has "oversight" over the whole process and gets to add their 0.02 to the solicitation process. Time added to the acquisition milestone schedule for the second team is probably about 1-2 weeks to accomodate their "oversight", meaning meetings and an additional set of changes required at various milestones in order to move on to the next.
  21. KC-X Tanker Competion via Sealed-Bid?

    I completely agree with Brian, Former Fed and Vern on this subject! I have seen a number of contractor literally sit in the parking lot and look at their watch so they could deliver their proposal or sealed bid at EXACTLY the last minute. Why? I have been told it's so they could see who else was proposing, but they could have done so AFTER they submitted their own package. It makes no sense whatsoever to risk being late by such behavior! I believe that in the case of a contractor who ran up 5 min. late for a $20M solicitation, and even more so in the case of a $35B opportunity. As a person who has been on the contractor side of the negotiating table, I personally ensured that the proposal packages I was responsible for were delivered at least 12 hours before the cut off time, depending upon the means of delivery. When packages had to be delivered by hand, I made that 24 hours in advance, and I also made a dry run prior to actually delivering the package to ensure that I was prepared for the traffic, construction, security and knew the directions to the correct office. If I could do that as a $70K Senior Contract Administrator, why can't a $120K Proposal Team Leader not do the same?
  22. Insourcing

    I have seen the insourcing process down here in the weeds but we worker-bee's are not privy to the details on how its working from a management viewpoint. So far it has affected office support positions mostly, resulting in some contractor personnel being selected for government positions and others losing their positions as the contract for those services is ended. The transitions have been timed to coincide with the end of the current contract completion date or end of current option period. From this view point, the status of the contractor that is being let go due to insourcing is not the focus of that effort and is irrelevant. I have not seen any resistance to the insourcing trend due to the small business status of the affected contractor so far, and I watch for such information via Government Executive and GAO information.
  23. CICA Problem?

    It's interesting to me to know why the agency chose to award an contract with multiple options rather than a requirements or ID/IQ contract. I wonder if they were trying to avoid the new right for contractors to protest delivery order awards over $10M, which most ship repair actions would likely to deal with.
  24. Would not the 4 delivery orders containing the new labor categories and signed by the KO indicate that the Government had de facto accepted the additional labor categories? To me, the issuance of the DO's is a case of implied acceptance of the new categories at a minimum, and express acceptance if the government acknowledged the new categories or paid any invoices containing costs associated with the new categories. FAR 46.407(g) states: Notices of rejection shall include the reasons for rejection and be furnished promptly to the contractor. Promptness in giving this notice is essential because, if timely nature of rejection is not furnished, acceptance may in certain cases be implied as a matter of law... The issuance of 4 delivery orders indicates to me that the Government was not "prompt" in giving notice that the new labor categories were unacceptable, however that is an assumption on my part given no information on how long it took for the DO's to be issued. If indeed the notice was NOT timely, then contract law and the FAR support the position that implied or express acceptance has occured. I'm not a lawyer, but I have had a number of law classes in my degree programs, the Federal Law Enforcement Academy and via DAU, and I believe the situation described by the OP is a case of either implied or express acceptance. If that is the case, then the Government is wrong to reject the new labor categories at this time after such acceptance through the issuance of the 4 delivery orders.
  25. Risk Management

    I inherited a contract that had been modified from FFP into a hybrid FFP/T&M type of contract because the customer claimed they needed that control due to budget fluctuations. In doing so, they claimed they would "cut costs" and ensure that budget constraints would be met. In reality, neither the customer nor the PM office were able to manage the contract properly. The contractor, who "reluctantly" agreed to the change from FFP to FFP/T&M, promptly added positions where it was short under the T&M CLINS, which the customer, PM and 1102 at that time did not catch. The result? The costs went up under the T&M CLINS above what they would have been should they have remained FFP by about 20%. The problem is that invoice reviewers did not even know what they were reviewing, COR's did not know what the contract called for in the PWS, and when changes occured, they did not know enough to recognize them. While I personally disagree with Mr. Assad about banning T&M, in this case it would not be a bad thing. The management abilities of the customer, PM, 1102 staff at that time and individual site representatives is not up to dealing with T&M and should be restricted to FFP.
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