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Desparado

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Posts posted by Desparado

  1. On 10/20/2016 at 9:00 AM, Vern Edwards said:

    Desparado:

    Keep in mind that when it comes to GSA MAS contracts, FAR 8.405-4 permits agencies to seek price reductions before placing an order and requires them to do so before placing an order that exceeds the simplified acquisition threshold. In essence, the rates in those contracts are for contract award purposes only and are not binding on the government. GSA MAS "contracts" are not like agency-awarded sole source, single-award IDIQ contracts.

    The OP for this thread did not ask about GSA MAS contracts. He or she seemed to suggest that, unlike the case under GSA MAS contracts, rates in the prospective IDIQ contract would be contractually binding. The OP seemed clear that the rates would be binding on the contractor, he or she gave no indication that the rates would not be binding on the Government, and he or she made no mention of seeking rate reductions prior to placing an order. There is no comparison with GSA MAS contract pricing.

    There is one place where there is some comparison. One of the main issues being raised here is the thought that contractors cannot forward-price for 5 years on a fully loaded labor hour basis.  That is exactly what they must do on GSA MAS service contracts.  Yes, they can go lower, but they can not go higher than the previously negotiated rates, which are done in 5-year increments. 

  2. I would reach out the GSA contracting officer for that contractor's MAS contract. When I was at GSA we received complaints like this all the time, as well as TAA complaints.  Since each CO deals with over 100 contractors, and each contractor can have thousands of items on their contract it is impossible for the GSA CO to monitor this.  However, if you raise it to their attention they should be able to investigate.

  3. LM:  Without the details I am just going to give you my knee jerk reaction to your initial post. I would be vary wary from a technical acceptability standpoint.  If these positions are listed as "key positions" I would imagine the government's intent is that they focus on this project.  That would be difficult if not impossible to do if they are already full-time on another project.  Now if it were a program manager that may be a different story since they may be able to manage both projects, but you'd need to do some extensive elaboration in your proposal to convince me of that.  Then, as Navy pointed out, questions could easily come up that perhaps they shouldn't be charging time to the first project if it doesn't require 100% of their attention.  I think you may open yourself up to issues you don't want to deal with if you propose in this manner for the second project.

  4. Having been previously at the VA, I can tell you this is pretty standard for a commercial purchase of a supply.  Sad, but true.  I would have trimmed it down a bit by including 52.212-1 and 52.212-4 by reference which would have cut about 12 or so pages, but the lovely VAAR requires all the extra VAAR clauses.  The contract specialist here did make a few errors but for the most part this is pretty much a standard RFQ for the VA if going name brand or equal. The VA's duplicity and idiotic extra requirements always bothered me when I was there.  For example, why have VAAR 852.211-73 when you already have 52.211-6?

  5. What you are referring to is GSA's FAR 51 Deviation.  You can read about it at http://www.gsa.gov/portal/mediaId/202559/fileName/MAS_DeviationOrderingGuide_121514.action

    You will find the following in this guide:   When purchasing from a Schedule contract, purchase items at the Schedule contract price (or lower) with no fee/surcharge/markup. If items are provided by the selling contractor at lower than the contract price, the buying contractor must pass on the savings by invoicing the Federal Government accordingly.

    So, in short if you are purchasing off of GSA for the government, you cannot mark it up one single penny.

  6. I have one minor thing to point out.  jlbdca stated that sales to customers outside your basis of award will not trigger a price reduction.  That is not entirely true. If GSA determines that you mis-stated your BOA because you offer lower pricing to another customer or class of customers that can certainly result in issues. They can state that basically you changed your BOA and thereby kick in the PRC. I've seen it done.  The GSA OIG loves this.

  7. Giving it a rating of High, Medium or Low performance risk is a form of scoring, isn't it?  What is the difference between a "risk indicator" and a "score"?  Either of them is used to judge the government's opinion on whether the contractor can successfully complete the task being competed.  Although not perfect, PPIRS is a good, relatively standardized, resource for past performance information.  Just like writing performance appraisals for employees, the value of the rating is only as good as the author, but I think it is an important tool to use.  My office will use it to develop a risk level (aka "score") but we will often go a step further and contact the government POC to ask further questions if we feel the information in PPIRS isn't adequate in order to do the best evaluation possible.

  8. H2H - Although I agree it's the people, not the firm, accepting/evaluating resumes always gives me pause because I have had too many occasions where the person proposed in the proposal isn't the one that shows up to do the work. I hear, "well, we were going to hire that person but he took another job" or "he's needed on another project". The ol' bait-and-switch. I'd rather supplement the resume with the offeror's proposed minimum requirements that any employee used to fill that position will possess.

  9. Okay, even if i concede that in this case the COR was wrong, that still doesn't change the basics of the ruling which is that the FAR is really just a regulation and therefore a supervisor can exert undue pressure on a CO to do something against the FAR and the CO has no recourse but to do it and then grieve. I still believe this is precedent-setting, and dangerous.

  10. So let's ramp this up a notch... under this "act now, grieve later" approach, you're fine with a supervisor directing a CO to award a contract to a friend of his, regardless of source selection?  The CO should just make the award using their warrant (individually issued and responsible) and then file a grievance? I think that's just crazy. This sets a dangerous precedent and undermines the authority of the warrant, imho.

    Also, as noted by Jacques, the supervisor can later say he/she never gave such direction and then the CO is just out there hanging. Yes, I understand that in this case this was a COR, but the principles are still the same.  The FAR is nothing more than a suggestion and really doesn't need to be followed if a supervisor tells you to do something different.  Dangerous.

  11. With this recent development http://www.govexec.com/oversight/2016/06/federal-court-agencies-can-punish-employees-refusing-break-rules/129000/?oref=top-story is the FAR even something we as contracting officers can enforce. I know this case is unique and focuses more on the Whistleblower Act, but doesn't it set a bad precedent? Doesn't the FAR come from the U.S. Code and is therefore law?  I always thought so but that is my ignorance apparently. This one just blew me away. What does this do for contracting officers who rely on the FAR to say no to requiring activities and supervisors when they want us to do something wrong?

  12. Don and Jamaal - Why complicate matters by having to evaluate/negotiate all of that?  I don't see that the gain outweighs the cost/risk here. In fact, I would propose that acquisitions would take much longer to complete because of the additional requirements to review, evaluation and possibly negotiate clauses. Call me old fashioned but I truly believe that the best protector of the government's contracting interests is the government's contracting officer, and that we should dictate the terms and conditions of contracts, not the contractors.

  13. On 5/31/2016 at 6:57 PM, uva383 said:

    Desparado,

    why do you think the drafter of a contract is protected?  Contra proferentem, a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. Based on this doctrine, the Government is actually harmed, with the exception of those clauses where courts have ruled the Christian doctrine applies, if a term or clause is ambiguous or missing from a contract. This is why courts generally rule against the Government when Contracting Officers try to invoke clauses that are missing from the contract, with the exception of those clauses that fall under the Christian doctrine. 

     

    UVA - By my statement I meant that by drafting the RFP/Contract, the government will be able to ensure that the clauses necessary to protect our interests are in place. If you allow the fox to run the hen house, they will only put in clauses that protect their interest.  For example, I'm sure they won't put in any type of T4D clause, or liquidated damages clause, or anything the government currently uses to protect its interests.

  14. This appears to be the type of question that will cause Vern to absolutely go off, appropriately so. No disrespect intended, but I've read many of Vern's comments in the past related to this question and I know he has strong feelings about it.

    I believe that new contract specialists/officers want the answers handed to them and experienced ones think they know the answers already. I don't know of too many contracting people that stay up on the FAR as much as we should.  Sadly, I have to put myself in that category as well. With workloads being what they are, very few have the time to dedicate to keeping up with the various changes. I try, but I know that I fall short...  

  15. Vern - By "leveling the playing field" I simply meant that all offers would be evaluated using the stated criteria and against RFPs that contain the same terms and conditions (clauses).

    I also think that the key thing is that as contracting officers we are responsible for protecting the government's interest to the best of our ability. If we let the contractors write the contracts, it will be written to their benefit.  This is a case of the Golden Rules.  We have the gold, so we should make the rules. In other words, since we are spending the money, we should dictate the terms so that our interests are protected.  Standard language in clauses ensure that the contracts are written in a way that protects us. However, if you let the contractors write the contracts, then each one will be different, with slick lawyers trying to manipulate the language of the clauses to suit their interests.

    Uva - Your example is an interesting one, but limited. Software agreements are one thing as the language is normally pretty simple (no more than a page or two), but applying that methodology to all contracts would be problematic.

    Can you imagine the possibilities? Construction contracts would no longer have liquidated damages clauses. Service contracts may not contain clauses that allow us to extend the contract 6 months. T4D clauses would be absent. I could go on and on. The Government clauses are there to protect us, and I think we should be the author of them.

  16. UVA - I guess this may be one of those areas where we will need to agree to disagree.  I think that leveling the playing field is an important part of government acquisition, and so I would prefer to dictate the terms (that I as a gov't CO feel protect the government's interest) and have a level playing field.  Otherwise, I can see the protest frequency going up at a faster rate than it already is because every contractor is going to think that their T&Cs are the best.

  17. Retread and UVA - Yes, I would have a problem with anyone besides the government (including a large business) writing the contract. I feel this way because the government should be the one protecting the government/taxpayers' interest and we do that through our clauses.  We should be the ones to pick those.

    Vern - As you know, the RFP includes not only the evaluation criteria but also the clauses applicable. As I mentioned in the previous paragraph, it is my humble opinion that we should be the ones to select those clauses because we are the ones tasked with protecting the interest of the government/taxpayer. 

    I also think this would be a nightmare to evaluate.  Regardless what criteria we would attempt to put into the RFP, with each proposal having different terms and conditions, contracting officers would have to incorporate the lawyers onto the evaluation team just to decipher what language the offerors' lawyers would come up with.  We have enough trouble doing proper evaluations just looking at the proposals and costs.  Throw a full-blown evaluation of terms and conditions into the mix and nothing would ever get awarded, or take even longer to do so.

    Although our contract writing systems are (depending on the agency you work at) pains to work with, I do believe they serve a purpose. Yes, we have to do a bunch of data input but in this stage of the information age, everyone (primarily Congress and companies that want to gain an advantage) wants access to this data and so that isn't going away. Better to have all that data captured automatically than to have to decipher a proposal to pull the info out to provide the data to FPDS (as mentioned previously by Shall7. 

  18. I would still never do it. Shall7, I believe you made the assumption that the contractor would accidentally put in a wrong clause. I would propose that there would be some or many that would intentionally insert clauses that would slant things towards them, thereby causing the government to have to hire a plethora of lawyers just to interpret them all in order to protect the government's interest. I rarely disagree with Vern, and so it gives me pause to do so this time, but I think that the Government should be in control of the clauses within the acquisition and the writing of the contract itself. Are we perfect?  No, but we are the ones responsible to the taxpayers whereas the contractors are only responsible to themselves (or their stockholders). I still believe having them put in the clauses would be putting the fox in charge of the hen house. The evaluation could also be a nightmare as now the contract provisions and clauses would almost surely have to be another thing to evaluate and/or negotiate. I think you would lose so much time/money between lawyers and evaluation time that you would lose any benefit gained from trashing the contract writing systems.

    Vern, you want to let the contractors write the RFP? How could that work? Wouldn't they tailor it so that their company wins the "competition"?

    Now that being said, I have no objection to them writing the PWS/SOW, which of course is the concept behind using a SOO (which is not used nearly as much as it should be, imho.

    The small business point of view is just one reason why I don't believe this won't ever gain traction. There is no way the small business community with their influence on Congress will ever let this happen for the reasons Boof mentioned. 

  19. So in your scenario we would have the contractors put in the contract clauses designed to protect the government's/taxpayer's interest?  Wouldn't that be like putting the fox in charge of the hen house?

    Although an intriguing idea, and an interesting discussion, but I don't know that it would gain any traction. Most contracting officers are not lawyers and so having a CO try to review every clause that the contractor would try to slide in wouldn't be feasible.

    Also, since PD2 (granted, it's been a few years since I've used it) builds the contract from the solicitation, is it your proposal that the contractor would also develop the solicitations?  What about the SOW/PWS? I'm going to assume your answer is no to this to which I'll respond with, "If that is the case, then we will still need some type of contract writing system to do the solicitations so why not keep it to move them into the contract?"

    I think there may be more "major" hurdles than just WAWF and FPDS....

  20. GSA's primary goal is to please the people in the Beltway. Once the screams of high prices on the MAS Schedules got to be deafening, GSA came up with FSSI. Now that FSSI is getting old, they are pushing the concepts of Category Management and the Acquisition Gateway. Once those get old or contested, they will come up with a new buzzword or concept so they can continue to show shiny objects to OMB and OFPP. This is one of the reasons I left GSA. 

  21. Apsofacto - Howdy to you as well...  I think it is nearly impossible to get all the agencies to agree on a spec for anything, much less a desk.  Can you imagine a General or a Director being told they have to have the same desk as a worker?  Oh my!!  All joking aside, the requirements are so varied that it would be nearly impossible to do so.  The GSA idea is to reduce the number of contractors from a few thousand to a dozen or so and thereby consolidating the government's requirements and leveraging our buying power. It all sounds nice but in practice it just really hasn't worked well.

    H2H - The Schedules program is very flawed in that regard. However, if a CO ever has the audacity to tell a contractor that they can't have a contract, they then promptly call their local congressperson and then the next thing you know, they get a contract... and then we cancelled it 2 years later due to a lack of sales.  GSA is far too political of an agency (hence why I left there).

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