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ji20874

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Posts posted by ji20874


  1. I conclude that a contracting officer need not/cannot do a new NAICS code analysis for a task order because the NAICS code analysis was already done for the parent IDIQ contract, and the order opportunities must use the NAICS code(s) established in the parent contract.

    I do understand why you won't answer the questions I put to you.


  2. Vern,

    So, then, you would assert that a notice (or solicitation) for a fair opportunity task order must include all the FAR clauses where the prescribing language says to include the clause in all solicitations?

    By the way, I never said everyone else was wrong.  You are wrong to so suggest.  I said that I don't use the word solicitation to describe what the fair opportunity procedures calls a notice, because it makes sense not to, and that I believe the word solicitation was intentionally avoided.  Given a choice between believing the word usage was intentional or unintentional, it is far easier for me to believe it was intentional.  If there was no purposeful intent, then they almost certainly would have used the word solicitation.  But they didn't call it a solicitation -- they called it a notice.  Why do you think they did that?


  3. 1 hour ago, Michael11 said:

    But from an accounting perspective there is nothing that prohibits charging it as direct.

    Well, the costs have to be reasonable in order to be allowable.  In your case, does the purchasing work require the labor category qualifications (and therefore the prices) of the labor categories prescribed in the contract?  If so, more power to you.


  4. here_2_help,

    I understand -- differing interests.  The DCAA auditors want to reduce the overhead pools, and contracting officers want reasonable prices and mission-focused performance.  If I was administering a T&M contract and the contractor was burning labor hours sweeping floors and so forth instead of productive work accomplishing the mission, I would want to redirect the contractor's focus.  Let them sweep floors and charge those hours to someone else's contract.


  5. I'm not saying that it MUST result in an unsatisfactory rating -- but it can.  

    Yes, the process is subjective.  I'm okay with that.  In the scenario you described, a contractor might receive stellar ratings for the other factors, and a non-stellar rating for cost control.  That would be fair, and a future contracting officer making a source selection decision will be able to read the CO's narrative and the contractor's rebuttal.

    There are contractors out there who don't know what a LOC notice is or when to send one.  I try to help them understand.

    By the way, as a contracting officer, I am VERY serious about these notices -- I make it clear to contractors at contract kick-off meetings and so forth.  To me, a contractor's failure to give the notice robs me of the privilege of planning and taking action and protecting the Government and so forth -- I recall reading an excellent decision somewhere that paints this picture.  At the boards of contract appeal, the notice requirement is strictly construed and enforced.  A contractor's stellar technical and schedule performance does not obviate the notice requirement, and the notice requirement applies at 30 days before 85%, not at 30 days after 100%.

    So yes, on one of my contracts, I'll hammer a contractor that fails to provide a notice, because it is important to me.  If I did it to you, you could rebut and say that it isn't a big deal.  And your word would be the last word.  Life goes on.


  6. Okay, if you say so.  

    But you fail to recognize that the contractor writes its own subcontracting plan, and that all subcontracting in that plan is at the contractor's own voluntary election.  Any by the way, none of the clauses you listed REQUIRE any subcontracting -- a contractor could comply with all of those clauses with zero subcontracting.

    I wonder -- is it your position that EVERY specific requirement of a contract may or should be direct-charged to the contract?  Every requirement in every clause?  I think some specific requirements are best handled as indirect expenses.

    For a T&M contract, I would wonder if the purchasing work done by the contractor requires the labor category qualifications of the labor categories prescribed in the contract -- if so, okay, it might make sense.  But even if the contract allows for a senior engineer at an hourly rate of $150/hr, I wouldn't want the contractor to charge that labor category for sweeping the floors at night (let's assume that maintaining a tidy workplace is a specific requirement of the contract), because sweeping the floors does not require the labor category qualifications of a senior engineer.  The original poster has not averred that the purchasing work requires the labor category qualifications of the labor categories prescribed in the contract -- he or she has only said that that the contractor is using those people for that work.  He or she apparently wants to challenge that approach.  I'm trying to be helpful to the original poster.


  7. 13 minutes ago, Michael11 said:

    Right and that singular problem must constitute such serious magnitude that it alone gets you a satisfactory.

    Wrong.  "A singular problem, however, could be of such serious magnitude that it alone constitutes an unsatisfactory rating."  That's a direct quote from Table 42-1.


  8. 23 minutes ago, Michael11 said:

    The definitions state that an unsatisfactory rating would require multiple significant events of failure

    Wrong.  The definitions allow for a singular problem to alone result in an unsatisfactory rating.  See the note for unsatisfactory in Table 42-1 in FAR Subpart 42.15.

    And the boards and courts are seemingly unanimous that a contractor's failure to give a notice such as we are describing is a serious failure.  The citation for the notice for T&M contracts is FAR 52.212-4 Alt I para. (i)(2) for commercial and FAR 52.232-7(d) for non-commercial.


  9. I'll re-do my statement:  The FAR never uses "solicitation" in the context of the fair opportunity process for an order under a multiple-award IDIQ contracts, so I try not to use that word in that context, either.

    In FAR 16.505(b)(1)(iii)(B)(1), the FAR uses "fair notice of intent to make a purchase" instead of solicitation.  In (b)(1)(iv)(A), the FAR uses "notice of the task or delivery order" instead of solicitation.  Indeed, the word solicitation appears nowhere in the lengthy procedures for the ordering process described in FAR 16.505(b).  I believe this is intentional.  What do you think?

    To me, it makes sense for this to be intentional.  I suppose the FAR drafters knew what they were doing in this matter.  If they had used the word solicitation, they would have created real problems with the rest of the FAR.  For example, there are many places in the FAR where one reads that a particular clause is required "in all solicitations and contracts" or "in all solicitations and contracts exceeding the simplified acquisition threshold" and so forth.  The FAR drafters did not intend for these clauses to be included in the notices under FAR 16.505(b), so they didn't describe these notices as solicitations -- instead, they called them notices.

    If a contracting officer does not understand this, and insists on describing these notices as solicitations, then he or she will have to comply with the FAR and insert all of those clauses where the prescribing language "in all solicitations and contracts" or "in all solicitations and contracts exceeding the simplified acquisition threshold" and so forth.  With this lack of understanding, the contracting officer will try to force a NAICS code analysis into every order opportunity, even though it will produce an unintended and even absurd outcome of issuing an order with a NAICS code not provided for in the parent IDIQ contract (and which the automated system will likely not accept), in violation of both the FAR and the small business regulations at 13 CFR.

    Vern is correct that there is one use of the word solicitation in the context of brand-name justifications in FAR 16.505(a)(4) -- but for me, that one stray use does not overcome the complete and intentional absence of the word in 16.505(b).  But if it does, then you must take it to the logical conclusion:  your notice solicitation for an order opportunity must contain every clause or provision in the FAR where the prescribing language says "in all solicitations and contracts" or "in all solicitations and contracts exceeding the simplified acquisition threshold" and so forth.  And if you decide to do a new NAICS code analysis for an order opportunity because FAR 19.303 says solicitation, well, I don't know how you will get FPDS-NG and your own local automated system to accept a new NAICS code for the order.

    For all these reasons, I support the FAR drafters in using the word notice instead of solicitation in the ordering processes described in FAR 16.505(b).

    Having said all that, I am aware that many others do not see this distinction (perhaps including those who later added the word solicitation in 16.505(a)(4)).  Instead of the ordering process being seen as a matter of post-award contract administration (the original intention), we as a community have turned it into another convoluted and difficult pre-award process.  Insisting on doing a new NAICS code analysis for an order opportunity, because we insist on imposing the word solicitation in FAR 16.505(b) where it never appears and then seeing that FAR 19.303 uses the word solicitation, is an example.


  10. 8 hours ago, ji20874 said:

    My recommendations:  learn as much as you can, and use everythIng you learn to help support the mission.  You will build technical and professional credibility.  Then, you will be in a position to start making any needed changes.

    Best wishes wherever you go.  The advice you got here is good advice.


  11. I don't know any more than I can read here, so what I'm writing is supposition.  Maybe the command is tired of people who want to disrupt accomplishment of the mission with an academic or pedantic focus on transparency or whatever is the buzzword of the day.  Maybe they have a contract that works, and they don't want to mess up a good thing.  My recommendations:  learn as much as you can, and use everythIng you learn to help support the mission.  You will build technical and professional credibility.  Then, you will be in a position to start making any needed changes.  I suppose I am like others -- I don't like it when I'm doing by something difficult but legal, and others with less skin in the game and holier-than-thou perspectives start using words like ethics to question my actions -- they're wrong, and they don't understand, and they need to learn a lot before trashing my work.  Maybe this is causing the vibe at your command?


  12. If you have fourteen days to respond in the CPARS system, then you have fourteen days to respond in the CPARS system.  If you talk to the contracting officer, that's all well and good, but you still have fourteen days to respond in the CPARS system -- meeting with the contracting officer or the level-above does not toll the fourteen days.

    In the system, you either concur or non-concur -- either way, you can enter your own comments for the benefit of future readers.

    In the system, the only way to trigger a review by the level-above is to non-concur.  If you can talk to the level-above, that's all well and good, but you still have fourteen days to respond in the CPARS system.

    3 hours ago, Michael11 said:

    We are not prepared to fight tooth and nail for this but would like a chance for the government to hear us out and reconsider.

    Then you must act quickly -- as early as possible, try to meet with the contracting officer -- maybe you can convince him or her to withdraw the CPARS action and re-work it -- do your best, and do it quickly -- but if you are not successful, then you need to respond within the system within the fourteen days.  The Government cannot change your text, and whatever you write will be available for any future readers of the report, so you can make your case.  

    My recommendation:  Remember what CPARS is all about -- a repository of information for contracting officers to use on future source selections -- don't be a cry-baby and don't be a bully, as it won't look good to contracting officers on future source selections.  Be professional.  State your disagreement with the rating and tell about the great work you did.  Tell about the favorable feedback you got from Government staffers as work progressed and how surprised you were by the CPARS rating, especially given the total absence of any negative feedback as the work progressed.  I won't give advice about whether you should concur or non-concur -- my only advice is to enter high-quality explanatory text for the benefit of the future reader to offset any damage that might be done if the reader only otherwise sees on side of the story.  Tell your story.  Remember, fourteen days.


  13. Your offer with ceiling rates + the Government's acceptance of your offer = a binding contract.

    I haven't read your contract, and I only know what I have read here, but I am doubtful that you can successfully make a mistake-discovered-after-award case.  If you want to try, get out of FAR Subpart 50.1 and instead look at FAR 15.508.

    But you did say you won a multiple-award IDIQ contract.  Generally, orders under multiple-award IDIQ contracts are issued on a fair opportunity to be considered basis, so you will have a chance to submit an offer for each order opportunity.  The Government might still be able to issue an order to you as an exception to fair opportunity, but that is not the normal approach.

    Usually, a multiple-award IDIQ contract establishes ceiling rates or ceiling prices so that it can make best value selections of the IDIQ contract holders.  Then, contract holders are free to propose lower rates or prices for individual order opportunities.  You might be unable to offer lower rates or prices, but you cannot offer rates or prices higher than the ceilings you offered and the Government accepted to form the contract.


  14. 35 minutes ago, elgueromeromero said:

    “Was the awardee’s proposal received in the contracting officer’s inbox by 3:00 pm EDT”?

    Sure, that's a fair question.  The answer will be:

    • "YES"; or 
    • "NO, but the contracting officer accepted the late offer based on the [electronic commerce or government control] exception described in para. (c)(3)(ii)(A)[(1) or (2)] of the solicitation provision at FAR 52.215-1".

    There is nothing to be afraid of.

    Contracting officers reject late proposals (except where allowed such as we're discussing) based on their commitment to the integrity of the procurement process.  If circumstances allow for acceptance of late proposals, contracting officers are not embarrassed to explain why they accepted them.  I'm talking about contracting officers that are honorable and knowledgeable.

    If you are preparing for a debriefing, you can ask the unsuccessful offeror attendee to share with you in writing before the debriefing any questions they want answered that fit within FAR 15.506(d)(6).


  15. D_Wess,

    Is there expertise within your agency that you can call on to help you understand whether or not you actually have an actionable contract claim?  Should the SF-95 be used instead?  How do the cost principles in FAR Subpart 31.2 apply to your situation?  And so forth?  This is a great learning opportunity for you.

    Has the contractor made a claim (or demand) for idle time?  Or is this something you want to give the contractor?

    Your actions must not be solely based on being nice to the poor small business contractor -- your agency should give you guidance -- I hope you ask for it.  But, as I wrote earlier, I am a former Forest Service contracting officer and I understand that help might be far away.


  16. 52 minutes ago, elgueromeromero said:

    But should the GAO or COFC decisions influence the CO's decision?

    Sure -- but they disagree -- so the contracting officer needs to make his or her own decision, one way or the other, based on the facts at the time -- the contracting officer cannot declare an inability to make a decision, wringing his or her hands and bemoaning the different precedents (not making an argument that the decisions are precedential, just acknowledging their existence).

    4 hours ago, elgueromeromero said:

    2. As part of a post-award debriefing for an RFP that required electronic submission of proposals, can the contractor receiving the debrief request evidence of the time of reciept of the successful offeror’s proposal, or would this have to be requested through FOIA?

    The unsuccessful contractor may request anything it wants.  But the contracting officer is only required to provide reasonable responses to relevant questions about whether source selection procedures were followed (FAR 15.506(d)(6)).  The contracting officer is not required to provide evidence of anything at a debriefing. 


  17. 1 minute ago, joel hoffman said:

    ji, are you saying that a CO decision within 60 days,  must include the final settlement or that the settlement is unilateral?  I don't think so.

    Joel, please don't put words in my mouth.  There is no reason for that.  Why don't you address what I actually wrote?

    The listing of what must be included in a contracting officer's final decision are in FAR 33.211(a)(4).  This includes the pertinent contract terms and a statement of the factual areas of agreement and disagreement.


  18. The contracting officer needs to make a decision -- his or her own decision -- based on the facts and the solicitation instructions.

    Personally, I tend to favor the GAO approach -- the GAO has continued to rule as it does, repeatedly, since the last COFC decision.  

    But each contracting officer needs to make his or her own decision -- the contracting officer cannot abdicate the decision-making role to the GAO or the COFC.

    For the time being, I am okay with some variety in practice in this matter.  Is that a problem?

    What do you think?  You're a contracting officer -- do you think the Government control exception for late offers applies to electronic proposals? or do you think the electronic commerce exception (with its one-day-prior rule) is the proper tool for late electronic proposals?


  19. Thanks, Vern.  Joel, we're only talking about up to 60 days.  In a claim situation, as we're discussing here, it is perfectly reasonable to address everything in a single final decision within 60 days.  So the contracting officer need not bifurcate the claim to deal with the easy portion, for example, 10 days after receipt and the difficult portion 60 days after receipt.  But if the contractor thinks there is any undue delay by the contracting officer in rendering a decision on a claim, FAR 33.211(f) already provides the remedy.  

    I have learned from experience that some contracting officers are too eager, too hasty, to give away money to contractors, with or without an understanding of correct principles.  I don't know that this is the case here, but I do advise caution and due diligence in these matters.


  20. Retreadfed,

    The clause at FAR 52.219-14 does not require any subcontracting -- but if any occurs, at the contractor's election, then the clause may apply.  

    The clause at FAR 52.219-9 does not require any subcontracting -- but if any occurs, at the contractor's election, then the clause may apply.

    Where subcontracting is allowed, the contractor must follow any rules established by the contract.  But I think it is rare for a contract to require (not merely allow, but require) subcontracting, even rarer for a contract to require competitive subcontracting, and even rarer still for a contract to require that the subcontracting selection be performed by particular contractor employees.  I have awarded and administered contracts where we required the contractor to obtain certain test reports from independent third-party laboratories, for example, and in a T&M situation, those testing services could be seen as incidental services under materials, but I would generally expect the back office administrative work of setting up and administering those subcontracts to be covered as indirect expenses.


  21. For the successor task order (the new task order):  

    1. It was awarded on 9/20/2017.  
    2. It was awarded on a SAF (subject to availability of funds) basis, so it included the clause at FAR 52.232-18, Availability of Funds.
    3. The task order award was protested on 9/29/2017.
    4. The task order was not canceled or terminated.
    5. Either performance was not stayed, or the stay was effectively lifted when the protest was withdrawn.
    6. Because of the protest, the Government did not provide notice to the contractor that funds were available.
    7. The protest was withdrawn on 11/13/2017.
    8. The contractor is ready to perform and is waiting for the notice promised in the clause at FAR 52.232-18.

    Are all of the above facts correct, regarding the successor task order?  If YES, then all you need to do is give the contractor notice that funds are available and the contractor can start performance.  You can turn off (terminate or otherwise end) the extension of the predecessor task order.

    If you canceled or terminated the successor task order, well, too bad -- there probably was no need, and it is not customary practice.  You might need to do another fair opportunity consideration.

    If the Government's requirement has substantially changed, you might need to do another fair opportunity consideration.  Or, maybe it would be best to simply turn on the successor task order and immediately (the same day?) do a partial termination to reflect the Government's present requirement.

    But hasn't the successor task order already been awarded?  On 9/20/2017?  Why are you asking about a new award?

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