DingoesAteMyBaby

Perhaps humerous anecdotes related to our profession would be better. I was always an odd child, but I do recall always rather enjoying at the age of 9 years old the anecdotes appearing in the Reader's Digest "Humor in Uniform" section, which occurred on a rotating basis every other month. That being said, my sense of humor is terrible and only slighlty better than sophomoric sometimes, and at other times is only tired and absurd. My best joke for an entire decade was about an octopus and a set of bagpipes, and reflecting upon it now with great regret, I would just as soon forget that I had ever told the joke.

I would look at this just a little differently. I would say that the COR probably can reject a delivered product or service; this is assuming that the COR delegation letter explicitly states that inspection / acceptance / rejection have been delegated to the COR. However: - In most cases, it is a very good idea for the COR to work with the Contracting Officer to make sure that the reason for the rejection is valid and adequately descriptive of how the delivered product / service does not meet the requirements of the contract. But normally I would expect that the rejection can come from the COR with the KO on copy of the notice to the Contractor. - In many cases, an invalid rejection could be cause for some dispute later, or could lead to increased costs to the Government, so the COR certainly needs to involve the KO every step along the way. - In extreme cases, some fact-finding may need to take place to determine if reperformance of the contract requirement is possible; it may be necessary to move toward some form of termination because timelineness of the deliverable is so absolutely critical. - In other cases, there may also be times when minor non-conformances may be waived per FAR Part 46 by the Contracting Officer, and the COR may even be overriden by the KO. Things can get dicey and management may get involved.

Concur 110% with Vern. The double-edged sword. Jokes are usually at the expense of something, which makes them funny; but at the same time, one person's joke can be another person's tragedy.

Well, in the NOAA regional acquisition office in Seattle there was a funny little picture of a boat named the "Miss Appropriations" which was hung above the mail area. It was funny until one of the purchasing agents in the office bought a Boston Whaler with assett forfeiture funds for the purpose of undercover law enforcement work; the boat was largely misused for personal excursions rather than fill its intended role. It was later excessed, and, well might take a FOIA request to explain the disposition. Anyway, after the news article came out, the "Miss Appropriations" picture promptly disappeared from the mail area. http://seattletimes.com/html/localnews/2017537782_noaaboat18m.html True story. Dark humor. The procurement was not actually funny or acceptable in any way.

I have written this into competitive RFPs previously. I have also heard the frustration from industry that goes along with that. Some Contracting Officers are adamant that regardless of your accounting methodology in order to conform to the requirements of the contract the offeror must propose this as an overhead position. This is usually because the Program Manager's position is expected to be spread across a number of projects, whereas sometimes the Project Manager may be a dedicated 2,080 direct charge to the project if the project warrants such support due to the magnitude. Personally, I think that if the RFP is competitive then that will ensure cost efficiency. However, the Government can require this.

Exactly. I have seen the show cause come after the cure notice failed to result in a reversal of the contractor's imminent repudiation of a material contract requirement. Then the default termination. But this depends on an entire set of facts that need to be considered by an experienced multi-functional acquisition team (i.e. PCO/ACO/KO as applicable, program manager, project manager, legal counsel, often one or more levels of management above the acquisition team members). A termination for default is a very complex road to go down. I highly suggest seeking legal advice from your agency's contracts law division or general counsel and involvement of your management.

Joel, yes that is exactly what I am asking, and completely agree that a unilateral would be unusual. Just validating my initial assumption, but curious as to why the JAG would be at a negotiation unless this is somehow pre-litigative in nature.

Just so I'm clear, when you say change order, do you literally mean a unilateral change as in the FAR definition? Or do you mean negotiation of a bilateral change? My answer applies either way, I am just curious.

It's never a good idea to negotiate from a position of weakness; if you need to have your subcontractors present at negotiations in order to have a full understanding of their proposal or in order to be able to speak to how they proposed on the requirement then it would only serve to weaken your position or to make the negotiation process take longer if you don't bring everyone you need to in order to support negotiations. The bottom line is that unless the Government is going to direct you via unilateral modification, then they will be expecting you to enter into a bilateral agreement. Why would you enter into a bilateral agreement without having fully done what you need to do to protect the company that you own, manage, or represent? And yes, get it in writing. Sometimes the Government does a good job of not being the more reasonable party, and if you are a small business and you end up in a dispute you want to be able to demonstrate that the KO discouraged you from making informed decisions, especially if your firm is a small business. This can lead to establishing superior knowledge on the part of the Government down the road. On the flip side, have a man in the mirror moment and ask yourself if there's some condition that has prompted the KO to bring so many people into the room. It may be worth taking a look at how you and the KO communicate to see if there is some way that you can improve communications and build stronger rapport so that this isn't a problem in the future. Definitely though I would suggest that for every function that the Government brings into the room (e.g. JAG, SME, etc.) that you are matching 1-for-1. While you're at it, dress sharp, and bring facts and confidence into the room.

Just to be clear, when I say inadequate technical assessment, it could be arguable that it is somewhat useful and at times rather useful. But rarely entirely adequate for the intended purpose.

I think it's a great idea, but the best practices reflected in any guidebook are relative to the agency and to the current climate at the agency. For example, in 2004 NOAA had an Acquisition Handbook and Acquisiton Process Guide http://www.easc.noaa.gov/apg/APG_Docs/NOAA%20ACQ%20HANDBOOK%20v%203-1.pdf http://www.easc.noaa.gov/apg/ They were great for what they were at the time, but regimes change, federal procurement policy changes, and after establishing such a voluminous guide it would be difficult to maintain. I believe it takes an entire universe of knowledge resources, knowledge, problem solving, experience, and continual refresh of the aforementioned through development of good habits to be successful in this business. And honestly, in some agencies, there is not much latitude for doing anything other than follow the prescribed policy to the letter.

If you are still taking ideas, I was always interested in Paul C. Light and his notion of the true size of Government. I often wondered why invoicing systems and vouchering systems couldn't 1) require the contractor to enter FTE for "support services" contracts; and 2) why a report from each Department couldn't be required quarterly. We were actually told at one agency back in 2010 to never use the words "support services" in our FPDS descriptions because it could give someone the wrong idea about the nature of the services. This was right around the time that ARRA required the reporting by ARRA recipients of their FTE numbers so we could show how many jobs were "saved or created".

Interesting point. I had a new ship construction source selection where the successful offeror requested a debriefing. It should be noted that upon award we incorporated the technical proposal, discussions, and final proposal revision as a material part of the contract into the award document. So I provided a scripted debriefing that was about an hour and a half long. The VP of the company wrote down notes of all of the strenghts and weaknesses that I presented. At the conclusion of the debriefing the VP, a bit vexed, stated "well, I guess there are a lot of things that we told you that we would do in our proposal that we are going to have to now do". My reply: "Yes". The rest is ...

It sounds to me like if this is a bilateral modification this would be a good time to counter with any terms and conditions or anything (rate adjustments?) that you may want to renegotiate with the Government prior to signing the modification.

So I made the mistake one too many times of conducting a FAR Part 8 procurement like a FAR Part 15 best value, tradeoff. When it comes to FAR Part 8, what I have learned is that if it contains the steps and complexities of FAR Part 15 then it is subject to the same requirements of FAR Part 15. As difficult as it may be to force a more simplified source selection, I highly suggest that you make it LPTA with as streamlined criteria as you can in order to still have a valid outcome.

Well, because the technical advisory supervisor flatly refuses to provide a technical assessment that the KO can use, the issue is elevated by the KO supervisor. The KO supervisor is told to live with the technical assessment and the technical advisory supervisor is told never to provide a revised technical assessment. So the problem of having an inadequte technical assessment routinely occurs.

Vern, What I am specifically seeking is an idea, based on experiences greater than my own, as to how I could recommend some change to the process. Maybe others here on WIFCON have dealt with similar issues, how were those issues resolved. For example, create an organizational framework that binds the technical analysis group together with a dedicated 1102 negotiator so that the function is forced to create a timely and usable technical assessment product. There are some big brains on here with a lot of experience, and I am very appreciative of that knowledge and experience. I'm not content in just concluding that the process is unsatisfactory, I'm looking for ideas of how to make it work. I thought maybe if there was an OMB decision, IG report, or something that discussed seperation of technical and contractual authority responsibilities that maybe I am not aware of, that could nudge me in a particular direction. Thank you,

So yes, Don, exactly those conversations have taken place. It just so happens that the KO Supervisor and the Technical Adivosry Supervisor both report to the chief of contracts through the deputy chief. So elevating the issue within the organization only leads to a conflicted response.

Thank you Vern for your reply. I misspoke when I stated "chief of the contracting activity", I did intend to state "chief of the contracting office". My real struggle here is that there is not a statute or regulation that requires the organizational arrangement of the acquisition team. It just strikes me as very odd that a Contracting Officer would be handed a technical assessment report that is prepared without the input of the technical experts who are on the project team. Instead, the technical assessment report is prepared by technical experts who are owned by the contracting function within the organization. It also strikes me as odd that the KO is not afforded an opportunity to push the technical assessment report writers to amend their report to address discrepancies or gaps that the project team identifies with the report. It falls on the KO to sort out the details and make technical judgments on matters that quite frankly they are not technically qualified to make without technical backing. In essence, rather than the KO facilitating a consensus between technical stakeholders, which is what I am accustomed to doing on a number of highly-complex Part 15 best value continuum - tradeoff process procurements, the KO instead finds himself / herself continually having to mish-mash the technical report with often times conflicting data in order to form the negotiation position. This data, for example, is typically associated with return costs for previous work which was similar in size, scope, and complexity to the instant work item; upon conducting research and finding this data, the KO discovers that it wasn't considered in the report, and the technical assessment report writers typically refuse to revise the report on the basis that the report is done, and that's that. Often times differing and more specific technical details for what leads to the complexity of the effort which can only come from the project team come out after the technical assessment report is delivered, and when these facts are presented to the technical assessment report writers, again no revision comes because the report is done, and that's that. So you see, it puts it on the KO to make judgments based on the data and really doesn't give the KO a safety net if they accept a price as fair and reasonable and they made the wrong technical judgment. The entire process lacks finesse, puts the mission/organizatin/KO at risk, and I find it distasteful and truncated. I'm struggling to find a way to accept that this is acceptable.

I will just be direct with this one. I am witnessing an oddly organized technical analysis function and am trying to make sense of it. The contract in question is an established cost type contract which includes an FPRA. Work is added to the contract generally by way of specification formation for a number of work items which make up a base work package, request for cost proposal, negotiated agreement, and finally a bilateral contract modification. The process that occurs between cost proposal and negotiation position formation is the technical analysis function. The cost proposal is at the per work item level (a work item may be a particular alteration of an existing system, an inspection of a piece of major equipment, the complete replacement of some structure, etc.). The cost proposal is detailed across each major cost element of direct labor, subcontracts, materials, and ODCs. The proposal at the work item level is rolled up into a proposal pricing summary which provides a summary of the number of direct labor hours factored against the labor rate, materials, and subcontracts which arrives at the total proposed cost inclusive of labor overhead, G&A, FCCOM, incentive fees, and award fee. The culmination of work items comprises the base work package. The technical analysis of the contractor's cost proposal is very intensive and uses a variety of techniques including price analysis, cost analysis, cost realism analysis, and technical analysis across each major cost element (direct labor including straight time and overtime, subcontracts, materials, and ODCs). The intent of this analysis is to recommend negotiation positions to the KO and as appropriate recommend acceptance of proposed costs and state the basis for establishing price fair and reasonable. So this is a really comprehensive proposal and really comprehensive analysis. So the question is two-fold: 1) Is it customary or acceptable in Federal contracting for the technical experts conducting the technical analysis at FAR 15.404-1 ( e ) to be outside of the project team actually managing the project? And is customary or acceptable for these technical experts to report to the chief of the contracting activity rather than to the program manager? 2) Is it customary or acceptable in Federal contracting that the technical experts and the project team will routinely disagree on the technical position which will be provided to the Contracting Officer and for the Contracting Officer to be discouraged and prohibited from requiring the technical experts and project team to reach consensus prior to forming the negotiating position?

The rule that I have always followed is a two part rule. Part 1: Do not ever under any circumstance require that prospective offeror shall attend a site visit. This is because your requirements package should be well enough written that an accurate proposal can be prepared absent a site visit. Part 2: Always offer a site visit so that propsective offerors can satisfy themselves and their potential subcontractors of the obvious conditions which for whatever reason are not written into the requirement; And also state that failure to attend the site visit and failure to identify obvioius conditions does not constitute a valid claim for a differing site condition once the work is executed.

Don, Your approach makes sense. Okay, so taking the course of action that the supervisor steps in, what are the supervisor's options? Can the supervisor push this back down and direct Contracting Officer "A" to complete the contract action? If so, does a supervisor have the authority to direct a Contracting Officer to use his / her warrant authority and complete a contract aciton? And what is the consequence to Contracting Officer "A" upon refusal?

File a claim against who exactly?? The issue is that one ACO is refusing to process a rather mundane contract action because he/she doesn't agree with another ACO's action who also touched the contract. The Contractor doesn't even know that this is an issue. Plainly stated, the question is, to what extent does an ACO have the ability to just say, "I'm not going to sign this because I don't like what another ACO did in administering the contract" and just expect someone else to work their assigned project.

Good question... So the project in question is assigned to Contracting Officer "A". Because the work effort spans a number of modifications, lets say that this is a C contract (although more appropriately it should be an IDIQ with delivery orders, but maybe a certain somebody thought it up on 'the back of a napkin' and that's how it made its way on contract - yes you know what I'm referring to), and modificaitons A00002, A00003, and A00006 are all applicable to the body of work in question. It just so happens that A00003 was put on contract by another Contracting Officer. So now that the job is done, and the Contracting Officer to which this project is assigned is responsible for adjudicating the CIF via mod A00007, it just makes sense that this is the person who would complete the mod. Conversely, if Contracting Officer "B" were tasked, what could keep him/herfrom making an arguement that he/she does not agree with mod A00002 where the base work was put on contract and also refuses to do the mod because that rationale was accepted when stated by Contracting Officer "A"? You've got a 3 ring circus on your hands really quickly.

You would hope that there is more to the story. No, simply a case that the Contractor has no issue whatsoever with any of the modifications or the expected CIF. The issue is that Contracting Officer "B" flatly refuses to perform the necessary contract administration duties associated with adjudicating CIF via modification A00007 because he/she does not agree that the target should have ever been adjusted to what it was adjusted to. Is not agreeing with a previous contract action sufficient grounds for refusing to complete a contract modification?