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Posts posted by ji20874

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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?

  6. 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.

  7. 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.

  8. 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).

  9. 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.

  10. 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. 

  11. 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.

  12. 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?

  13. 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.

  14. 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.

  15. 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?

  16. 30 minutes ago, here_2_help said:

    But the contractor doesn't have those labor categories in its compensation system. Instead, it has software engineers, electrical engineers, mechanical engineers, program managers, program office support (finance, contracts, etc.), and many others. Thus, it has to map its labor categories to the contract-specified labor categories.

    I understand better now.  Thanks.  Yes, where a contractor's labor categories don't match a contract's labor categories, a contractor will do the mapping you describe.  Even so, the contractor's pre-contract mapping isn't dispositive in a post-award inquiry -- the question will be whether the electrical engineer being charged actually meets the qualification requirements prescribed in the contract for the mid-level engineer, for example, at the time the work was performed.

    52 minutes ago, Michael11 said:

    The folks who conduct these 'competitions' for lack of a better word are the same ones doing the project work.

    Okay.  In addition to here-to-help's good advice, there is also another perspective to consider.  Let me ask you -- if a T&M contract allows for a master at $100/hour, a journeyman at $75/hour, and an apprentice at $10/hour, is there any expectation that the contractor will bill the master rate only for work requiring the master's expertise or credentials or so forth, and will bill journeyman or apprentice rates for the less-skilled work?  For the two hours spent sweeping the shop floor, should the Government expect to pay $10/hour or $100/hour?  In other words, do you pay the master rate for apprentice work?  It seems to me that when the contractor is doing apprentice work, it should be charging the apprentice rate, regardless of whether the master or the apprentice actually does the work.  In your case, does the purchasing work done by the contractor require the labor category qualifications of the labor categories prescribed in the contract?  Maybe it does.  Is your organization applying appropriate surveillance over the contractor to protect its interests in these sort of situations?

    I like to think of the purchasing work you describe as indirect expense work.  If a contractor voluntarily elects to seek a subcontractor for a portion of the work, why should the Government pay 100% for the costs of implementing that decision?  Shouldn't the hourly rate portion of the T&M payment cover work required by the contract?  Elective work, such as seeking a subcontractor or re-painting the work space, should generally be covered indirectly.  Does your contract require (not merely allow, but affirmatively require) the contractor to select subcontractors for specified portions of the work?

  17. Generally, the contracting officer's final decision on the entire claim is due within 60 days of receipt of the claim.  So do it -- one decision within 60 days -- just do it.

    The contractor's small size status does not entitle it to a faster claim resolution -- 60 days.

    Again, I strongly advise paying nothing until you are at agreement on the total amount to be paid.  Don't be so quick to pay before knowing all the facts, and don't be so quick to give up whatever negotiation leverage you might have.  For example, have you ascertained whether the contractor's equipment loss was covered by insurance?  If the contractor's loss was covered by insurance, there might not be any basis for a claim against the Government, especially if the contract required the insurance or the Government paid for the premiums directly or indirectly.

    And being a former Forest Service contracting officer, and knowing how the Forest Service works, I still advise not being too hasty to give away our money.  60 days isn't too long.  And if it really takes longer than 60 days, it is better to take the longer time and pay a small interest charge than to agree too hastily at too high an amount.

    The above is my general preference.  In the real world, you have to do what works best, and Vern gives good advice.  But please, before you agree to the equipment loss, follow-up on the insurance lead.

  18. 46 minutes ago, here_2_help said:

    If the contractor can't show you that the hours were mapped to one or more hourly billing rates, then that's going to be a problem for the contractor. If the contractor can show you the mapping, then I don't see how you can ethically object to paying for the costs (assuming the hourly billing rates and resulting contract price were found to be fair and reasonable).

    For hourly rate charges, what about the requirement that the labor category and hourly rate be specified1 or prescribed2in the contract?  If it's not specified or prescribed in the contract, then it's not payable -- it's the contract that establishes entitlement to payment, not the contractor's working papers.  Or are you introducing an error-discovered-after-award scenario? 

    1FAR 16.601(b)(1).
    2FAR 52.232-7(a)(1) and 52.212-4/Alt I (i)(1)(i)(A).

  19. Vern,

    I agree that ODCs are part of the definition of materials.  I didn't opine on whether the purchasing cost is or is not an ODC -- I have to leave that to the original poster to decide, as he or she is far closer to the facts than I am.  My point was that for the purchasing cost to be directly payable under the T&M contract, it will have to fit under either the heading of hourly rate or materials, one or the other -- a discussion about whether the costs are directly chargeable without invoking this T&M context is a fruitless discussion. 

    And as you and I both pointed out, even assuming the purchasing cost does fit as an ODC under materials, the cost still will not be payable unless listed in para. (i)(1)(ii)(D)(1) of FAR 52.212-4 Alt I if we're talking about a commercial T&M contract. 

    I think we're in agreement.

  20. Joel's question was right.  As a result, the original poster clarified that this is a T&M contract.  Based on that answer, I don't think it is necessary to look at disclosure statements and so forth.

    Under a T&M contract, the contractor may invoice for (and the Government may pay for) only two categories of cost:  

    • hourly rate (see FAR 52.232-7(a) for non-commercial contracts or 52.212-4/Alt I(i)(1)(i) for commercial contracts) and
    • materials (see FAR 52.232-7(b) for non-commercial contracts or FAR 52.212-4/Alt I(i)(1)(ii) for commercial contracts).

    If the purchasing cost doesn't fit into one of these categories, the cost isn't payable, period.  Oh, and by the way, if it is a commercial T&M contract, and if the purchasing cost isn't listed in the fill-in for para. (i)(1)(ii)(D)(1) or of FAR 52.212-4 Alt I, it cannot be payable as an Other Direct Cost (ODC).  

    We must not turn a T&M contract into a cost-reimbursement contract.  If the purchasing cost doesn't fit under hourly rate or materials, as those terms are understood in the context of T&M contracts, it isn't payable, period.  No discussion of disclosure statements will make it payable directly under the T&M contract.

    To answer the original poster's question:  is there a circumstance where you could justify these costs as direct, billable costs?  Yes -- propose establish a labor category and hourly rate and specify this in the T&M contract.  If the contracting officer doesn't laugh at you, who knows, you might get it -- all sorts of strange things happen under T&M contracts.  But it would seem to me that FAR 31.205-18(c) ought to be considered before adopting this approach.

  21. There are a number of soft reasons.  The purpose of the NAICS code is to allow offerors to represent themselves as large or small (FAR 19.101(b)(3)).  This occurs at the time of offer for the parent IDIQ contract.  The contracting officer includes the NAICS code (or sometimes, codes) in solicitations (FAR 19.303(a)(1)).  The FAR never uses "solicitation" in the context of an order under an IDIQ contract, so I try not to use that word in that context, either.  We understand that a contracting officer can ask for re-representation of size status for an order opportunity under multiple-award IDIQ contracts, but that re-representation is always based on the NAICS code assigned to the contract (FAR 52.219-28(c)), not an entirely new NAICS code.  To me, it just doesn't make any sense to try to apply a wholly new NAICS code to an order opportunity under multiple-award IDIQ contracts.

    I try to maintain a purist approach that issuing orders under IDIQ contracts is really a matter of post-award contract administration, and all the pre-award stuff in the FAR regarding contract formation doesn't apply except as FAR Subpart 8.4 (for orders under schedule contracts) or FAR 16.505(b) (for orders under multiple-award IDIQ contracts) explicitly requires.

    Another short answer:  Every new requirement doesn't receive an independent NAICS analysis -- every new contract does (FAR 19.303) -- but sometimes, we satisfy requirements without awarding new contracts.  In this context, an order under a multiple-award IDIQ contract is not a new contract.

  22. If the parent IDIQ contract has only one NAICS code, then every order under that contract must use that NAICS code.  If the order work is within the scope of the parent IDIQ contract, it doesn't matter if the NAICS code precisely fits the work.  The purpose of the NAICS code is not to describe the work -- rather, the purpose of the NAICS code is to help. establishing the size standard that will apply in the acquisition for the parent IDIQ contract.

    FAR 19.303 applies to parent IDIQ contracts, not to orders under IDIQ contracts.

    For IDIQ contracts, 13 CFR 121.402(c) allows the NAICS to be assigned at the parent IDIQ contract level, or at the CLIN level -- however, I don'k many of our automated contracting writing systems will accommodate this regulatory flexibility.  Certainly, FPDS-NG does not recognize it, and forces the contract's single recorded NAICS code to every order.

    Short answer -- if you are issuing a task order under an IDIQ contract, the order takes the NAICS code of the parent IDIQ contract -- you need not waste your time trying to find a NAICS code that fits better.