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Troy

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About Troy

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  1. So I received an advisory opinion from OGC Procurement Law Group today (OGC Ethics Group opinion pending as well). Below is a synopsis of their response to my three main questions as follows: 1. Is there precedent permitting the PM to make such a referral? Answer was No, with references to FAR 3.101-1, 5 CFR §§2635.502 and 2635.702. Essentially, by the PM making the referral it would be viewed as influencing the contractor to provide preferential treatment to the friend of the Government employee for their financial gain, and additionally, due to the PM also being a benefactor of the contract, there is a personal benefit to the PM gained by virtue of his Government position. They further stated that it would present a conflict of interest for the contractor in question to accept such a referral. Additionally, it would be improper for the CO to knowingly accept any candidate submitted by the contractor that had been hired under these circumstances. 2. What are specific violations that would apply? Answer was, pursuant to the prohibitions cited at title 5 CFR, there would be a financial interest favoring a friend or affiliate of a Government employee and therefore the violation would be in accordance with 18 U.S.C. § 208(a). 3. What is an appropriate alternative? Answer was, there was no prohibition against the PM making his friend aware of a public job announcement [emphasis on public information] that his friend could then respond to through typical hiring practices. They stated "by doing this, the employee avoids the appearance that the employee used his or her government position to influence or induce the government contractor to hire the personal acquaintance of the employee." On this last answer, I would actually take exception given the details of this specific scenario, based on OGCs earlier assertion with regard to the PM being a direct benefactor of the contract service. While the PM might well avoid having actually influenced the contractors decision, if the contractor were to ultimately hire this friend, even if highly qualified, in accordance with 5 CFR 2635.702(d) I believe it would certainly give rise to the appearance that public office might have been used to influence the contractor. At the very least, like Vern stated, it would at a minimum give rise to an awkward situation during contract administration. If the OGC Ethics Group come back with an opinion that's fundamentally the same as the above, then I won't update this post, but if there is new information to inform this discussion I will share.
  2. I appreciate all the feedback. Having come from a contracting office to now working in a program office, and seeing the various goings-on first hand, has been quite the education for me. To provide added perspective - the contract in play includes optional labor hour CLINs for a Lean Six Sigma specialist. The program manager knows a guy, recently retired from active duty, that he is wanting to refer to the incumbent for employment. Once the optional CLIN is exercised, the hope is, that the incumbent will be able to hire the specialist they received on referral. There may well be nothing inherently wrong here, just wanted to get a sanity check. I have also sought an opinion from OGC on this matter as well. I'll post their response for the benefit of this discussion.
  3. Given the title of this post what, if anything is wrong with this scenario? Is there precedent whereby the Government, seeking to acquire a specific skill, is permitted to headhunt a resume from someone they know and to farm it out to one of their existing incumbent contracts; intending for them to be hired and to work in support of the Governments requirement under contract? What are the specific violations that would apply? What is an appropriate alternative? Looking for GAO, court rulings, FAR, statute etc.
  4. Thanks all, FAR 9.505-2(a)(1)(ii) appears to speak directly to the subject at hand. Specifically, "the rule" prohibiting a contractor who prepares or furnishes "complete specifications" from also performing them; offers an exception whereby this rule shall not apply to- "Situations in which contractors, acting as industry representatives, help Government agencies prepare, refine, or coordinate specifications, regardless of source, provided this assistance is supervised and controlled by Government representatives."
  5. I once found a reference that cited parameters whereby contractors could be allowed to contribute to defining a Government requirement (now nowhere to be found). Does anyone know of citations dealing with this topic and the rules that apply? How would this effect the Governments ability to conduct a meaningful industry workshop, for the purpose of helping define a future requirement, and still allow participants to be able to compete afterward?
  6. Thanks for all the valuable input. The next move I intended was to ask for an updated OGC opinion on the matter. Just wanted to make sure I wasn't missing something obvious before I went to them.
  7. My initial question was exactly that, maybe when the statute was written, personal services meant something else. I sought out in-kind statutes and compared 10 U.S.C. 1091 "Personal Services Contracts", and what I found is that this related statute was amended by P.L. 103-160 NDAA 1993 to add the term personal services. The subject statute (38 U.S.C. 513) became law in 1991, so there is certainly sometime in between the two, where the definition of personal services could have still been evolving. In an effort to find a harmonious interpretation of these two statutes I went back to FAR 37.101 Definitions and looked at Non-personal services. Specifically FAC 84-40 to establish what would have been meant by personal services in the years prior to the codified laws in-kind. GAO B-224592 Dec. 23, 1986 and B-234146 Mar. 31, 1989, among others, helped to establish that the definition of personal services we know today is the same definition prevailing during the time both statutes where drafted. Again, in an effort to conclude external consistency with the related statutes and to find a harmonious interpretation, unless the statute in its own text, offers a different definition of personal services, I can only assume the FAR definition is the standard that was used by Congress, the same as it was used by GAO. However, without any statements of the legislature to assist in the interpretation, it might never be known for sure.
  8. 38 U.S.C. 513 "Contracts and Personal Services" "The Secretary may, for purposes of all laws administered by the Department, accept uncompensated services, and enter into contracts or agreements with private or public agencies or persons (including contracts for services of translators without regard to any other law), for such necessary services (including personal services) as the Secretary may consider practicable." General Counsel has held that the plain language of the statute above did not intend to authorize issuance of a contract for any service that creates an employer-employee relationship. FAR 37.104(a) say that "[a] personal services contract is characterized by the employer-employee relationship it creates..." I'm confounded by OGC's advisory opinion, in that, the principle cannon of statutory construction is that the legislature says what it means and means what it says. In my view, OGC has by their interpretation, rendered meaningless the term "personal services" from the statute. My question is simply, did the legislature really mean "personal services" or not?
  9. I do believe that covers it. Guess I got hung up searching for the specific term "product prequalification". Appreciate the help.
  10. Specifically, with regard to FAR 19.705-2(B )(2), when making the subject determination; "[w]hether there are likely to be product prequalification requirements" is listed as a relevant factor to be considered. The only reference to product prequalifications I've been able to find is in DFARS PGI 217.75 "Acquisition of Replenishment Parts" at subsection 1-103.25 Qualifications as follows - Any action (contractual or precontractual) that results in approval for a firm to supply items to the Government without further testing beyond quality assurance demonstrations incident to acceptance of an item. When prequalification is required, the Government must have a justification on file— (a) Stating the need for qualification and why it must be done prior to award; (B ) Estimating likely cost of qualification; and (c ) Specifying all qualification requirements. http://farsite.hill.af.mil/vfdfara.htm My question is, would the above reference be the only guidance concerning product prequalification requirements; and consequently if they are required, what needs to be considered, with regard to subcontracting possibilities?
  11. Thanks ji20874 and Vern for the examples, I really appreciate it. To answer Joel's question, we do issue fully burdened labor rates as you have illustrated. Also, thanks to Martin for citing that FAR reference. Respectfully,
  12. I concur, I would fully intend on it being a straight forward approach. I'm not looking to recreate the wheel, just some ideas or examples of what others might have done. I've always heard $500 thrown around which seems randon at best.
  13. Where the FAR states IAW 16.504©(1)(i) that we "must" give preference to make multiple awards of IDIQ contracts (with must being akin to "shall" as the imperative), one of the six criteria for determining not to use the multiple award approach is "[t]he expected cost of administration of multiple contracts outweighs the expected benefits of making multiple awards" IAW FAR 16.504©(1)(ii)(B )(3). In order to effectively "weigh" the cost vs the benefit I'm looking for insight regarding how to quantify the cost of administering a contract. I contacted DCMA and they didn't have a protocol to speak of. Is there anything other than anecdotal guidance on this matter?
  14. I agree, however going down the list of all the reasons a set-aside would not be appropriate, in my particular scenario the reason given for not requesting the waiver was, as the CO stated, they simply were not aware of the option. All the rational reasons for electing not to request a waiver have been ruled out through market research. Simply not wanting to in this case, doesn't seem implied by any determination covered in the FAR as a sound business decision. I feel there should be something more substantial to concur with than them not wanting to, when all the leg work has been done to ensure the option was viable (even communicating with the SBA in advance). In the end the decision is the CO's to make, so I guess I'm basically beating a dead horse. Again, I appreciate the insight.
  15. Correct, the statute does not expressly require the CO to request a waiver. Understanding however the intent of the law here, being to maximize small business opportunity for set-aside, and knowing (when all the market research supports the finding that no small business manufacturers exist) the only means to ensure a set-aside opportunity is to request the individual waiver; I'm at a loss trying to comprehend why the CO would continue to go unrestricted and elected to cite his discretion under the FAR, when the opportunity clearly did exist. I feel this was a missed opportunity and the CO (actually stated he hadn't seen the opportunity prior to it being brought to his attention), when made aware of it, stubbornly dug in his heels and said I'm not going to request a waiver and the FAR say's I don't have to. I guess I just expected that the intent of the law coupled with the VA's commitment to small business and meeting it's socioeconomic goals, would be motivation enough. Anyway, thanks for your reply I appreciate the insight. But in general, does the statute supersede the FAR? If the statute, in this case, had said shall request the waiver while the FAR at the same time said may request the waiver, would the CO still be justified to decline in this instance?
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