uva383

Don, I agree that web based traing is ineffective for most modules as I have observed many of my peers just click through the screens to just get through the material or worse, just print the modules into .pdfs and do controlled searches for the answers to pass the exams at the end. I suppose my more basic question that I was trying to ask in my previous post is... Obviously something has changed from the way that most of my senior seasoned (15+ years of experience) 1102s learned contracting and my peers at the journeyman (5-15 years of experience and the entry level folks (1-5 years). The seasoned folks I talk to often talk about how training was more individualized, that it was almost agency specific and although there was DAU or the AF service level training, when you got back to your agency you got the "tribal" position on the material you just learned. They (the seasoned folks) have said that the shift really occurred in the late 90s when the 1102 workforce was drastically cut, before those cuts, how was training handled and is it possible to go back to that format? I don't think learning at the college level has changed, although I do think that we have really struggle to teach the ability to think. Would you agree that the methods of training today's workforce are different than it was 15-20 years ago, and are these methods ineffective and should we attempt to return to older formats? Or has the issue of an largely poorly trained workforce always been there and you just had more knowledgable individuals that could carry the weight and mask the issue(s)? I can only speak anecdotally on the subject of the differences because I was trained in the current DAU format but based on the way that my more seasoned mentors talk about how they were brought up, I can see a difference between then and now. I imagine that if we could get to a format where training is specialized almost from the very beginning based on types of procurements (systems, operations, services) rather than what feels like the lowest common denominator, that would help. And then maybe have the 1102 choose the format and then have to be tested and certified at different levels for the types of procurements, similar to what you were describing, that could help.

Don, I like the idea of it, but how would you deal with that in today's workforce. I can only speak to my experience within DOD, but I doubt that it is different in the civilian world, given that some of my peers came from that world, I just have never worked in it so I can't speak to it directly. That being said... I find that each service, and often each MAJCOM within the service views things differently and therefore you can ask folks in each different group the same question and get different responses. A good example of this is what satisfies the requirement of the "determination" required by FAR 17.207(d). I've been at several agencies, and talked to and witnessed multiple KOs state that this determination means a D&F, as required by FAR 1.704, when pressed on the issue, as I learned early on in my career after reading one of Vern's posts on that very subject, the ultimate answer for why do you think that a formal D&F is required is... because that's how we do it here or that's what our policy office says. IMO no amount of training, or no style of training will be able to overcome the agency thats how we do it... especially if the application at the local level is incorrect because someone that goes to training and learns all these great things comes back is either discouraged because they hear "I don't care how DAU taught you... this is how we do it" or they start first at their agency, and then go to training, and can tell that there are differences in what is being taught, and get cross threaded because they cannot distinguish between these differences. I've always been curious... there seems to be quite a focus on the lack of training of today's workforce what's changed from how you learned contracting, and what would it take to go back to that model?

Vern, My office uses 1101s in roles such as Cost/price, policy, COR coordination, system admins for wawf, EDA, sps, etc. and has hired a few folks that have degrees and have been involved in contracting either on the govt side or KTR but aren't currently qualified for 1102 usually because they lack the 24 business credits and are currently or quickly planning on enrolling in an institution of higher learning to become fully qualified 1102s.

Desparado, why do you think the drafter of a contract is protected? Contra proferentem, a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. Based on this doctrine, the Government is actually harmed, with the exception of those clauses where courts have ruled the Christian doctrine applies, if a term or clause is ambiguous or missing from a contract. This is why courts generally rule against the Government when Contracting Officers try to invoke clauses that are missing from the contract, with the exception of those clauses that fall under the Christian doctrine.

Desparado, I agree that it could cause an increase in bid protests because a KO would have consider the terms and conditions of an Offeror's proposal in addition to its technical, non-technical (management, past performance, etc) and cost factors, however I disagree that it would be a nightmare to evaluate. Over the last couple years, I've been fortunate to be involved in a couple competitive commercial software purchases where each vendor put forth its license agreement as part of its proposal and as part of the evaluation the Government had to consider the terms of the software agreement as well as the technical and non-technical factors. It required the KO and technical team to think a great deal and consider items that aren't routine, but overall the procurement was awarded within the agency's standard PALT. Boof, Regarding your comment about congressional laws. Why not just state, as part of the requirement for a valid proposal, that the Offeror must include terms that meet all applicable laws and regulations (no different than a Specialist having to figure out what clauses apply). Also, if the Government entered into an agreement that did not comply with a federal statute, it would have the ability to terminate the contract, just like any private citizen that enters into a contract does, it would need to rely on a court of law or someone appointed by Congress (maybe GAO?) to make the determination that the contract was null and void. Socioeconomic preferences could still be given just like we do now by stating that only companies with whatever preference you're giving are eligible to respond. Regarding gathering data, I fail to see how either having or not having a contract writing system alleviates this requirement and therefore I disagree that its a valid reason that this exercise would not work. I know of many agencies and offices that do not have contract writing systems, does that mean that they are exempt from data reporting requirements? If so, please let me know on what authority the are so I can pass it along to my former coworkers as you would be their hero. Prior to working at the agency I work at now, I worked in one office that used MS word to draft its contracts and I can safely say that we still had about the same amount of data calls as I do in my current office, and my current office uses SPS/PD2 so I don't believe that having a writing system reduces the number of data calls. Either that or the folks at my new office don't effectively use SPS/PD2 to eliminate the need for these data calls that we constantly get.

Pepe, I'm looking at it from the consumer standpoint. DOD would be the consumer (customer) and the supplier (industry) writes the terms of the contract that it is willing to supply. Same thing with mortgages. If every consumer decided that they did not want to enter into terms that were unfavorable, loan originators would not be able to write loans in those terms as consumers would reject them as they are unfavorable. There are many loan originators, and each of them write terms that it is willing to agree to. Some are more lax than others and the consumer decides what contract it wishes to enter into? Why can't the federal government operate the same way? We (the Federal Government) could use its bargaining power just like you say that we have, and rather than dictate the terms and level the playing field, we give Industry an opportunity to provide its terms to us.

I like it. We do this every day when entering into agreements or contracts for things such as mortgages or car loans or purchase orders for home improvements... This sure would cut down on the paper pushing aspect that today's specialists and KOs seem to do. Vern, why don't you think this would be adopted? Couldn't that same data be obtained by congress through reporting of the transaction? Completing an FPDS transaction to report the contract would only take minutes and not all agencies use contract writing systems, and congress still obtains data on that agencies procurements. Boof and Desparado, why don't you like it? Do you both draw up every agreement that you enter into, or do you rely on your decision making ability, critical thinking skills, ability to read, and for those purchases that warrant it, a trusted legal opinion, on whether or not you should enter into those contracts?

I don't believe you've described the primary purpose of the work. In order for it to be classified as an assistance award, the primary purpose of the work or research would be to stimulate the public. Is the work that the center is going to do going to be available to the public or for the good of the public or is the primary purpose for the agency? Its been awhile since I worked in the grant world, but I seem to remember that agencies have to be granted authority to enter into assistance awards and that 26 agencies have been approved to make assistance awards. I would first determine what the purpose of the work your asking the center to do is to determine if it's assistance or an acquisition, and if it's an assistance award, if your agency has assistance authority.

IMO it would be easier, but I can ask folks around my agency of about 80 people ranging from brand new 1102s to folks that have 25-30 years of experience and give you some boots on the ground feedback. I appreciate you taking the time to put this together, I use the rewrite of 52.212-1 tailored to SAP buys that you and Vern put together whenever I have to do sap orders so thank you for that as well.

Don, would it be possible to create something similar to the dpap dfars/pgi split frame view that would show the far, dfars, and pgi in a triple pane view?

the DODGAR states in §22.205 (B ) Fee or profit. Payment of fee or profit is consistent with an activity whose principal purpose is the acquisition of goods and services for the direct benefit or use of the United States Government, rather than an activity whose principal purpose is assistance. Therefore, the grants officer shall use a procurement contract, rather than an assistance instrument, in all cases where: (1) Fee or profit is to be paid to the recipient of the instrument; or (2) The instrument is to be used to carry out a program where fee or profit is necessary to achieving program objectives Since the awarding agency determined that this was appropriate for an assistance award rather than a procurement fee or profit is expressly not allowed at the prime or subcontractor level.

Bob, I couldn't find a GAO case, but I do remember a recent COFC case, Innovation Development Enterprises of America, Inc. v. The United States, No. 11-217 C (Ct. Cl. Jan. 29, 2013) where the Air Force relied on FAR 6.302-1 and 6.302-2 which was misplaced since FAR 6.302-1( b ) forbids reliance on FAR 6.302-1 when 6.302-2 is applicable. Judge Lynn Bush noted that The Court is unaware of any prior attempt to rely on both of these authorities for the same sole source award. If a Contracting Officer is faced with a situation where unusual and compelling circumstances exist, it is impermissible to rely on the only one responsible source provision to justify a sole source award. FAR 6.302-1( b ) "forces the agency to solicit offers from as many sources as is practicable, in situations of unusual and compelling urgency, before resorting to soliciting offers from only a single source, in circumstances which may also present unusual and compelling urgency. The goal is to obtain maximum competition. The Court held that the Air Force’s actions constituted a significant violation of CICA and that IDEA was prejudiced by the sole-source contract.

Anonco, According to the DOD FMR, Section 060201. 1. Immediate Subordinate Account: Major Construction. Includes construction projects authorized under Title 10 United States Code (U.S.C.), section 2802 for the purposes of erection, installation, or assembly of a new facility; the addition, expansion, extension, alteration, conversion, or replacement of an existing facility; or the relocation of a facility from one installation to another. Includes equipment installed and made a part of such facilities, and related site preparation, demolition, excavation, filling and landscaping, or other land improvements. Based on this, I believe that demolition can be done using MILCON funds as it falls within the definition of major construction according to the FMR. However if you still have questions, rather than ask the GAO Comptroller General for an opinion of funds use, since you are within DOD, my understanding is you would request the opinion from the DOD Comptroller at DFAS.

Don, I think that this website is essence the perfect reference guide. I'm amazed at the wealth of knowledge to be mined in this forum. Every day I learn something new reading the ideas and discussions that are posted here. While the information discussed is usually at a higher level than some entry level folks may grasp, I think that the community does not shy away from answering or explaining questions when someone new to contracting has a problem or asks questions attempts to better understand a thread.

Don, Question, in a response to a post I made earlier you provided the following response; This topic came up again in my office as I am attempting to exercise the 52.217-8 clause. I was told that I could not use the -8 clause unless, in accordance with FAR 37.111, it is being used to extend the term of the contract due to a delay beyond the circumstances of the contracting office. I was provided GAO Decision B-401472, Major Contracting Services, with a note that stated that GAO determined that the -8 clause could only be used if the delay was beyond the control of the contracting office and met the requirements of Part 6 and 17.207. I was also told that my reasoning for using the -8 clause, while it met the requirements of Part 6 and 17.207, is not due to a delay outside the control of the contracting office, and therefore I cannot use that authority, according to this GAO decision. I see that there is a conflict between the GAO decision and Griffin Services, Inc., ASBCA 52280. In Griffin Services, Inc., ASBCA 52280, the ASBCA specifically states that the -8 clause is not limited to those circumstances described in 37.111. I've spent several days searching to see if the legal precedence set forth by the ASBCA's ruling in 52280 was ever overturned or questioned and I cannot find any. When I countered with the ASBCA case, I was told that the GAO decision is more recent, and therefore provides legal precedence over the ASBCA's rationale that the use of the -8 clause is not limited to those circumstances listed in 37.111. I've also looked for DPAP and DASN policies where it is specifically stated that the -8 clause can only be used because of bid protests or mistakes and cannot find any policies where the use of the -8 clause is prohibited to be used in this manner so I appear to be at an impasse. I've asked our office of counsel to weigh in on this, but wanted to ask you, as well as the other members in this forum.

I would say yes. Exercising the -8 clause to extend the POP for up to 6 months and then exercising the -9 clause seems to me to be an abuse of the -8 clause. To me the cases where the -8 clause should be used are rare, however I see more and more the -8 clause being used to string along a contract because either or both the contracting office or the program office fail to properly plan for a recompete, and then rather than face the consequeneces of failing to plan, the KO must string the contract along using any means necessary. However I have learned many things from this forum, especially from you (Don), so I ask you the same question, do you think the inspectors and my interpretation of the regulations are correct?

I'm in a DOD office and we just went through this during an inspection. The auditors stated that we were abusing the -8 clause doing what ipod is proposing. According to our inspectors, the -8 clause can only be used in circumstances outlined in FAR 37.111, to prevent short term POs due to issues outside of the contracting office's control. Exercising an option timely is entirely within the contracting office's control, therefore using the -8 and then -9 clause to keep a contract alive longer than the normal terms of the option are unallowable.

I believe it depends. If the BPA is established for the purchase of commerical items, then it must include 52.212-4 in the agreement which states in paragraph ©, Changes in the terms and conditions of this contract may be made only by written agreement of the parties which means bilateral as parties is plural. If the BPA is established for the purchase of noncommercial items, then it would include 52.213-4 which includes many clause as a part of the clause, and any other clause that both parties agree in advance apply to calls placed against the BPA. Those clauses would govern both the agreement and any call placed against it, and it would depend on what unilateral rights the Gov't has under those clauses to determine whether or not any change to the terms and conditions could be done unilaterally.

I assume this is a CPFF term task order for services based on you citing the seaport-e IDIQ level of effort clause? If so, IAW FAR 52.243-2 Alt I(a)(2) which was included in base IDIQ, the KO can make unilateral changes to the time of performance (ie days of the week). Paragraph c. states that the contractor must request adjustment in accordance with para b within 30 days from the date of receipt of the written order.