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Blog Comments posted by ji20874

  1. Acq NewB,

    I gave you good advice.  Anyone errs who suggests that the fill-in in para. (d) of the clause at FAR 52.216-22 serves as a permanent limit on the right of the parties to mutually agree later to something else, or serves as a limit on either party's privileges under other contract clauses that allow for contract adjustments, equitable adjustments, and so forth.

    The fill-in in para. (d) of the clause at FAR 52.216-22 serves as a limit on the Government and a protection to the contractor -- the Government may not unilaterally require the contractor to make deliveries after that date.  But the fill-in does not stop the contractor from voluntarily making deliveries after that date, and does not stop the Government from voluntarily accepting deliveries after that date.

    Clearly, the Government could not unilaterally issue an order that requires delivery after the date in the fill-in for para. (d) of the clause at FAR 52.216-22.  But this is not your situation, so the fill-in for para. (d) is not a limitation on your bilateral modification wherein both parties agreed to a new delivery schedule.  Your contractor needs to keep its promise and perform.

  2. 40 minutes ago, StePa said:

    In my company's situation, we have decided to accept the modification as it does not impact us nor do we have subcontracts greater than $30,000 requiring us to collect and submit information in compliance with the clause.

    I think you're looking at it the right way -- you're making this a business and relationship decision, rather than a contracts decision.

    Even if you have a "right" to something (such as consideration for a change), that right has to be balanced with business and relationship. But since you're wondering from an academic perspective, I wonder -- if you did ask for compensation (consideration) for this modification, how would your prime respond? Your prime could (1) agree with you and increase the subcontract price; (2) laugh at you but continue the relationship; or (3) laugh at you and harden or end the relationship.  So the answer is not one of the-FAR-says or contract rights -- it is one of leverage (business and relationship).  In some cases, the prime contractor has the leverage -- in other cases, the subcontractor has the leverage.  So the answer changes on a case-by-case basis.

  3. 5 minutes ago, StePa said:

    Recently the prime contractor approached us in adding FAR 52.204-10 to our contracts.

    Which of the following tells the rest of the story?  

    1.  The prime contractor unilaterally modified our subcontract to include the clause.

    2.  The prime contractor intends to unilaterally modify our subcontract to include the clause.

    3.  The prime contractor wants to bilaterally modify our subcontract to include the clause, and has asked for a proposal from us for this purpose.

    4.  The prime contractor wants to bilaterally modify our contract to include the clause, but is not inviting a proposal from us for this purpose.

    5.  Other:  _________________.


  4. Junius,

    Another way to say it:  contracting officers are no longer expected to be professionals that delivery the best possible business solutions to help accomplish an agency's mission -- rather, they are expected to be clerks.  "Management and lawyers" want a procurement program that spends money and generates little risk, while caring little or nothing about the best possible business solutions to help accomplish an agency's mission.

  5. An offeror intending to submit a proposal by e-mail really, really, really should make its submission by 5:00 p.m. one working day prior to the date specified for receipt of offers."

    An offeror who fails to do so, and whose proposal is late, should protest to the Court of Federal Claims instead of to the GAO.  I'm with the GAO on this matter.

    Desparado, I've done a number of bid openings but I've never had that pressing situation -- I have had situations where a bidder arrived late and he knew he was late, so there was no complaint.  At a bid opening, I always clearly announce when the time set for bid opening has arrived, as you probably do, too.  In training others to do bid openings, I remind them that they must have the professional backbone to declare the time and then to stand by their announcement.  I tend to discern that many of our younger colleagues do not have sufficient backbone to do it.

  6. Here's a great idea (since only great ideas are invited) -- I made the submission on the 809 Panel webpage a few minutes ago...

    Detailed Description of the Challenge 

    How many GS-1102s does it take to make a contracting decision? 

    If a contracting officer's decision or recommendation has to be approved by a higher-level official, such as the HCA, there may be six, eight, ten, or fifteen or more GS-1102 (or military equivalent) persons in between the contracting officer and the HCA.  And we're not even talking about lawyers.  We need to streamline the decision-making process. 

    Proposed Solution or Recommendation 

    Maybe in DFARS Part 201: 

    When acquisition regulations require approval of a contracting officer decision or determination at some level above the contracting officer, the following instructions shall apply: 

    When the action requires (a) approval within the local contracting office or center, or (b) review by the chief of the contracting office before submission to the head of the contracting activity, there shall be no intermediate GS-1102 (or military equivalent) persons as reviewers within the local contracting office or center.  The contracting officer may submit the action directly to the approving official or chief of the contracting office for consideration.  However, if the approving official's or chief of the contracting office's position is graded for a member of the Senior Executive Service (or comparable or higher position, including a general or flag officer in the armed forces), the approving official or chief of the contracting office may appoint one GS-1102 (or military equivalent) person to perform a staff review as part of his or her consideration of the action.    

    When the action requires (a) approval by the head of the contracting activity (HCA), or (b) review by the HCA before submission to the agency head, the HCA may require an intermediate review by the chief of the contracting office (see the paragraph above).  In addition, the HCA may appoint one GS-1102 (or military equivalent) person on his or her staff to perform a staff review as part of his or her consideration of the action. 

    If the approving official, chief of the contracting office, or head of the contracting activity desires the formal input of other GS-1102 (or military equivalent) persons before making a decision on the action, he or she may convene an in-person or virtual meeting for that purpose.  The contracting officer should be invited to participate in the meeting whenever practicable.  The names of all attendees shall be recorded for the record in the contract file. 

    The above paragraphs only limit GS-1102 (or military equivalent) reviewers for actions requiring approval above the contracting officer level and up to the head of the contracting activity.  Reviews by attorneys or other specialists or advisors are not limited by these paragraphs.

  7. I'm okay with the GAO's decision.


    If Genesis (the protester) disagreed with the requirement for past performance questionnaires completed by previous customers, it should have protested this before the date set for receipt of offers.  That's the rule.  To wait until after it learns that it was not selected, and then to file a protest, is improper.

  8. boricua,

    8(a) is different.  An agency cannot award an 8(a) contract without the SBA's permission, and the SBA grants admission to its Business Development program based on NAICS codes.  Thus, a company can be enrolled in the SBA Business Development program (and thus be eligible for an 8(a) contract) for one one NAICS code but not another -- it might be small for both, but 8(a) only for one.

    But this only applies to 8(a).  For a general small business set-aside, there is no requirement that a company's SAM listing include a solicitation's NAICS code, as the GAO reminded us -- same for HUBZone and SDVOSB, where eligibility is not driven by NAICS code.

  9. Don,

    There is tribalism and incompetence and small-world-view within DAU, too.  We would probably need an independent board of some sort to develop and update the test -- but who goes on that board?  Still, I like the idea of a test of professional knowledge.



    I agree that the current crop of DAU web-based training is ineffective -- the in-person training is, too, to a large extent -- we send people to those courses to check boxes for certification rather than with any expectation of meaningful learning.  On this regard, DAU as a whole had been a total failure.*  But still, I believe web-based training can be effective if done right.

    Certainly, we don't need one master test -- I much prefer small tests and smaller certifications.

    *I mean no disrespect to past or current DAU staff -- just an honest observation in the hope of meaningful discussion.  

  10. Don,

    The problem is that shaman might be the one selected to write the module that will grade everyone else's competence in fair opportunity considerations.  Or, to reference an earlier example, the dimwit who thinks the determination to include options has to be in a FAR Subpart 1.7 D&F format might (likely will) be selected for that module.  I fully support the idea, but I would likely be deeply troubled by the implementation details.

  11.      "My complaint about all the presidential appointee/career management calls for initiative and innovation is that they they’re not honest about just how hard it is to move a bureaucracy in a new direction, even if by only a compass point or two. Such faithless calls risk alienating the very people the bosses claim to want to motivate, especially newcomers, who might react badly when their initiatives are rejected. The bosses may be preparing fertile ground in which to grow a new generation of cynics.

         "In my experience, many, maybe most, working level proposals for innovation fail, because the initiators didn’t know what they were in for, didn’t understand the need for intelligence and tactical planning, and made a poor presentation. They wanted to beneficially change their agency’s behavior, but they didn’t know how to go about it in the right way."

    There is some truth here.  The posting focuses on the second paragraph, but I wonder if the real problem is really in the first -- I wouldn't want the major part of the blame for no innovation to lie with working-level professionals because they didn't do a good enough job selling their ideas upwards -- in my mind, the major part of the blame lies with the senior leadership of our agencies and their "faithless calls" and even outright hostility to rocking the boat.



  12. I still see it as a lot of work, and I am having a hard time seeing the utility of the effort.  But that's just me.  I prefer to rely on original source information rather than homemade desk-guides and so forth, however well-intentioned, because I have learned that it is hard to get these things right and it is almost impossible to keep them up-to-date...

  13. Of course, I don't know why they chose the word -- but I'm okay with it -- there is something about a good GS-1102 that goes beyond "proficiency" as might be measured by a written test -- we also might say a person has skill in producing a solicitation, if skill means putting a document together. But I am supportive if they are trying to say that there is something more -- we have to actually deliver results in our service contracting -- we're not just clerks, after all -- and if tradecraft means the skills and experience and savvy to actually deliver value and results in our contracts, then maybe we need a new word.

  14. The purpose of the report, as I remember it, was that the Army itself had a problem of a culture where success can only be achieved by compromising the truth. I would rather condemn the Army culture as an institution than the Army officers as individuals. I was glad to read the report, because I was actually reading some honesty in an official Army publication.