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thomas.rutherford

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About thomas.rutherford

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  1. J&A Certification

    5153.9005 -- Format for a Justification and Approval, section 13. (Fair and Reasonable Cost Determination) states: "I hereby determine that the anticipated cost to the Government for this contract action will be fair and reasonable." Also, the Contracting Officer is required to purchase supplies, "... from responsible sources at fair and reasonable prices." FAR 15.402. My problem with the AFARS J&A format is that how can we determine before soliciting and recieving proposals that the price will be fair and reasonable. Since the Contracting Officer is required to award at a Fair and Reasonable Price, isn't the justification a waste of paper and toner to print, since to do otherwise would be a violation of FAR 15.402. The Contracting Officer (at least here) always prepares a Memo determining the price fair and reasonable, so my big question, why have this statement in the J&A? Also of interest is that the following item in the J&A format # 14 is the "Contracting Officers Certification". If we have a Contracting Officer's Certification at 14, who signs the certification at 13? (current practice is the Contracting Officer according to the excuse "that is just the way we always do it") That means the contracting officer signs twice on the same page. Since the statement at #13 is "ANTICIPATED cost to the Government" would it be more realistic to have this statement signed by pricing office or engineer who creates an independent estimate (parametric or otherwise)? Because it is "anticipated" not actual... I know sometimes the regulation is a matter of "just do it", but can anyone explain why certification 13 is beneficial?
  2. HUBZone vs. SB

    Interesting note, on FAR 19.1305(a), maybe the CO has the room to "deviate" without really having to deviate. It says that a, "Contracting Officer shall consider..." (note, not "shall set-aside) If the CO documented that they considered the HUBZone, but determined it wasn't appropriate because of X. FAR 19.1305( sets the minimum criteria for doing a HUBZone set-aside, "To set aside an acquisition for competition restricted" really means, "before doing a set aside, be sure the following minimum criteria are met". Seriously, Thomas
  3. HUBZone vs. SB

    No one yet has really addressed my point except to denegrate it. Only the GAO has ruled for the strict application of HUBZone Set-Aside that you proposed, and the Justice Department has argued that it has the authority to countermand the GOA decision, see articles in next paragraph. The Court of Federal Claims apparently agrees with the GOA but the Senate attempted to clarify the equality of the various SBA program in FY10 Appropriations (but it got lost in Conference). The OMB, Justice Department, and SBA all appear to agree with my position. http://www.govexec.com/dailyfed/0310/030810rb1.htm http://www.govexec.com/story_page.cfm?file...09/071309e1.htm Until the Senate gets their language thoough Conference Committee, it seems that there is a disagreement between the Court of Federal Claims and the Executive Branch. My point is that 19.1305(a) lists the following heirarchy: HUBZone Set-Aside HUBZone Sole Source Small Business Set Asides Given FAR 19.1305(a) How could a Small Business EVER be higher priority than any HUBZone Sole Source? However, FAR 19.1306(a)(3) offers an apparently contradictory Priority: Prior Performing Small Business HUBZone Sole Source Note, Now a Small Business can be higher priority than a HUBZone Sole Source, the only thing that changed is prior performance. So, building this scenario by applying FAR 19.13 as a whole, the combined position could be: Prior Performing Small Business HUBZone Set Aside HUBZone Sole Source SBSA or.... HUBZone Set Aside Prior Performing Small business HUB Zone Sole Source SBSA The SBA, OMB, Justice Department, some Senators, and I appear to agree with someting similar to the first Option. The Court of Federal Claims, GAO, Vern, Don, etc appear to agree with the Second Option. This really seems a case of which branch do we work for... Executive... Who passes the laws... Legislative... Who interprets them... Judicial... When they disagree then what??? This is much like 1984.... It appears that even Inner Party (elected officials) can't agree. This Outer Party member is guilty of the Thought Crime of not exercising Double Think. I guess I am a candidate for the the Ministry of Love so I can confess my crimes and "believe the truth" and beg the merciful punishment of Big Brother. Maintaining a Sense of Humor, Thomas
  4. HUBZone vs. SB

    Yes, My agency small business rep has reviewed this procedure and actually approves/condones these "non-HUBZone" exceptions. This might be because we exceed the goal every year even with using this exception.
  5. HUBZone vs. SB

    Language should convey the idea with a certain degree of precision. To lift a single point out of the FAR without reading the whole context of the various small programs and set-asides could lead to mistakes. Although a set-aside and a sole-source HUBZone are "different", they do deal with the same underlying SBA program. So dispite your dismissive statements to the contrary about language not being precise, I do think the PCO could have a valid case when reviewing the whole regulatory context.
  6. HUBZone Prefrences Unconstitutional, Too

    It is quite an interesting read to read the court decision. While denying Rothe "injunctive relief", it still determines 10 USC 2323 unconstitutional. 10 USC 2323 containes the 5% mandated goal that serves as the basis for most of DoD's specific efforts, i.e. "if we don't meet the goal willingly, SBA will impose the 10% premium". The court decision specifically states: As currently written, Congress expected that the five percent goal would apply to five distinct entities (SOBs, historically Blackcolleges and universities, minority institutions, Hispanic-serving institutions, and "qualified HUBZone small business concerns"). The Governrnent's request here would have the Court direct the entire five percent goal to "qualified HUBZone small business conceros." It is far from certain that this result is what Congress intended. In addition, this Court is obligated to follow the Federal Circuit's Judgment and Mandate, and the Federal Circuit made no exclusions for historically Black colleges and universities, minority institutions, Hispanic-serving institutions, or "qualified HUBZlme small business concerns." ..... declaring that Section 1207 as enacted in 2006 (i.e., the Cuttent 10 U.S.C. ? 2323) is facially unconstitutional, and (3) enjoining application of the current 10 U.S.C. ? 2323. My read of the court decision is that we no longer have a mandated goal. If these aren't mandatory any more then as long as DoD doesn't specifically discriminate, it can award any percentage of these contracts. The court did leave the option for 10 USC 2323 to come back, but only if Congress has "a 'strong basis in evidence' ... that DOD (is) a passive participant in racial discrimination..." This seems like a triumph for Civil Rights. It seems that several generations of work on equality has finally paid off. We all have equal opportunity to be poor (pesimist) while faced with a seemingly arbitrary soverign process. The only way I could really fault the court decision is that while seemingly solving the problem, it does not address the underlying programs, leaving the issue unresolved, "Is a preference for any spedific group a violation of the equal protection clause of the 14th Amendment?" or "only if DoD has a specific percentage."
  7. HUBZone vs. SB

    I still think you are over simplifying the language by making this about FAR 19.1305 vs. 19.1306. I believe it is entirely correct to look at the two concurrently in establishing precedence. Following the precedence in 19.1305(a) makes the priority (1. HUBZone set-aside, 2. HUBZone Sole-Source, 3. Small Business Set Aside) but FAR 19.1306(a)(3) makes prior performance by a "non-HUBZone small business" a higher priority than #2 the "HUBZone Sole-Source". Therefore, prior performance is higher than #2, and #1 HUBZone set-aside is also higher than #2. I.e. read together ?prior non-HUBZone performance? could be at least equal to HUBZone set-aside. I know, I know, "shall set aside". However, even that isn't absolute if you look at FAR19.1305© between micro and simplified it is "may" not "shall". I think as written the FAR has enough ambiguity that each contracting officer would have to determine whether they are equal or not while trying to decipher regulatory intent.
  8. HUBZone vs. SB

    I think I have hit on what the KO is probably using as justification for not setting aside the procurement, FAR 19.1306(a)(3) i.e. may set asside if, "the requirement is not currently being performed by a non-HUBZone small business concern;". While this applies only to "Sole Source" HUBZone set asides, there is a similar restriction at 19.1304(d) against changing to a HUBZone if it is currently being procured from an 8(a). There is also an allowance at FAR 19.1305( that requires a "reasonable expectation" that "Award will be made at a fair market price" before setting aside for "competition restricted to HUBZone". These exceptions at FAR19.1304 - 19.1306 could provide some basis for bypassing the HUBZone Set-Aside if proper market research was done, and or you currently had a "Non-HUBZone small business concern" performing the work.
  9. Basic Agreement in lieu of IDIQ

    I didn't see the need to have mandatory performance since I have several suppliers interested. Attempting to create a mandatory performance option was a way to answer problems that some of the other fingers in the pie seemed to see with a BA. If I get rid of mandatory performance, I could then dispense with most of the narative I created and just have a provision for renewing the BOA annually and collect more Past Performance data. I agree than a multi-award IDIQ is probably the ideal, but that approach seems to get bogged down in details like having the new Technical Data revisions done on every item, even though we don't plan on ordering it right now. I keep insisting that since we are doing multi-award, any changes to TDP can be done when we compete individual orders. I think I can reslove that if I push hard enough. Where I think I will get jammed up on the Multi-Award IDIQ is that for the first DO, I don't have a way to guarantee each vendor a minimum quantity without making the quantity so small that the unit price becomes less economical. If I am not giving a minimum quantity then that would be a Requirements contract, so I would then have a Multi-award Requirements Contract, not exactly right either.
  10. HUBZone vs. SB

    I enjoyed the article. Oh the infamous Conference Committee! It allows politicians to take a public vote for a measure that is needed to pander to a constituency (in this case disabled veterans), then kill it quietly never to be brought up again. If you don't see the senators or congressmen who proposed it immediately bring it back as a new law or ammendment they really didn't want it anyway and were counting on the conference committee to kill it. I didn't really see how that addressed the original issue, it only created parity between "HUBZone, 8(a), and Service Disabled". I didn't see from the article how (even if passed) it would trump a KO's decision to use a Total Small Business Set Asside (SBSA) to make it HUBZone, 8(a), etc. Having a couple of HUBZones bid, wouldn't work in my case, unless one of them was selected for award. If we selected any other small business type for award then all future requirements would be total SBSA again, not HUBZone.
  11. Basic Agreement in lieu of IDIQ

    This is for military Medium Caliber Ammunition, not commercial, this type of ammo is illegal for civilian ownership. Quantity is probably under 5M annually.
  12. contractor seeking advice on contract type

    I am "new" having started December 2005. My command was pretty good at moving me around so I got lots of different experience. My experience with CO's has been a few good and mostly really bad. The good ones knew the FAR and DFARS applied them, showed me how to apply them, and when I was done building a solicitation, modification, or award, I was very sure I was correct before I sent it for review (I was painfully slow but am much faster now). I have had several CO's who don't know how to use any of the contracting software (PADDS,PD2, etc) and their advice on building a requirement is to "find the last contract we had for this item and copy it". Most of the "bad" CO's were highschool graduates that got grandfathered, but I have seen college grads CO's that were the same. The bad ones couldn't determine an acquisition strategy, run a acquisition planning meeting, or have any sense of reason. For example I was given a Performance Spec for a new system that had gross errors in spelling, grammar, and even contradicted itself on technical requirements. I was told not to question it and just put it in the Solicitation. I almost got put through the wringer because I decided to ask the Program Engineer about it in a meeting. He said he knew there was problems with it and that is why he wanted us to help him find the problems since his team had seen it so many times they couldn't see the mistakes any more. I was allowed to make the changes, but the PCO took all the work away and gave me the next job. As "punishment" I spent 6 months doing the same $600 commercial buy over and over again because the PCO couldn't figure out the best method, I wanted to just get a few oral quotes and do a micro purchase, but we ended up doing a formal RFP and DFAS billing. Vern is right, the sandards need to be revised. The old had PCO's that encumber good possitions while some of my more briliant peers have no upward mobility is very demoralizing. I don't think education is per-se the ticket either. I have known people to skate through a degree program and get almost nothing out of it, and I have known high school grads that have better reasoning ability than most accounting, business, or economics majors. In working on my masters, I have people look down on my Bachelors' Degree, but honestly, DeVry's Bachelors Degree courses were much tougher than the Elite Midwestern Catholic College I started my Masters at. I soon figured out that the Army just wanted paper anyway. I am at an online self paced program now, with much less busy work and a faster completion. I learned more about real business by working than I ever learned in college.
  13. HUBZone vs. SB

    I had a similar dilemma when I started contracting in 2006. My PCO did explain it a little differently, and our Legal office backed her up. The PCO is to ensure a requirement filled in a way that is in the "best interest of the government". To specifically exclude a currently performing qualified source would not take adavntage of his experience, equipment, or specialized tooling and processes (I am in a parts and equipment command). However, every time something came up that hadn't been procured in the last 5 years it began to be considered fair game even if we had a past producer, since the specialized tooling and experience was likely to be rusty (on both counts). I share your frustration with utilizing the "shall" sources. I was very frustrated that my command never met their Service Disable Veteran or Veteran owned goals. The problem is Hub-Zone, 8(a), etc all come before veterans, so any progress towards a Veteran Owned goal was usually accidental, they won on a "Total Small business Set Asside". Thomas
  14. I recently joined a new command and the assumptions here seem to be blocking a clean implementation of an IDIQ or requirements Contract. 1. I must have a minimum guaranteed quantity for each item and/or each vendor if multi-award. 2. I must have a current TDP even if there is no immediate quantity for an item. 3. I must have 5 year pricing even if I can't get good estimates. 4. I must use a C contract (not D) with Options to implement and IDIQ and create new CLINS with a P mod for each Ordering Period. 5. Bureau of Labor Statistics Industry Indexes are not accurate enough to adjust IDIQ's. 5. We can't include any items unless there is high probablility of a need. 6. Only established producers are part of the "industrial base" and only current producers can safely produce "main product lines". There are several items in the same FSC. The intent is to create a Contractual vehicle for low volume, sporadic demand across several items that might be difficult to buy alone. This also could provide an opportunity to give some work to the Small Cal suppliers that want into Medium Cal work but are considered too "high risk" for our main product lines. I don't want to do a Requirements Contract and end up with a "sole source" supplier for several years. I have been trying to create an out of the box solution that is still FAR compliant. My solution is to create a Solicitation for a Basic Agreement (BA or BOA) (FAR 16.7) and to compete future requirements among BA holders. My PCO has given me a little rope to explore other options. My legal rep has said using a BA is an "interesting" approach but that it might be interpreted as a IDIQ, which could cause GAO problems since I am calling it someting else (see language below). Legal has suggested using Wifcon Forums. My experience two other commands with BPA's and BOA pools is what brought this to mind since it seemed to allow the flexibility to get stuff done quick, but still have somewhat recent past performance and other criteria to evaluate. Methodology: I am considering a BPA/BOA type instrument with Multiple Awards. And including as many items as possible to be "representative of the group" but that would allow competition of individual requirements among BPA/BOA/Basic Agreement holders. However, the logistics community is concerned that we cannot require performance of small quantities like we can with an IDIQ. I have proposed language for the solicitation that would require performance and allow annual addition of vendors and re-evaluation of Past Performance, so that I don't end up locking vendors out of a BPA pool for 5 years. In Addition to clauses that would be required for production of my items, I propose language to create manditory performance and cover issues such and how to price, how to include past performance, how to let new vendors in, etc. - Begin propose language- Past performance evaluations will be conducted annually in any year that orders will be placed and input for past performance may be solicited with the first order of any period under the BOA. Past performance will be used to trade off each order under this BOA based on the last annual evaluation. If there has been interest expressed by new vendors in the preceding year, the solicitation may be re-opened for addition of additional vendors during any solicitation for Annual Past Performance Data. Past Performance evaluations will be conducted in accordance with the criteria found in section L. Initial BOA Pricing submitted under the initial solicitation will be used for placing orders within the 60 days of solicitation close. Pricing for subsequent deliveries will be made on the basis of competition among all vendors receiving a BOA as a result of this solicitation. Vendors will have a minimum of 15 days to respond to any solicitation for price of individual orders and 30 days if past performance is included. When no offers are received on a solicitation to compete an individual order, the government may issue a unilateral order to a vendor in the BOA pool determined by the Contracting Officer to represent the best value to the Government. The unilateral order will be issued for an Interim Adjusted Price equal to Initial BOA price x the index rate for the Industry NAICS + 5% and funds obligated for 10% over the Adjusted Interim Price. For purposes of calculating this Index Rate the data for NAICS Code 332992 "Small Arms Ammunition Manufacturing (i.e. 30mm or less)" contained in the Bureau of Labor Statistics (BLS) website http://www.bls.gov/data/ The product index to be used will be that of 3329923329920 for Small Arms Ammunition or if that is discontinued the index for the entire industry 332992332992- Small Arms Ammunition Manufacturing. The index rate shall be calculated by dividing the current proposed index value (or final index value if calculating the final price below) by the index value for the month of BOA award and rounding up to the nearest three decimal places. The BLS Proposed index for the month most closely matching the date of order will be used, and a Final Adjusted Price will be established 8 months after the unilateral order to reflect the final BLS index value for the month the order was placed. The vendor who receives the unilateral order may submit a price proposal that, if determined reasonable, will become the new price with no further need to adjust the price based on index data. After Adjustment to the Final Adjusted Price, the Governments final obligation will equal BOA Price x NAICS Index Rate + 5%. The remaining 10% in the above paragraph is to cover variations in the BLS index from the time the unilateral order is placed until the final BLS index data for the month the order is placed becomes available. If funds remain available, these may be de-obligated by unilateral modification by the Government or used to increase the quantity ordered based on a bilateral agreement between the Government and Contractor." End Proposed Language Does any one see any contractual or legal problems with this approach? Thanks, Thomas
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