C Culham

Your brief description of your situation makes me think of Procurement Technical Assistance Centers (PTAC). One of the primary purposes of PTAC's is to provide FREE assistance to small business's that are in the position you are. A PTAC, if you find it to be a good fit for you, could be a valuable resource through out your entire prime experience. Here is a link to find and explore abilities of the PTAC near you. Checking a PTAC out might just be a good thing for you - https://www.aptac-us.org/

No doubt a matter for the GAO/Court to decide on whether such an approach is statutorily allowed. Regulation wise, I say yes. My position for putting the reservation in the solicitation (and applying it) would be that the ground rules of the procurement were laid out to all. Applying the reservation would then be a judgement of the agency and the judgement (as substantiated by the agency) would be not be subject to protest review. How would I do it? I would do an individual deviation to 52.215-1 as I see nothing in statute that does not allow such a deviation.

Generally speaking this really makes me wonder. Unless the prime contract with the federal agency, or your subcontract in some way allows or otherwise provides a direct contractual relationship between the subcontractor and the government there is no privity of contract between your sub and the government. While I get that sub may be concerned about divulging their indirect rate to you as the prime bluntly I say too bad. The sub had the opportunity to address their concern with you when they received their subcontract. To now wish for some work around to where they deal directly with the government makes no sense to me. Others may chime in and provide where it would make sense but I really think it has to be a contractual stipulation otherwise I would simply tell the sub - Nope not happening.

I have the feeling that the CO may be confused about what constitutes scope of the TO. I agree with all thoughts passed along but I thought the below nugget from a previous thread might assist in developing your discussion points for a conversation with the CO. The quote is from a post by Vern Edwards . Paraphrased the mix of hours to get the job done does not really matter its getting the job done within the ceiling price. The rest of thread provides context but my intent is to share the post by Vern. "A T&M or L-H contract does not require the contractor to deliver a level of effort, i.e., a specified number of hours or some other unit of labor. It requires a contractor to perform a job. The ceiling price is not a level of effort that the contractor must deliver, but a limit on the government's obligation, which is necessary in order to avoid a violation of the Anti-deficiency Act. An increase in the ceiling price is ordinarily akin to funding an overrun on a cost-reimbursement contract. However, if the parties are increasing the ceiling price to cover the addition of work that is beyond scope, then they must comply with certain requirements, such as a sole-source justification and a D&F. The FAR case requires COs to perform an analysis when they increase the ceiling price in order to determine if the increase is the result of a change in scope. The FAR case makes perfect sense." The thread where this quote is found is here....

Fine with me Vern, take your ball and go home. I am not mad. I am not even surprised that you continue to stalk my posts to openly attempt to discredit me, a penchant you have firmly stated and practice continually in Forum. It just goes with the territory as they say. Rather I am just providing a view that I firmly believe in, know is true, practicable and sensible. There is absolutely no imperative requirement within the FAR, and I dare say the OP’s agency’s policy and the OP’s DO that is for solely hardware ordered pursuant to a firm fixed price CLIN that requires the assignment of COR to the DO. There is not even a FAR requirement to appoint a COR on every single DO issued under a non-commercial service IDIQ. The choice as provided by the FAR is that of the CO’s unless agency policy and procedure require otherwise. No sir not mad, I have just reasoned that when it comes to Carl you have inattentional blindness.

The answer Yes is not based on fact but based on conjecture. Yes COs are to ensure QA and that can be the CO or others as the CO sees fit and that person does not have to be a designated representative of the CO. I guess Frank Kendall is ignorant (my emphasis added) - "Contracting officers will designate a COR for all service contracts, including construction, unless the contracting officer retains and executes contract oversight responsibilities when the conditions of subpart 201.602-2 of the DFARS Procedures, Guidance, and Information (Reference (g)) exist. CORs may be required for any other contract when the need for a COR is determined by the contracting officer. The contracting officer always has the right to designate a COR when it is in the best interest of the U.S. Government." As to Criminy I did pay attention to the detail that you did not post a response to OP for more than 48 hours and only after you saw my name response appear ( I was the first responder). Yes sir it was me and you are correct I did not know any of the Why as whether a COR would be needed in the eyes of the CO therefore no Yes or No. Apparently you did know Why based on the specifics of the instant procurement and if you did not I really do question how a a discretionary decision by a CO demands a Yes all the time! Factually not correct and in reality not demanded or practiced. The nonsense of how this thread has progressed and a response of Yes is best supported by this sentence that says what?

To be clear I provided neither a Yes or No in my response. In the context of the OP’s questions the premise of being imperative that “Yes” a COR is required would have been an ill-advised response on my part and is not in keeping with the rule of 1.602-2(d). Rather a simplistic response of either “Yes” or “No” without additional feedback from the OP would have been the bureaucratic stance. Rather I took the approach to provide reference to the OP to help in leading him/her to make a determination on their own based on realistic and efficient conclusions. Why not yes or no? There are lots of reasons more specific to the OP’s instant procurement than a historical perspective of why there are COR’s. Not an exhaustive list but important are what is “funded by a hardware 1095”, is the hardware manufactured specifically under the contract or are the hardware CLINS commercial off the shelf (feasible even if the entirety of the IDIQ is considered non-commercial services), does the contract have inspectors or others that fulfill quality assurance functions beyond that of the CO and COR(s) and more? One could even pick on the mere wording of the OP’s questions. DO’s do not require a COR. Agency policy and procedure might but a read of various agency policy on COR’s beyond that quoted in the thread do not make assignment explicit. Scope, complexity of the contract and the discretion and ability of the CO (is the CO in the DITAP program, retain FAC-C-DS certification) are the considerations and decision points as to when a COR is needed especially in the context of a FFP supply for hardware. Yes - might be the appropriate answer, No might be the answer as well and I would even offer that as stated by another “maybe” could be appropriate when all pertinent facts are known as direction of the FAR allied with the varied agency policy is clear that appointment of a COR for a FFP supply contract or order is at the discretion of the CO. I just hope that OP has reached a realistic and efficient conclusion on the need for a COR based more on the facts of the instant contract, the stated procedures of the agency, the discretion of the CO and less on the tedious details that resulted the FAR principle on CORs.

I just have to think that the Office of Federal Procurement Policy (OFPP) Policy Letter 05–01, Developing and Managing the Acquisition Workforce has been lost in the plethora of additional stuff found here https://www.whitehouse.gov/omb/management/office-federal-procurement-policy/ OFPP is worthless unless as an entity it redeems its responsibility with regard to the acquisition workforce.

The FAR principle is stated in FAR 1.602-2 which states (emphasis added) - "Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall- (a) Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation; (b) Ensure that contractors receive impartial, fair, and equitable treatment; (c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate; and (d) Designate and authorize, in writing and in accordance with agency procedures, a contracting officer’s representative (COR) on all contracts and orders other than those that are firm-fixed price, and for firm-fixed-price contracts and orders as appropriate, unless the contracting officer retains and executes the COR duties. See 7.104(e). " As provided by this principle your specific agency policy and procedures might give you further guidance. If not it would be the determination of the CO as to whether a COR is "appropriate" for the FFP Delivery Order.

New to WIFCON. Remember Forum has a search capability and many questions are - What comes around goes around!

Verification would include also checking here (below) in this modern world. While the Matrix might not always be accurate referencing the link to the Specialist might be another way of extending the training you are providing. https://www.acquisition.gov/far-smart-matrix

A couple of examples of where the idea is in practice but not for IT. FAI's Contingency Contracting Corps and the National Interagency Fire Center. Not saying the examples suggest it can work even with the examples cooperation between the agencies is in constant churn of refinement based on changing laws, regulations, policies and ideals of leadership. Really not much different than that of what an individual agency goes through the denominator just gets a lot bigger. Yet the examples do represent success stories.

From a very negative view point they have and will continue to do so. That list will be short - hey we have not met our small business goals so make some of these foreign procurements set-aside. Absurd thought? Not from my experience where I saw demands to do such with non-foreign procurements.

In the reality of Federal Government contracting discretion is simply a gate propped open that is rarely swung for the purposes its swing is intended. I would suggest that the long standing echo found in Forum regarding the knowledge, skills and abilities of individual CO's has a lot less to do with "careful" and "wrong" and more to do with their very myopic view of the their view of their authority pursuant to the FAR.

https://pra.digital.gov/about/ Might have just been a statute to make sure there was consistency in how and what the government collects You might be right.... This could be all wrong but…. The statute was written OIRA is formed Agency needs info because Congress passes some new legislation OIRA agrees to the info need Agency awards a contract to help gather and review the info - https://sam.gov/opp/d3c2598043864c249ad2d8c3239f27ec/view Contractor gets the info and gives to the agency The agency spends lots of time wringing their hands over it Agency proposes changes to regulations Agency awards contract to assist in review of responses to proposed new regulation https://www.devex.com/jobs/oti-operations-assistant-specialist-washington-dc-gs-9-10-983863 Agency gets information and contractor helps decipher it Agency issues final rule for "new" regulations and then it starts all over again at Agency needs info after Congress makes some new legislation.

I will not disagree to the point of a debate but I believe this statement to not be a representation of reality at least on the civilian side and I am willing to bet not on the DoD side to some extent. By experience both real and observed COR's are not selected on their technical expertise except in the construction and parts manufacturing fields. Otherwise they are head hunted because they have certification and appointed as COR's outside of their program and specialty area. I believe a read of this thread helps support this reality. It seems dis-jointed to advocate that a COR have specialized technical knowledge of the item being procured yet the CO who actually procures it does not. Many agencies including the DoD have bridged the gap of having a COR that is cognizant of administrative matters versus that of the specialized technical knowledge by having individuals such as technical points of contact, quality assurance support and even the throw-back of sorts to Contracting Officers Technical Representative (COTR) where years back agencies would assign both a COTR and COR. FAR 2.101 - Contracting officer’s representative (COR) means an individual, including a contracting officer’s technical representative (COTR), designated and authorized in writing by the contracting officer to perform specific technical or administrative functions. (There is no "and").

I understand but my comments were made in the light of establishing a position classification series within the appropriate OPM series that was specifically for COR's. In my view the series fits. Lots of examples of similar within the OPM Series system - 0600 - Medical, Hospital, Dental and Public Health Group - Medical Officers 0602, Physicians Assistant 0603. Series 1100 Business and Industry Group - 1102 Contract Specialist, 1106 Procurement Assistant, why not 11XX Contracting Officers Representative especially in this new world where the COR is expected and this thread opened to do a lot of heavy lifting? think of a new paradigm. Would it make things easier who the heck knows but worth a shot.

Flawed thinking. HCA's, Head of Agency and others could appoint COR's, correct? COR's have positive position requirements do they not? I have always wondered why not something like this..... 1102 - Contracting Officers Representatives All applicants must meet the following basic requirements for all grade levels: Graduation from an associate or full degree program that is accredited by an accrediting body or organization recognized by the U.S. Department of Education at the time the degree was obtained. Successful completion and certification that meets either all DoD COR training and experience requirements or Federal Acquisition Certification-COR training and certification requirements.

Interesting. Having waded in the waters COR a long time back I am rusty. So the recollection comes slowly. Another interesting read is to do an internet search on "OPM Classification Appeals + Contracting Officer Representative" Will it settle anything? NO! However, doing so might give further insight.

I remembered it, I found it....not a new problem. https://www.mspb.gov/studies/studies/Contracting_Officer_Representatives_Managing_the_Governments_Technical_Experts_to_Achieve_Positive_Contract_Outcomes_224103.pdf

Without details I find this part of the discussion to be interesting and based on a view that is absent a lot of facts from the OP. I just wanted to note in the light of the repeated position of GAO that the determination of competitive range is a primarily a matter of the agency's administrative discretion which is not usually questioned unless there is a clear showing of arbitrary abuse of discretion. I hope the OP's agency acquisition team is referring to case law to develop their position on arriving at the competitive range, holding of discussions, and final award determination including the consideration of adjustment to the "ceiling".

I suspect the absence of responses to your question is due to the fact that while your question seems direct and simple it actually presents a very large onion of facts that would need to be peeled back to formulate an appropriate response. Like many questions related to contracting the general statement of "it depends" applies.

I would suggest a prime not just rely on self certification. Why? In SAM "exclusion" listing is separate from "registration". I experimented with SAM and believe my comment to be true. Try it yourself. Search SAM on "RDIF Company". It appears they are on the exclusion list and not registered.

If after the discussion in this thread regarding competition and unacceptable proposals you conclude that you will only be dealing with the one contractor that offered CLIN pricing that exceeds the ceiling here are some thoughts. So what is the amount to be obligated? Should it not be the minimum guarantee not the ceiling? If so cannot the the ceiling be adjusted based on negotiation? Here is a GAO Redbook quote that may help.... "...unlike a contract covered by FASA, an IDIQ contract does not obligate the government beyond its initial year. Rather, it obligates the government only to order a minimum amount of supplies or services. The cost of that minimum amount is recorded as an obligation against the appropriation current when the contract is entered into." The quote is based on "Analysis" found in this decision https://www.gao.gov/products/b-302358

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