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C Culham

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Everything posted by C Culham

  1. As noted an OGC response will be interesting to see. I picked up on a couple of important tidbits in the OP's posts so far that makes me wonder. OGC? Considering FAR subpart 3.104 unless OGC is the agency's ethics official why isn't the agency ethics official part and parcel to the referral as well? By my read of most agency regulations the ethics official is in the position to make determinations regarding employment and financial interests of Federal employees. By my read the referral/contact is prior to the exercise of the option. If this fact is correct it seems such contact could be construed to be prior to and during the conduct of an acquisition again drawing the matter into FAR subpart 3.104. In this case I understand it is an employee (program manager) seeking employment for a another who was a previous employee (presumed specialist) but the manager might just be construed as being an agent for the specialist.
  2. Signing actions above warrant authority?

    The above quotes should be a hint to the OP. Before accepting merely what the FAR says its agency supplements, and individual delegations must be considered as well. The FAR does allow the delegation as supported in this thread but experience will suggest that agencies could very well limit or otherwise prohibit the ability of the CO to delegate below their level. Just like the DFARS matter to DoD agency supplements matter to civilian agencies.
  3. Terminology

    Seeker - We can also leave it that your read is different than mine. But please reread that my confusion was the evolution of the thread that moved from using a RFQ for an in fact acquisition to a maybe acquisition. Even comment confuses because an RFQ is not an acquisition it is a method of market research. The RFI process is explicit via 52.215-3 regarding this.
  4. Terminology

    I honestly am confused by the evolution of the discussion of this thread as it seems to be more about invention than innovation as the suggested use of an RFQ as a market research process does not seem to add value to the processes of the FAR in a fine look. Rather it would add confusion. I agree that an RFQ could be used for market research for an anticipated acquisition. However doing so is a departure from the usual (convention) processes of the FAR and even gets to whether using an RFQ meets the stated conventions of the FAR for words and terms (FAR 1.108). Using RFQ as a term just as if you would use RFI as a term to identify an issuance of a document that may or may not lead to an in fact acquisition process of issuance of an RFP is semantics and lacks good clarity which requires the user to make stuff up. Why do that? By example the process of an RFI has some very specific commands in the FAR when used as a marketing tool (FAR 15.207 7 FAR 52.215-3). There are none for doing the same with an RFQ. Makes me wonder – 1)If one were to use an RFQ are they to handle the RFQ in the same manner as they would a RFI? 2) Would one need a deviation to adjust the 52.215-3 provision or is it a provision that allows adjustment in wording? Innovation is not do as you please, innovation is to take a process and improve upon it and the questions above suggest RFQ as a marketing tool is not an improvement it is simply a replacement that could in fact make more work rather than less. It also has been suggested via a reference to a noted publication with regard to contract formation that a RFQ could be used in a follow on sole source procurement. The same suggestion carries this statement “or by less formal communication.” The approach of less formal communication is what is usually done and makes one wonder what if there is any value adding the nomenclature of “ RFQ” to a document to get easily obtained information for a sole source procurement adds to the process? If so what value? So yes innovate but when you do think about whether the innovation adds value and even simplicity to the current process of Federal acquisition or is it simply a new spin (or even word) on doing the same old thing!
  5. Terminology

    Matthew - Understood!
  6. Terminology

    Matthew - Then your suggestion for use of the RFQ in this thread, by clarification, is as a market research tool rather than an in fact purchase tool, correct? I agree that for instance FAR part 10 (10.002) does not specifically exclude an RFQ from being a market research tool yet it seems counter to a full view of the guiding principles of the FAR which suggests strongly that an RFQ is a vehicle that starts a specific procurement process. Such things as applicable provisions and clauses, unique numbering system, filing requirements, complete processes of FAR part 12 and 13 that suggest RFQ's are evaluated for award and specified forms are these strong suggestions. Additionally while I personally could not find a GAO decision on point my read of decisions I could locate suggest strongly that RFQ's are not merely a market research process but an in fact procurement process. As is the case with discussions in WIFCON and as already brought up in this thread is what is the industry practice or view . A case has been made that in the commercial marketplace (where FAR is not applicable) that the RFQ could have a different meaning. That seems counter to what is actually true where an internet search of "Request for Quotation" in various formats inclusive of combining with the Uniform Commercial Code provides hits that suggest strongly that RFQ's are used in the commercial sector for matter of fact procurements based soley on pricing and not simply market research. Additionally seeking a definition of "Request for Quotation" through an internet search produces multiple hits with the following from the Business Dictionary being representative - "Document used in soliciting price and delivery quotations that meet minimum quality specifications for a specific quantity of specific goods and/or services. RFQ are usually not advertised publicly, and are used commonly for (1) standard, off-the-shelf items, (2) items built to known specifications, (3) items required in small quantities, or (4) items whose purchase price falls below sealed-bidding threshold. Suppliers respond to a RFQ with firm quotations, and generally the lowest-priced quotation is awarded the contract. See also invitation to bid (ITB), request for tenders, and request for proposals." Conclusion is that while the idea of use of an RFQ in the context of the Federal Acquisition Regulations as both a market research tool and an in fact procurement process is a possibility I say doing so is confusing at best considering both the guiding principles of the FAR and what is true in the commercial market place. Overall the idea on whole raises a further question for me that I will not spend time on and that question is - What came first the chicken or the egg from the standpoint has commercial practice been shaped by the FAR or does the FAR in some of the wisdom it has been promulgated from actually reflect what a RFQ has been used for in the commercial market place for tens of years, a documented process for an in fact procurement? I will leave it to others as to whether they will use a document titled "Request for Quotation" (RFQ) to gather only market research data but for me I do not suggest it.
  7. Terminology

    What about FAR 13.003 (c) and (g)?
  8. Supply vs Service

    Retreadfed - It is a category under that you can contract for with a "service contract". Like supplies or construction, are not defined contracts but categories of what you can contract for. More fun! So by my read the FAR refers to "service contract", "supply contract", and "construction contract" but only specifically defines "service contract". Don said this and it makes my head spin - It seems a departure from what Todd Davis actually posted which was that you simply determine if a labor law applies which FAR part 22 says at 22.00. Not sure but this might be better when talking specifically about the FAR - We can categorize services, supplies and construction for particular purposes but for services it is a "service contract" to which FAR part 22 applies. Sounds like a repeat of Vern I guess when you get down to it (also consider his blog here - The OP asked this - "Are we correct in our interpretation? Is this in fact a service since we are paying for labor associated with a repair for equipment? Further, anyone have other policy/guidance that provides a clear definition of a supply vs. a service? " Answers - Yes, see FAR part 37. Yes, again see FAR part 37. Yes again see FAR part 37 for the definition of "service contract" and FAR part 2 for a definition of supplies. The FAR needs definitions of "supply contract" and "construction contract" and let FAR 22 guidance remain as to what labor laws you put in any "contract" as the labor regulations implemented by FAR part 22 such as 29 CFR 4.111(a) seem clear - ".... the nomenclature, type, or particular form of contract used by procurement agencies is not determinative of coverage."
  9. Supply vs Service

    Even fun in this case. FAR part 2 does not define a service contract. FAR Part 22 defines a “Service contract” as “ any Government contract, or subcontract thereunder, the principal purpose of which is to furnish services in the United States through the use of service employees, except as exempted 41 U.S.C. chapter 67; Service Contract Labor Standards; see 22.1003-3 and 22.1003-4. See 22.1003-5 and 29 CFR 4.130 for a partial list of services covered by the Service Contract Labor Standards statute.” FAR part 37 defines “Service contract” as “a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply. “ FAR Part 37.000 states - “This part includes, but is not limited to, contracts for services to which 41 U.S.C. chapter 67, Service Contract Labor Standards, applies (see subpart 22.10).” Conclusion the definition of FAR Part 22 is inclusive in the definition in FAR part 37. So does this mean that there is only one definition of “Service Contract” in the FAR?
  10. Terminology

    ICE-CO - This thread may be of interest with regard to your question.
  11. Thanks.....you are probably back to Vern's comments
  12. Just a thought....... FAR 16.207 - FFP Level of Effort are for under $150K contracts usually, of course can be higher if your agency policy allows. Question was it handled by simplified acquisition procedures? If the answer is yes then a J&A is not needed as you would be in the world of single source and not sole source. See FAR 13.106(1)(b).
  13. Possible help....... https://www.loc.gov/rr/frd/Military_Law/pdf/FLD_2013_Ch6.pdf FAR Part 17.5 and you may already be there if you have an agreement between the two agencies and as noted a simple delegation of the contract might work. Do not forget about GFP if in the contract as there may be some hoops with regard to it. Some agencies have specific authority with regard to delegations that might assist in the transfer. Here is one example - https://www.fs.fed.us/servicefirst/docs/authority-expansion-mou-iaa-10nov15.pdf Hope these help.
  14. MATOC Small Business Set-Asides

    Seeker and here - Are you saying that it is inconsistent with FAR and if you were an agency CO you would not reach out to the small business specialist within your agency and/or SBA to discuss the idea?
  15. MATOC Small Business Set-Asides

    I believe that the view expressed in this thread to implement the innovative idea of the OP has missed a very important step that must be taken before implementation. It was expressed in this thread that a CO should take the lead in pursing innovation (FAR 1.102-4(e)). There is no disagreement but within the same guiding principles it is expressed that an acquisition is to be the product of a “team”. With regard to the proposed approach the primary debate has been the appropriate application of the Small Business Act to the idea. Many have their opinions with regard to such application, inclusive of myself. In the context of the FAR the discussion has been made in a vacuum that is absent the obligation to the guiding principle that an acquisition should be made as a team approach that includes members of the team that are empowered to make decisions within the area of their responsibility (FAR 1.102(a)) and that team participants are to include all from the procurement communities (FAR 1.102(a)). FAR 19.201 provides that SBA is to assist agencies in accomplishing the intent of the Small Business Act and outlines the specific procedures that an agency is required to establish with regard to implementation of the act inclusive of recommendations regarding set aside programs. In the case of the proposed implementation of the innovative OP idea the suggested course has not included the clear demands of the guiding principles and FAR Part 19 that the appropriate agency officer or employee (team member) be consulted as to implementing the OP approach. The Small Business Act as implemented by FAR part 19 is clear that Small Business Administration in concert with the required agency Office of Small and Disadvantaged Business Utilization, or the extension thereof, within the agency’s organization must be part and parcel to the implementation of the OP’s idea as it is also clear the innovation proposed needs clear interpretation of the Small Business Act and its implementing regulations that are inclusive of not only FAR part 19 but that of 13 CFR Chapter 1. So yes go for it, but go for it with complete deference to guiding principles and requirements of the FAR. Doing so will make it a success!
  16. MATOC Small Business Set-Asides

    FAR 19.000 “This part implements the acquisition-related sections of the Small Business Act (15 U.S.C. 631, et seq.),” therefore one would think the associated regulations of 13 CFR 125 which were also codified on the basis of the Small Business Act would have some bearing on interpretation of the guidance offered in the FAR. I am not quite clear why 13 CFR 125 is dismissed so easily? This being said could the more appropriate approach be that you are doing the procurement under FAR 6.203 as a SB set aside and that you are “reserving” awards for the categories (subsets of small businesses) that the OP has identified? I question that you would do a competition as suggested by the OP and “set aside” for an 8(a). I reason in a full read of FAR subpart 19.805, with FAR 6.203, that a competitive reach to 8(a)s would be as a reservation as an award or awards for 8(a). A “set aside” is in conflict with the applicable thresholds that allow for competitive 8(a). To “reserve” might be a different matter, reference 19.502-4? Hope these thoughts help repair some additional chinks in the armor to allow the innovation to occur.
  17. MATOC Small Business Set-Asides

    I suspect further discussion should be deferred to another thread noting the WIFCON basic rule "to be easy" on Beginner original posts. I see the tip of the iceberg as to where this thread may get confusing.. I say this noting that while I get what ji and Don are trying to say I wonder how their positions balance with 13 CFR 125.2(e)(3) & (4)? Conclusion - my suggestion to the OP is to discuss their idea with the small business contact within his or her agency.
  18. Contract modification to stay under $150,000

    A couple of suggested reads to help. DLA's process for seeking quotes is fairly specific and has identified regulations and policy. By my read in certain cases DLA is specific that an award will not exceed $150,000 for a RFQ and provides the process to met this requirement.. Internet search of the DLA DIBBS process will provide detail. Likewise a read of the DLAD (DLA's FAR supplement) will provide additional information.
  19. Hopefully not a run away thread and most likely no impact but the questions that occurred to me with the first post by the OP were - Is the 52-217-9 clause already in the contract? Not clear that it is. Is the contract for a commercial or non-commercial item? Again not clear. The above have no specific impact on the best option proposed in the thread but do have impact on what I will call the side discussions that have occurred.
  20. A possible alternative that is close to that suggested. Following the ideal of FAR 52.222-41 Service Contract Labor Standards include in the 52.219-14 clause a "Records" paragraph adjusted accordingly to indicate required records to support the LOS. This paragraph would stipulate that only SBA is allowed access to the records. As such at completion of all work under a contract (an order in some cases) if a CO suspected non-adherence to the LOS they would simply refer to SBA for investigation, penalty etc. prior to final closeout of the contract. I am suggesting this alternative as there appears to be a parallel with regard to who should have the power with regard investigation and enforcement of violations. In labor laws the DOL has the investigative and penalty powers and in the latter it appears that by statute and regulation that SBA has or should have the investigative and penalty powers. An alternative to this alternative if you will could be like that stated in 52.222-8 where such LOS records are accessible by both the CO and SBA. In suggesting the "Records" paragraph be in 52.219-14 I believe that having the requirement for "Records" stated within the 52.219-14 clause helps reinforce its necessity without having to refer to another part of the contract. If only the SBA is listed as that party that has access to the records I would suggest that adequate information is otherwise available during performance to suggest whether compliance will occur by completion giving the CO the foresight to possibly "intervene to prevent a breach" at contract end. Of course having both the CO and SBA listed would be of great benefit. That benefit being the ability to help avoid a breach in the end much like the ability to do in process inspection that is the norm for non-commercial contracts in the Federal sector. One issue would be a performance evaluation of a contractor that was suspected of non-adherence and investigation concludes that non-adherence did in fact happen. It would seem that this should be captured in a performance evaluation. I am unsure if CPARS allows for revised/amended evaluation and if it does if there is a limitation on when such a amended evaluation can be done. Here I am reminded as well that interim performance evaluations can be done and might possibly be the tool that helps the CO intervene during contract performance.
  21. Joel - Thank you.....and I never will.
  22. I dislike broad brushes and digression. If no one cares why is there even discussion in WIFCON on any contractual matter? God forbid why is there an organizations like NCMA or even prestigious publications like Nash & Cibinic? this discussion has gone off track and I am going to take the spur line..
  23. Vern –I feel you have distracted the conversation on a specific point without giving consideration to the whole of what “contract administration” is with regard to assurance of compliance with contract terms and conditions and the remedies given to both parties in a contract to help assure the compliance. At first blush your comments suggest that clauses like the limitation on subcontracting clause and possibly the 52.236-7 Permits and Responsibilities clause are worthless as either clause lacks "contractual power of inquiry or contractual authority to compel a contractor to produce and disclose specific information as to compliance with a Federal law and regulation during performance of work under a contract. The contract provides the power of inquiry, or in other words either party can ask the other party to a contract if the party is complying. I would agree that if asked by one party if they are complying and for data to support such compliance the other party is not compelled to answer. In fact I would say that as a whole the contract does not “compel” one to do anything contained in the contract. You sure hope they do but if they do not then there is a course of action with regard to a breach of promises. As I have already provided in my comments there is a course of action if the CO does not believe the limitations on subcontracting are being adhered to during performance and in the end if the contractor does want to tell me to get lost I have the power to compel them to tell me why I should have of or should not of gotten lost. In Federal contracting I just terminate them for cause or default and they produce the information or not, their choice, but if they do not I am guessing that they sure won’t like the outcome. My conclusion is that in the end as a party to a contract I can compel the information. PS - Posted after you an Joel continued to discuss. Relevant to my response here, who knows as I spent the time to produce the above response so I am just posting, what the heck.
  24. Vern – The nexus is this in that 15 USC 645 (see below) is the connection (basis) for 13 CFR 125.6(h). As referenced in 15 USC 645, 15 USC 657s is the subcontracting limitation provisions of the statute. While the penalty is not stated specifically in the FAR 52.219-14 clause as things go with the regulations of SBA all conclusions. processes and actions of SBA programs are not stated in the FAR. FAR 19.00 is clear that it implements the “applicable sections of the Small Business Act” and the LOE as noted in this discussion is an “acquisition related” part of the Act. Supported by the fact that within WIFCON there are references by many that direct an OP to 13 CFR for clarifying information with regard to action and process on small business matters. Noting this along with the fact that a violation of the LOE has specific penalty as prescribe by statute and regulation YES I believe the noted connection does give the Government (CO, SBA, GAO, OIG, Justice and ????) the right to inquire as to a contractors compliance with the LOE. For a contractor to simply tell the Government to “get lost” when inquiry is made with regard to LOE for a specific contract would be a wrong minded action by the contractor in my view. 15 USC 645 (g) Subcontracting limitations (1) In general Whoever violates a requirement established under section 657s of this title shall be subject to the penalties prescribed in subsection (d), except that, for an entity that exceeded a limitation on subcontracting under such section, the fine described in subsection (d)(2)(A) shall be treated as the greater of— (A) $500,000; or (B) the dollar amount expended, in excess of permitted levels, by the entity on subcontractors. (2) Monitoring Not later than 1 year after January 2, 2013, the Administrator shall take such actions as are necessary to ensure that an existing Federal subcontracting reporting system is modified to notify the Administrator, the appropriate Director of the Office of Small and Disadvantaged Business Utilization, and the appropriate contracting officer if a requirement established under section 657s of this title is violated.
  25. Does the fact that the LOS clause has a direct nexus to 15 USC 645 have any bearing on the rights of the Government to request information specifically to determine if the contractor shall be penalized and/or debarred?
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