Jump to content
The Wifcon Forums and Blogs

C Culham

  • Content count

  • Joined

  • Last visited

Everything posted by C Culham

  1. C Culham


    lotus – To an extent maybe. While I have already agreed that you are hosed an opinion I made in a general sense the facts of every situation vary. I did a little research and found this informative article regarding “Recovering the Costs of DoL Wage Increases Under the Service Contract Act” and it does discuss conformance. Here is a link. https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1256&context=hlelj Specific to your two questions I now say a contractor may or may not be hosed in either 1 or 2 as the facts will determine. I suggest that if the scenarios you have provided are important to you I would suggest finding legal counsel that is experienced in the arena of SCA and appeals to DOL, the Administrative Procedures Act, and the Contracts Disputes Act.
  2. REA - As I noted only a coincidence because I see their name on equipment, project boards, etc. as I travel around the PNW. Your question peaked my interest and I dug into my memory and the Dynamic Small Business Search (DSBS) website and SAM.gov a little deeper. Admittedly not scientific data analysis but all the same provided. You be the judge.... DSBS - Searched on active and previously certified 8(a) Program and Oregon buttons. Resulted in 191 profiles shown. I do not know nor did I look to see how far back all 191 profiles dated to, nor do I know how long DSBS has been around so not sure how far the archival information goes back but it did go back to the period I was with the 8(a) Program. I then looked at 47 profiles that I recognized names. Of the 47, profiles I looked to confirm whether they were in 8(a) in the time I was with the program. Of the 47 I found 18 that still had active registrations in SAM (within the last year so active in 2017/2018). Of the 18, 4 had a primary industry classification of construction and 14 had services that included reforestation, welding, A-E or other professional services, employee staffing, etc. I then turned to SAM I was intrigued that I did not see Ohno Construction or Benge Industries in the DSBS so I looked at SAM. Both are active but Ohno is from Washington (sorry the memory for exact data from a couple of decades must not work real well, I guess) and Benge uses a dba of Veraz Construction. SAM showed them as still active and I then found them in DSBS. Interestingly looking at Ohno they are considered not small business for some construction NACIS codes. Ohno's website is an interesting look into their current state and success of 50 years. Anecdotal number crunching absolutely, but my personal experience seems to follow the real data crunchers numbers where in my quick analysis showed me that of 47 firms 39% of the firms I recollected (confirmed) as being in the Portland District 8(a) Program when I was a staff member remain businesses today. Remember these are only the firms I remember so the exact numbers are I am sure a little different in a detailed analysis. PS - Once again I want to acknowledged this is a quick analysis on my part so please don't beat my data analysis abilities up. Just simply note that at least 18 firms that were in the 8(a) Program in the late 80's to mid-90's are still active today and are sprinkled with I will term very successful and recognized businesses.
  3. C Culham


    All is doable and I completely understand the concerns about the "doing" passing strict scrutiny. Agree but only the OP can provide the facts to sort it out. In my experience I have never had success with DOL confirming something outside their official processes and this is specifically related to conformance. The very point on which additional thoughts are based.
  4. C Culham


    You misread and hope that you will step back and appreciate the spirit of the conversation. Your thoughts are always welcome and I find it very, very confusing that in the context of this specific discussion that you now play the "poor me" card to avoid what I always anticipate, fruitful dialog.
  5. Back in the late 80's to mid 90's I worked for the 8(a) Program as the contract specialist/contracting officer for the Portland District Office. In this position as a government employee I gained significant experience into the view of the business world and the mind set of 8(a) firms specifically. Experience included not only assisting firms in understanding Federal contracting but experience in reviewing required business plans, monitoring the hoped for success of firms, internal audits of firms to ensure compliance with program goals and even assisting the business development of small businesses in total that wanted to do business with the Federal government. All the while working with Federal agencies as well and gaining experience in understanding their own mission needs and stated biases against small business set-asides and the 8(a) Program, much of which have been voiced here. During this period the 8(a) regulations were refined to help promote success. Pointing to at least two changes there was the stricter application of the 9 year term of participation in the program for a contractor and specific goals of business activity targets (aka competitive mix). These remain today. In my experience with the 8(a) Program there was the 1% of firms who could not or would not adhere to prudent business standards let alone the 8(a) Program requirements. For these firms they were removed from the program at the least and at the most referred to the USDOJ for specific criminal activity and or failure to comply with statute that fell within the DOJ authority to deal with. The other 99% really tried and some made it and many did not. There were failures in general but more importantly successes as well. Even today a couple of decades later I can point to at least three firms that exist to this day. With deliberate thought I could probably come up with more but I see these firms names actively involved in their line of work in my travels in the PNW. Benge Industries, Ohno Construction and Dirt and Aggregate Interchange. I suspect that like any small business that has succeeded their evolution makes them look different than when they were in the 8(a) Program but all the same they are successful. I will readily admit neither the 8(a) Program or the small business programs in total of the Federal government are perfect but following my line of thinking provided in my previous post I will take the less than perfect and the successes (which never get the lip service they deserve) over the horror stories that folks like capitalize on. With this noted and as I do with anyone I encounter in my small portion of the professional acquisition world if you want my full view just personal message me and I am glad to share my story, my experience, and my assistance on how to make the 8(a) Program work for you and for the sake of the program itself.
  6. C Culham


    Sorry I was disconnected for most of the day yesterday. Yes and in my original post in this thread is so stated. I am confused now because I thought you understood is was a different set of facts by posting "In writing? Have you ever seen that done? Would that be a FAR deviation? I'm not challenging, just asking." Agreed the process to conform a wage occurs after award and the act of conformance is also supported by specific statement on the DOL wage determination which I simply call to attention as 52.222-41 is not the only place in a solicitation and contract where conformance is provided. My concern in continuing this thread is I read you responses to indicate that if an astute contractor considers and anticipates the need for conformance during proposal preparation, offer and negotiation they are still hosed. You have provided, at least to this point, no alternative other than your strict interpretation that the FAR and its required 52.222-41 clause do not allow a contractor any alternative regarding anticipated or even the known need for conformance until after contract award and prior to performance and not through proposal preparation, proposal submission, negotiation and mutual agreement on award. If in fact I have read your posts correctly your conclusion is unrealistic. Consider for example lotus's last post as perfect evidence. A contractor would always be hosed because there is nothing they can do about DOLs power position of being the final say on conformance, a power position they are placed in because by your reasoning at least as I read it a contractor cannot do anything until after contract award because 52.222-41 does not allow it. As to the one alternative I have offered (and I could conjure up more) which is the suggested use of an option as I have offered I have taken the issue out of a labor compliance and into a negotiated agreement and insertion of an option into a awarded contract. It clearly works in a sole source and based on how I laid it out adding the option needs absolutely no other clause than the options clause in the resulting contract. You throw this in with regard to your review and challenge of my idea and again I did not propose it would fix lotus's issue based on a strict read of the scenario's lotus offered. What I offered was a way to lotus could be put in a position of not being hosed. A futuristic view. I do not believe this would be necessary as I believe prudently conducted and perfectly documented evaluations and negotiations would avoid the implied risks you state. an option would clearly work here as well and would require no additional clause other than the option clause. I suppose you would say how and quite honestly I will leave that to you to mull over as I believe that one could do it and whatever risk you would want to throw in there would/could be mitigated within the sidewalls of FAR part 15. To the discussion in total I pose to you - Can you offer an alternative as I have done? I and I expect @lotus and others would appreciate an alternative that would work as well. An alternative that would put them in a position of not always having to be hosed because you have provided, at least to this point, that 52.222-41 prevents a contractor from anticipating and addressing the unknowns of conformance prior to contract award and performance and they are to just take their lumps after contract award.
  7. C Culham


    So what does the clause 52.222-41 have to do with it? Nothing I say. Contractor at negotiation says that she will need to conform. CO and contractor agree and understand its DOLs call on a conformed rate. CO and contractor agree to a CLIN using the closest stated wage (the clerk1) which they hope DOL will accept and also add a T&M optional labor category via a CLIN, priced, in case they might be wrong on the rate that contractor is proposing and CO agrees with. The optional rate/CLIN is based on mutual agreement at negotiation table that DOL might go two bucks higher in the worst case. Option is conditioned that option will only be taken pursuant to DOL none acceptance of proposed rate. All the other stuff happens and contractor (either as sole source or competitive that allows for negotiation) is selected for award. Contractor submits 1444 prior to contract performance (after award) to CO who due to negotiations agrees with proposed wage rate. CO sends to DOL who has their say. Option exercised or not. In this example it is a negotiated stipulation with regard to an optional T&M labor category available on the contract. Option Clause will be stated on the SF30 exercising the option. Pulling in FAR 52.222-41 has nothing to do with it because it's not a price adjustment its exercising an option. I believe this way of handling could work even with using an unpriced option, it just makes the evaluation process for award when negotiations are allowed a little more complicated.
  8. C Culham


    Never did it related to SCA but have regarding other issues of unknowns. Remember specifically using an added option to do so. Deviation, why? It's not changing anything the FAR says you cant do. It's a negotiated stipulation. Fits FAR 1.102(d) too.
  9. C Culham


    A counter view regarding Scenario 2 - Depends. Conformance is a mutual effort that flows from the Contractor to the CO to the DOL. In this process the CO provides its agreement or not with the proposed conformed rate to the DOL with DOL having the final say. If in the process of the contract negotiations contractor was astute in providing to the CO advance information during negotiations on the need for classification conformance I could see that the CO and the contractor could agree that the contractor could get an adjustment to whatever the DOL decides. No clause of the FAR provides for this, but nothing says it could not be an agreed to condition of contract award (and so documented). TAP has provided the view if such a condition at award was not agreed to.
  10. C Culham

    Missing Clauses?

    I am being snobbish here and not even looking. As GSA Schedule contracts are based on FAR Part 12 I wouldn't expect the clauses you note to be there.
  11. No expert on the case in total but yes it was part of the argument by the VA/Government but they did not hold to using goal accomplishment as reason when the case got to the Supreme Court. Makes me wonder if they knew it would not hold water as I suspect again by experience with other agencies where I have never was told or knew by statements by others in agencies that set-asides would be or have been abandoned for full and open competition when goals were met, SDVOSB or otherwise. Or maybe the VA just picked the wrong thing to convince the Supreme Court on why their actions regarding their "rule of two" was the right approach.
  12. I haven't seen that when the goal is met that folks are done, whether coerced by regulation or because they want to continue on. But then again folks might say I have blinders on. I was reminded of my much younger days - "What, me worry?" "Not!" as couple of favorites of mine would say a few decades later.
  13. Well doesn't the FAR in total fall into this category as one could conclude that it as a policy like anything that comes out of the front doors of Congress is a lot of hooey. Not saying that FAR Part 19 is perfect but lost in the rhetoric of this thread is a discussion of the whole picture. A specific not even being discussed is that of unfunded mandates of Congress and the ability of, for instance, the SBA to provide the oversight and assistance necessary to insure something like the 8(a) program works. I for one believe that of the $442,486,733,745.14 pie in Federal procurements available for possible participation by all contractors in 2017 that small businesses would have received a whole lot less than their $105,660,294,868.78 piece without FAR Part 19. And that includes the XYZ small businesses that someday might be the Nike, Apple, Dell, Google, Amazon, H-P, etc. of tomorrow. Could be that I have drank the Kool-Aid but I think there is something to say in helping give businesses a leg up and at some point cutting them loose to fend for themselves. So I get lost in the dialog to add even more socio-economic engineering to the Federal acquisition monster by creating "medium size" businesses Lordy we are sometimes our own worst enemy! As to the book no doubt a great read. The authors are innovative thinkers and at times accomplish inroads. Congress does pay attention to them individually and through the entities they have strong association with. My concern is that they themselves and through the NGO's that they can effect change through have their own agenda's that may not be in the best interest of real improvement to Federal acquisition policy in whole or even in part.
  14. Random thoughts with no claim that they answer the “open market” question. Consider the CFR rather than the statute…. 41-CFR 50-201.1 The Walsh-Healey Public Contracts Act. The Walsh-Healey Public Contracts Act, as amended ( 41 U.S.C. 35- 45), hereinafter referred to as the Act, was enacted “to provide conditions for the purchase of supplies and the making of contracts by the United States.” It is not an act of general applicability to industry. The Supreme Court has described it as an instruction by the Government to its agents who were selected and granted final authority to fix the terms and conditions under which the Government will permit goods to be sold to it. Its purpose, according to the Supreme Court “was to impose obligations upon those favored with Government business and to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment.” (“Perkins v. Lukens Steel Co.,” 310 U.S. 113, 128 (1940); “Endicott Johnson Corp. v. Perkins,” 317 U.S. 501 (1943).) To this end, the Act requires those who enter into contracts to perform Government work subject to its terms to adhere to specifically prescribed representations and stipulations as set forth in 41 CFR 50-201.1 pertaining to qualifications of contractors, minimum wages, overtime pay, safe and sanitary working conditions of workers employed on the contract, the use of child labor or convict labor on the contract work, and the enforcement of such provisions. Except as otherwise specifically provided, these representations and stipulations are required to be included in every contract “for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000” which is made and entered into by an agency of the United States or other entity as designated in section 1 of the Act, hereinafter referred to as “contracting agency.” Contractors performing work subject to the Act thus “enter into competition to obtain Government business on terms of which they are fairly forwarned by inclusion in the contract.” (“Endicott Johnson Corp. v. Perkins, supra,” 317 U.S. at 507.) The Act also provides for enforcement of the required representations and stipulations by various methods. Certain exemptions from the application of the Act are provided in section 9 of the statute. Other exemptions, variations, and tolerances may be provided under section 6 of the statute by the Secretary of Labor or the President. [ 43 FR 22975, May 30, 1978. Redesignated at 61 FR 40716, Aug. 5, 1996] Consider this from the AbilityOne Program website….. 7. Where can Federal customers find the Procurement List and what are some examples of available products and services? The complete Procurement List is available to view and download on the website of the U.S. AbilityOne Commission, which is www.abilityone.gov. Many AbilityOne common-use products included on the Procurement List are also clearly identified in the print and electronic catalogs of AbilityOne-authorized Federal and commercial distributors, such as GSA Advantage!™ (www.gsaadvantage.gov), GSA Global Supply (www.gsaglobalsupply.gsa.gov), DODEMALL (https://dod-emall.dla.mil), and www.abilityone.com. Current product lines include aircraft and vehicular equipment and supplies, clothing, textiles and individual equipment, food processing, packaging and distribution, hardware and equipment, office products (e.g. pens, binder clips, paper products, etc.), environmentally friendly and recycled products (e.g. biodegradable disposable cutlery), military-specific products (such as chemical protective over garments and cold weather infantry kits) and medical supplies (such as catheters and surgical masks). Services include contract 26 AbilityOne Procurement Guide for the Department of Defense Chapter 4: Frequently Asked Questions 27 management support (close-out), custodial, administrative services, contact centers, document management services, fleet management, food service, full facility management, grounds maintenance, healthcare environmental/hospital services, laundry services, secure mail/digital document services, and supply chain management. A list of AbilityOne Capabilities is provided in Chapter 3. Finally to replace "open market" while not defined with "commercial item" as defined FAR term as its intended definition seems a slippery slope. While in quick research I could not find something that would help it would seem that the USDOL will determine in the end what "open market" means.
  15. Sorry that you took my comments to be rude and sarcastic. Was not my intent. I was truly mystified as to why you kept raising the question when responses had been provided regarding the common use (FAR Part 15 and 31) of what a ODC is. I now understand you were really asking about establishing CLINS to pay for a cost. Now clarified I hope the additional posts help with your original post.
  16. C Culham


    Todd- Vern’s response fits in a general sense as related to establishing evaluation strategy in a trade-off process. To your question about “Is this even a good idea” and noting that you have mentioned “task order” I would add that it being a good idea not only applies with regard to what you are procuring but also if the Indefinite Delivery Indefinite Quantity (IDIQ) allows trade-off selection process for placement of orders. Competition under IDIQ contracts is guided by what the parent IDIQ contract says not what the FAR says. Usually under the parent contract the competition/placement process, typically called “Fair Opportunity,” is established in an IDIQ contract and that must be used to be in compliance with the parent IDIQ. So if the parent says that a placement process akin to LPTA is to be used then that is the process to follow. If the parent contract is not specific or otherwise allows a trade-off like process then again Vern’s response fits. If you have not read the order placement terms and conditions of the parent IDIQ you might want to consider doing so before you craft your effort for selecting a contractor for the contemplated task order. Additionally, FAR 16.505(b) provides the basis for “Fair Opportunity” and 16.505(b)(1)(ii) addresses how the process can be crafted specifically for a particular (parent)IDIQ and is a good read as to how “fair opportunity” can be established. But again this is just reference for understanding “fair opportunity” the parent contract rules on the process for order placement. Want to know read up more on fair opportunity? Consider using the search feature of the WIFCON Forum and you will find a significant amount of discussions relating to the topic of fair opportunity.
  17. So as I follow the thread my question back to you is what does it matter if anyone has or has not? I say this noting that you are clear that you are not going to allow it as an ODC even if a contractor could show you through their accounting system that they in fact make such devices a direct cost rather than covering it in general and administrative in their accounting structure. You want the government to provide this service pure and simple. Seems like an answer to your question does not make a difference in what you want to do so I am lost as to why you are even asking it!
  18. Yes. Doing so depends on what the contract says and/or contractor pricing. Further response based on the dribbling of facts - If the FFP contract does not provide for the mobile hot spot devices and does not provide for ODCs and does explicitly provide that the government WiFi will be used yet the program office believes the devices are necessary to access other than government WiFi do the following. Either 1)Get an authorization from the program office to modify the contract to add them into the pricing; and amend the contract to allow the contractor to purchase the devices off of the government BPA but only if the BPA provides that contractors can use the BPA otherwise just let the contractor get the devices as they see fit; or 1(a)) Provide the devices as GFP and modify the contract accordingly if GFP is not indicated in it; 3) Deny reimbursement on the basis that the contractor should have known the devices were going to be needed in the FFP arrangement and sit back and wait for the request to possibly be converted to a claim. Consider the legal concept of constructive change as you work through what option you want to pursue.
  19. C Culham

    COR Conflict of Interest

    By my read there are two aspects to a matter of conflict of interest. One is prevention. The other is enforcement action (lack of a better term on my part). Prevention and as such raising the matter to the right person on the government side would help determine any appropriate preventative action. Who is that person? The CO and the ethics official either through the CO or separately. Enforcement when a conflict is alleged to have actually occurred? Possibilities include CO, Agency Head or designee for disciplinary actions, GAO, courts, EEOC, DOJ, and IG. I read the OP's question as enlisting help on the prevention aspect. When it gets to an alleged violation seeking advice from an expert in contract and administrative law is the best route. Such expert advice would be valuable in prevention efforts too but as noted prevention efforts lack a procedure to demand a specific action.
  20. C Culham

    COR Conflict of Interest

    Just a thought that always comes up with regard to ethics and noting that 5 CFR has been used as a reference. Lois's recourse may be through both the CO as well as the ethics official of the agency involved or maybe even the Office of Government Ethics. I say this noting the discussion at § 2635.106 Disciplinary and Corrective Action.
  21. Becoming a 1102. I never regretted any career decision. Not a dang thing. PS - I am not perfect. I found the 40 years of my 1102 career path to be exciting and full of opportunity only limited by my own personal initiative to make it all it could be.
  22. C Culham

    Contractural Threshold

    FAR 52.236-1?
  23. Well stated Vern and some of the very concerns I could not articulate when I continued my read of this discussion thread. I started a post about scope of parent IDIQs (the OP's concerns could strongly suggest a material change) and even one on mistake in quote (Oh, had I known that clause was in the order I would have added this much more money in my quote!) but could never really get there. This "Hit the Nail on the Head".
  24. Joel - I did not say the blog did but in my view helps the OP understand what adding a clause means. Vern has answered the question.
  25. Here is a blog that may also help....https://interact.gsa.gov/wiki/adding-provisionsclauses-rfqs