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C Culham

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Posts posted by C Culham

  1. 10 hours ago, Jamaal Valentine said:

    Generally, the Contracting Officer may at any time, by written order make changes within the general scope of a contract anytime before final payment


    26 minutes ago, Vern Edwards said:

    That's an incomplete paraphrase of the terms of the Changes clause, FAR 52.243-1, et al.

    Well here we go.  An OP provides dribbling information and then we make conclusions based on the lack there of until it is dribbled out.    Question - What if it is a Commercial Item acquisition and 52.212-4 has not been tailored, what then?


  2. Got it, thanks Vern. 

    I think I wrote and still write for money.  Published no, but still for money I think I can say.  Likewise for educational recognition challenging 48 upper division credits at Portland State University for which I received the full 48.  No font, no word limitation, etc.  but still a success on the subject of acquisition.

    Make my view right or wrong or yours?  Nope just how I see the world.

    Thanks for the brain exercise.

  3. On ‎7‎/‎8‎/‎2018 at 10:48 AM, Vern Edwards said:


    Do you think the challenge is reasonable?

    Would you accept the challenge or walk away?

    If you would accept, how well do you think you would do?

    No.  Addressing the subject I am fine with but the idea that it is a professional challenge escapes me when the requirement of 3000 words, etc. is attached to the challenge.  Evaluation "3)" is a disconnect with such a requirement in my view.  Let my ability in writing stand on its own especially if I could say it in 2000 words. I almost get the feeling that even though the position "includes no administrative or clerical tasks" throwing the 3000 words, etc. requirement in there is measuring on a clerical element.

    Accept as I need the job!

    Adequate with hopes it is recognized through interviews that I will bring other attributes to the position that make me the wanted candidate.

  4. 3 hours ago, Cewheaton said:

    Subcontractor's do not get CAPRS, so how are subcontractor past performance accepted only if they have a CPAR evaluation?

    Consider that subs might have an evaluation in the system if they performed in the past as a prime.

    3 hours ago, Cewheaton said:

    I believe this should be grounds for a pre-award protest.... any opinions on this topic or others who have experienced the same? 

    Depends as the  details would dictate.  Considerations that quickly come to mind include what the solicitation, as amended, actually says about what is needed to evaluate past performance and how the information will be evaluated, does the COR have authority to speak on behalf of the CO, FAR 15.305(a)(2) and GAO case law.

    Sounds like you need to speak to an expert or legal counsel with regard to your concerns.

  5. 12 minutes ago, Vern Edwards said:


    Might be better to start from the position of "WHY".   I continue to do what some believe to be less than acceptable research on this subject and I now wonder if 22.1103 has more to do with price analysis than application of labor law.  I say this on the basis of these random thoughts that I have yet been able to fully put together but I think they have bearing.

    CAS speaks a lot to "negotiated contracts".   TINA and the requirement for certified cost or pricing data could, might,  depending, or may apply to a TO.   Eerily the threshold of 22.1103 tracks to some extent with the threshold for cost or pricing data.  (Question - what was the threshold in 1983?)

    So back to "Why?" and keeping it simple.  If my proposed TO award is going to be subject to certified cost or pricing data then I insert 52.222-46 and if not then I decide as a CO if I want to evaluate professional compensation otherwise and so state without using 52.222-46.  Otherwise I do not mess with it other than what I might do in an effort to  "Consider price or cost under each order as one of the factors in the selection decision."   All said keeping in mind that an overruling decision on use of 52.222-46 for a TO on my part as a CO is if I had the provision in the solicitation for the parent IDIQ(s), what the pricing structure will be etc.

    Other random thoughts that probably do not really matter as this thread progresses but all the same I feel they are worth mentioning, besides they were in a draft I was working on until the last few posts appeared so what the heck.

    14 hours ago, Vern Edwards said:

    Why not simply state that when competing for orders contractors may not reduce the wages paid to professional, administrative, and clerical employees in order to reduce prices? 


    I  would suggest that the wording be "reduce the salary/fee paid".  Reasoning.  FLSA provides that the positions mentioned are exempt for FLSA.  FLSA and SCA work together and SCA provides that the positions listed as being exempted from FLSA as also exempt for SCA.  Wording used for these positions discusses and emphasizes  "salary or fee" and not wages in almost all cases.

    10 hours ago, Vern Edwards said:

    FAR Subpart 22.11 does not prescribe any "method." FAR 52.222-46 prescribes a submission of information


    Not a method as well?  The provision states that the government will -  "evaluate the plan to assure that it reflects a sound management approach and understanding of the contract requirements. This evaluation will include an assessment of the offeror’s ability to provide uninterrupted high-quality work. The professional compensation proposed will be considered in terms of its impact upon recruiting and retention, its realism, and its consistency with a total plan for compensation."  GAO decisions seem to conclude that this is a method that must be used when 52.222-46 is in the solicitation.


    37 minutes ago, Vern Edwards said:

    FSS contracts, FAR Subpart 8.4

    Never!  Haven't we already ruled out commercial item contracts?  If yes by my read all FSS contracts are commercial item contracts so forget evaluating professional compensation on these bad boys all together!  Keep it simple, right?

  6. Well since we have digressed from intent of the beginners section just an aside that is further digression. 

    What I found interesting in tracking the provision from 1983 to current is that the FAR doesn't  address clerical and administrative personnel who could be in the same situation with regard to FLSA and SCA non-application.  Makes me think the lobbyists were at their best when FAR was contrived.

  7. Well I am still stuck on the original question as posed.   I believe it was whether the provision 52.222-46 should be included in a TO solicitation under an IDIQ or something close to this question?  I did a query of the GAO protest website using a couple of different search criteria and several decisions came up.

    In my quick read of a few of the decisions that came up I did not find one that was definitive as to whether the provision applies to TO RFP’s but it is clear that agencies have included it in TO RFP’s and information received in response to the TO RFP has been used in the evaluation of responses to TO RFP’s.  My conclusion is that as GAO has opined about how the provision is applied to evaluation of a TO RFP response  and at the same time never questioned it being in the TO RFP then yes an agency may determine when the provision is applicable and include it in the TO RFP.  

    Here is a couple of GAO decisions that lead to my conclusion.



    I would note that in the several hits (decisions) that came up they addressed other issues discussed in this thread as well as they relate to the provision such as inclusion in commercial item solicitations, etc.

    I did not research the OP’s   question,  now posed after edits, but going out on a limb I would say that absent something different from GAO it appears GAO considers RFP’s for TO that lead to an awarded contract are “negotiated contracts” at least for application of provision of 52.222-46.  I say this noting as well that GAO has adopted the rule, at least by my read over the years, that if an agency applies FAR Part 15 processes to selection of a contractor for award then FAR part 15 is used as the determining principles as to whether an agency followed due process and therefore the definition of FAR Part 15 applies.

  8. 16 hours ago, FrankJon said:

    So, if upon reading all of that, you think it applies, then it applies. But there's also a common sense aspect to this. Doing the evaluation required by this provision at the IDIQ level in a multiple award setting doesn't achieve much because the risks it is supposed to mitigate will return once the task orders are competed. That is, contractors may feel incentivized to under-compensate professional employees in order to win work. Unless this provision or similar price or cost realism language is in the TORFP, then they will have the flexibility to do just that. 

    It depends as well, in my read, on whether the parent IDIQ(s) set specific rates for categories of workers or other side boards with regard to the exact professional employees that are contemplated to perform task order work.   I note this based on the sentence in the clause that states " As a part of their proposals, offerors will submit a total compensation plan setting forth salaries and fringe benefits proposed for the professional employees who will work under the contract."  wherein if the plan applies to the whole of the work contemplated under the parent IDIQ(s) it would seem re-evaluation would not be necessary at the task order level. 

  9. 20 hours ago, lotus said:

    Seems outrageous, remarkably unconscionable, but perhaps true.  The Govt is the big bully on the block.

    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.

  10. 23 hours ago, REA'n Maker said:

    Do you think it's a coincidence that all the successes you cite appear to be in the construction sector?

    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.

  11. 31 minutes ago, joel hoffman said:

    it might be doable

    All is doable and I completely understand the concerns about the "doing" passing strict scrutiny.  


    32 minutes ago, joel hoffman said:

    What puzzles me here

    Agree but only the OP can provide the facts to sort it out.


    22 minutes ago, joel hoffman said:

    confirm that DOL would accept it.

    In my experience I have never had success with DOL confirming something outside their official processes and this is specifically related to conformance.


    24 minutes ago, joel hoffman said:

    The government should understand

    The very point on which additional thoughts are based.

  12. 2 minutes ago, Vern Edwards said:

    I sense a rising tension on your part

    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.

  13. 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.

  14. Sorry I was disconnected for most of the day yesterday.

    19 hours ago, Vern Edwards said:

    You have described a different set of facts

    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."


    20 hours ago, Vern Edwards said:

    Conformance and referral to DoL begins after contract award and is thus governed by the clause.

    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.

    20 hours ago, Vern Edwards said:

    That might work, it's just not what lotus presented us with.

    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.

    20 hours ago, Vern Edwards said:

    If the acquisition were competitive, then what you propose might work if you described your procedure in the solicitation and did the same with all offerors in the competitive range

    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.   

  15. 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.

  16. 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.


  17. 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.

  18. 27 minutes ago, jayandstacey said:

    Wasn't that essentially the root issue in the Kingdomware decision?

    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.