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Everything posted by uva383

  1. So I’ve been following this thread for some time and no one seems to have raised this aspect of potential unintended consequences. According to the DPAP memo, a company which is habitually late in complying with the 5 day sweep policy is exhibiting signs of a defective estimating system and may be grounds for review. many of the top DOD contractors have approved estimating systems, and in my experience, the presence of such a system usually positively affects management ratings in competitive proposals as well as cost realism adjustments. It seems as though a large contractor is stuck between the risk of missing something in its sweep and having to defend against a defective pricing claim, or possibly the loss of confidence in its estimating system which can be a competitive advantage in a competitive award. Given that many of these same companies have products and services they sole source to various DOD agencies while competing for other lines of business, this policy appears to be quite heavy handed to me. It’s almost like DPAP is threatening give me a certificate in five days or face possible downgrade of one of your business systems and thereby potentially lose future business.
  2. uva383

    Bid Protests: GAO or the Courts

    I would prefer to keep all three venues, but narrow the scope of what can be protested at each venue. I would also limit the number of supplemental protests that can be filed as its been my experience that protesters often file on one issue, and then through the use of supplemental protests either continue to file additional claims, no matter how outlandish with the hopes that the agency will relent and just take corrective action rather than continue to respond to additional supplemental protests. I would propose that for matters relating to the analysis of proposals or if an Offeror disagreed with how the agency handled its proposal individually, that it should be limited to protesting only to the agency. For matters where the agency was bias between multiple Offerors, GAO should be the venue, and for matters relating the agency's interpretation of statues, the COFC.
  3. In a multiple award idiq contract, is compliance with the vets 4212 reporting requirements of FAR 52.222-38 done at the idiq level at time of award and flow down to all orders or would an offeror need to represent in each order. Also would the PCO need to verify compliance with the VETS reporting prior to awarding each order?
  4. uva383

    CPFF LOE Calculations

    Does your contract have a level of effort (LOE) clause? Typically CPFF term type contracts have a clause that specifies how the fixed fee is handled when the full LOE is not delivered. If you don't have an LOE clause, how was the fee to be invoiced l? Based on a flat rate per hour delivered? As a percentage of the invoice? I would suggest you contact your PCO to determine what to do if your full LOE isn't going to be delivered.
  5. uva383

    FAR Case 2016-005

    Matthew, Thank you for providing that information. Vern, I have reviewed all 8 comments currently present. I completely agree with the issue that this FAR rule attempts to address, KOs are risk adverse and do not communicate with Industry in an effective manner, nor do they know the rules when engaging with Industry prior to the issuance of an RFP. That being said, I completely disagree that we need an amendment to the FAR to address this issue, as Mr. Nash and you point out, many of my fellow KOs and Contract Specialists are unaware of the guidance that has already been put out which addresses and resolves many of the things that Industry states we already should be doing. Additionally, these same folks are unaware of the guidance already contained in FAR Parts 1, 10 and 15 regarding this subject and I don't see where clarifying information needs to be provided because it doesn't solve the underlying problem. This discussion reminds me of a situation I once experienced where my CCO wanted me to have one of our attorneys present in the room when I was conducting 1v1 market research sessions with potential 8a vendors for in depth discussions regarding Capability Statements received in response to an RFI I released in FBO to ensure that the same questions were asked to each potential vendor in case an angry vendor decided to protest should they should have selected and allege favoritism. I provided copies of the OPFF Mythbusters memo, and tried to explain to my Chief that I did not need to ask the same questions, and that asking the same list of questions to each vendor was of no help, as we already did that as part of the RFI. Now the Program Office wanted to discuss specifics contained within the Capability Statements and that asking the same set of questions to each vendor may in fact lead to the very protest that the Chief was afraid of as it could result in one vendor's trade secrets being disclosed to a competitor. I do not see where the proposed amendment would address or solve the problem in this situation, which is the lack of understanding and fear surrounding market research and engaging with Industry as it seems that most KOs are so afraid of a potential protest that we do the minimum amount necessary to check a box, and move onto the next step. IMO the best solution to the problem is to state what types "exchanges of information" should not occur, or better define what the line is when these "exchanges of information" between Gov't and Industry begin to give one member of Industry a competitive advantage as this appears to be the underlying fear that keeps KOs and Specialists from engaging with Industry and its the lack of understanding when the conversation shifts from one of "market research" to where a potential vendor is now specifically guiding the development of the requirement in a manner that gives them a potential competitive advantage and when the FAR states that the information needs to be shared with all potential vendors. I do not believe that this needs to be a rule, but rather a policy memo that is published by OFPP and then passed along through by each Agency. I also believe that KOs should be reminded that the FAR specifically states at 1.102-2(c)(3) that all contractors and prospective contracts need to be treated fairly, but not equally. All too often I hear you have to treat everyone equally, to which I constantly remind folks, the FAR does not say that, it says fair, but fair is not equal.
  6. uva383

    FAR Case 2016-005

    Vern, No. I tried to look in regulations.gov at any comments that have been posted but all I can see is that it looks like one comment was received and I've not been able to figure out how to view it. Admittedly it could be operator error that is preventing me from reviewing the comment. In the past the only way I've been able to figure out how to read comments associated with a rule is to wait until the final rule has been published to review any comments received.
  7. uva383

    FAR Case 2016-005

    Oh boy... a rule to say it's ok to engage with industry... it's stuff like this that makes me wonder what really goes on in those sessions and who thinks we need a rule for everything or what agency said it wasn't ok to contact industry. I thought the OFPP myth buster memos settled that years ago.
  8. Don, Question as I'm using your matrix to review a solicitation one of my specialists put together and I think I may have found an error but am not 100% sure because both your matrix and the DON commercial item matrix appear to have the same issue. Your matrix states that 252.216-7006 is not authorized for Commercial Items (CI), but DFARS 216.506(a) states to use this clause in solicitations and contracts lieu of FAR 52.216-18. According to FAR 12.301(e)(1), the clauses prescribed in 16.506 (of which 52.216-18 is one) are authorized for CI ID/IQ contracts. So based on the prescription in DFARS 216.506(a) to use 252.216-7006 in lieu of 52.216-18, wouldn't 252.216-7006 be authorized for use in CIs?
  9. I have a related question to this topic. Background: Prime contract ended in June of 16. Prime contract contains Jun 2013 version of 52.216-7, allowable cost and payment. Prime submits notice to the Govt of excess current funds available for deobligation in the amount of 100k after its retainer for rate settlements. Government agrees issues bilateral modification to deobligate agreed upon excess funds a month later and obligates funds under follow-on effort. After FY, prime contacts PCO and states that they made a mistake in their excess funds calculation as they received an invoice from one of their CPFF SubKtrs for $15k for travel reimbursement that was not included in the primes original spend plan but was approved travel that occurred during the final year of the contract. Prime also states during conversation with PCO that they [the Prime] have not settled this subcontract with the SubKTR at this time. Question: Under the allowable cost and payment clause, is the government required to provide an increment of funds (either prior year (if available) or current year funds) as the $15k unexpected travel exceeds the retainer for rate adjustments, or should the Govt wait until DCAA and DCMA complete contract closeout and the contractor submits its final invoice before providing this increment in case there are other costs that are in excess of the retainer that arise during contract audit and settlement?
  10. uva383

    Stop the Race to the Bottom

    Not sure about all the particulars of your requirement or not so I can't say for certain if the provision 52.222-46 would apply, but if it didn't, you may want to still fold some of that verbiage into a management plan evaluation to determine if the offeror's compensation program reflects a clear understanding of the requirements and then in execution hold the KTR to delivering the caliber of personnel that you're looking for.
  11. uva383

    Should Training Classes Be Required?

    Don, under your performance format, how would you account for the different learning styles for different material. Take a class like 170 or 270, very math intensive. Would a student that chose the web based instruction for material like contract law or acquisition planning be able to switch to classroom for a math based class? Or would they be locked into web based instruction for the entire certification? Under this format how would you tie performance and successful or unsuccessful outcomes to the employee and the instructor? Would you recommend termination of an employee that cannot pass the classes? Also, given the current shortage of instruction in the classroom setting as demonstrated by reduced class offerings and long waitlists, how would your new format allow for scheduling issues or having to go outside of the DAU curriculum to obtain equivalency for some limited classes?
  12. uva383

    Should Training Classes Be Required?

    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.
  13. uva383

    Should Training Classes Be Required?

    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?
  14. uva383

    What do GS-1101s do?

    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.
  15. uva383


    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.
  16. uva383


    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.
  17. uva383


    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.
  18. uva383


    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?
  19. uva383

    Grant or Contract

    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.
  20. uva383

    Consolidated FAR/DFARS/DFARS PGI/DoD Class Deviations

    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.
  21. uva383

    Consolidated FAR/DFARS/DFARS PGI/DoD Class Deviations

    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?
  22. 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.
  23. 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.
  24. uva383

    Fiscal Law - "Purpose" question

    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.
  25. uva383

    Contracting Officer's Reference Guide

    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.