Todd Davis

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  1. See if this helps. https://www.federalregister.gov/documents/2014/03/31/2014-07069/defense-federal-acquisition-regulation-supplement-performance-based-payments-dfars-case-2011-d045
  2. Unless the past performance evaluation factor is somehow flawed itself, I don't think use of the factor itself could be found to be inproper. In fact the FAR requires use of the factor for certain procurements (FAR 15.304(c)(3)). Also, I wouldn't consider "indicators of ability to perform" to be a factor itself uless it were better defined. In my opinion the phrase "indicators of ability to perform" is simply stating that past performance is only one indicator of the ability to successfully perform work under a contract. Other indictators include, but are not limited to experience, key personnel, quality, management capability, personnel qualifications, and technical approach. Typically, factors such as these are combined with past performance. Evaluation of a proposal against these factors help the Government ascertain the likelihood of successful performance. It should also be noted that agencies have broad discretion in establishing evaluation criteria so long as it complies with the minimum requirements of the FAR.
  3. If the contract gives the government unrestricted choice to use, I don't think the government's reason for picking one over the other matters. While the government may have provided estimated quantities of what would be ordered for each, that is normally not binding. The clause does not restrict the governments choice of what quantities of which line items to order, so any restriction would have to be one that was added by some other term or condition. FAR 16.503(a)(1) states: "For the information of offerors and contractors, the contracting officer shall state a realistic estimated total quantity in the solicitation and resulting contract. This estimate is not a representation to an offeror or contractor that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal. The contracting officer may obtain the estimate from records of previous requirements and consumption, or by other means, and should base the estimate on the most current information available" (emphasis added). Also see clause 52.216-21 which states: "The quantities of supplies or services specified in the Schedule are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the Government’s requirements do not result in orders in the quantities described as “estimated” or “maximum” in the Schedule, that fact shall not constitute the basis for an equitable price adjustment" (emphasis added). While a contractor may prepare their pricing on these estimates and/or the government negotiated rates based on these quantities, the rates in the contract are the same and binding on the parties regardless if a quantity of one or something greater is ordered. This assumes that a maximum quantity limiting the contractor’s obligation to deliver is not stated in the contract (FAR 16.503(a)(2)). I'm not sure what is meant by the government issuing a change order requiring the government to buy B instead of A in some circumstances. Unless the contract specified which one had to be purchased, I don't understand why a modification would be necessary. It is my understanding that the government already has the choice. Because no specific quantities are guaranteed in a requirements contract, the change in demand for one or the other should be irrelevant. Nothing in the requirements contact clause requires equitable adjustment based on changes in estimated quantity or requires re-pricing. The contract was already priced with the risk that a low or high quantity, or none would be ordered among all contract line items. I suppose if the government was concerned it would be paying too much for the service it could ask the contract to renegotiate a downward price or consider terminating the contract for convenience. However, I can't think of anything in the contract that would compel the contractor or government to renegotiate price. I haven't looked to see if there is any case law related to this type of situation.
  4. Freeze was lifted, but that doesn't necessarily mean that all agencies will be hiring or as much as they might have otherwise.
  5. When you say "use of those procedures" you mean Part 13, correct?
  6. I second Napolik's comment and reference to Vern's post. Do not use Part 14 or 15 procedures when conducting a Part 13 acquisition. Besides, it defeats the whole purpose of being given a "simplified" procedure to conduct certain acquisitions. Stick with an evaluation scheme consistent with the flexibility that FAR 13.104(a)(2) and 13.106-2(b) permit. Keep it as simple as possible.
  7. The site says this is "This is historical material “frozen in time” and refers to the prior administration. Update. I now see where the Trump administration is linking to the OFPP page of the prior administration.
  8. We use the same simplified procedures to closeout GSA orders as well as orders against ours and other agency IDCs.
  9. I agree with the Frog, especially his comment about un-sourced information. I was always taught to expect that from others and it is what I do when I answer others. I would still take the un-sourced information and consider it, but not take it as being 100% correct without some other sourced corroboration. Of course, even if the supervisor does not source their requirement, you may still be compelled to comply in certain situations.
  10. FAR 4.804-5 does not apply to SAP actions (see 4.804-1(b)). Our agency has separate simplified closeout procedures for SAP actions, which include the final payment disbursement date, amount, and invoice number. Even for other than SAP actions, we only document the final payment details, not all invoices. Also, the word "voucher" is singular, so I would interpret it to mean only one. It would make sense to document the last invoice and payment disbursement details since that is the date from which the retention period is calculated.
  11. I work in policy for my agency. A few weeks ago we were asked to provide input to our agency for the CAAC on ideas for the types of items described at (d)(ii) of the EO.
  12. While the topic is not new, a recent article on Government Executive cited some eye opening numbers on the layers of leadership in Government, which increased by more than 400% between 1961 and 2016. During that same time the numbers of leaders per layer has grown nearly 750%. Some of the position titles even bear out the data, including "deputy chief of staff to the assistant secretary” and “associate assistant deputy administrator.” http://www.govexec.com/management/2017/04/pay-freezes-helped-make-government-top-heavy-says-scholar/136684/?oref=top-story
  13. I'd ask the contracting officer if it is not stated in the solicitation. The acceptance date is not the date the proposals are evaluated, but rather the date the CO accepts the proposal forming a contract. I would think that an award date would need to be established so the correct price can be determined and used as part of the evaluation.
  14. Does the contract refer you to a specific website for the clauses and provisions listed? The FARSite says its DTAR is current as of 12/16/2016, but like you I do not see the clause you reference there. Also, the Dept. of Treasury website provides a link the the eCFR where the codified version of the DTAR is also located. https://www.treasury.gov/about/organizational-structure/offices/Mgt/Pages/ProcurementPolicy-Regulations.aspx. I do not see the clause listed there either. Like the FAR and other supplements, the month and year stated with the clause simply identifies the date the clause or provision was established or last changed. Unless you believe the version is incorrect, there is nothing inherently wrong with an older date being listed. It just means it is an older clause or provision and hasn't been changed. There are many clauses and provisions in the FAR dated "APR 1984." Of course here the concern may not be the date, but rather it apparently not being a clause prescribed by the DTAR. When I look at the other DTAR clauses and provisions most of them end with a -70, 72, 73, etc. The use of a -7X suffix in an agency supplement to the FAR indicates that the clause or provision is supplementing the FAR. The DFARS is similar in that its clauses and provisions usually have a -7000, -7001, etc. suffix. However, supplements to the DFARS and FAR such as the AFFARS use suffixes like -9000 and -9001. The fact that clause your questioning uses a -9X prefix might indicate that it is a clause prescribed by an agency or bureau policy under the Dept of Treasury separate from the DTAR. Also, you said that you are reviewing a contract. If it is a contract and not a solicitation, the clauses and other terms and conditions in it are already binding on the parties. If you are reviewing a solicitation and are considering submitting a quote/bid/offer, but are concerned with the content of some clauses or provisions, then I would suggest contacting the contracting officer and expressing your concern and see what their responses is. As with the FAR, the CO may be required by agency regulation to use certain clauses and provisions and may or may not be able to change the text of them without higher level approval.
  15. I don't think it is backwards. Both need to have good writing skills. I've seen poorly written work from both customers and contracting folks. I don't think a instructor's status as a contractor or Federal employee is relevant. What matters is that the content of the course and that the person providing the instruction be knowledgeable and an expert with the subject matter. Many of the contractor staff were once Federal employees. Also, while formal training may be one way of addressing the issue, it will not solve the problem. Just look at the training programs required to obtain the various levels of DAWIA or FAC-C certification. This training alone does not create competent contracting professionals. I would argue that other elements such as on-the-job training, having a good supervisor, seeking out opportunities to improve one's own skills, practice, and being held (and holding one's self) accountable are more important factors in solving the problem. Even if an individual has the benefit of these things, not having adequate time to allocate to writing a PWS/SOW/spec is could result in a poorly written document. If I were unhappy with the solution offered by leadership or thought the training missed the mark, I would go out and seek my own knowledge. I wouldn't wait for the agency to teach me. I would then share it with my co-workers by providing OJT and tools/guides to help them do their job better. I've recently took over responsibility for writing and maintaining our agency's policy. I know that my writing needs to be improved, despite being at it for 20+ years. So I looked to sources of information like the GPO Style Guide, our agency style guide, reviewed plain writing materials, and looked up grammar rules on the Internet. I'm still learning. There is a four hour DAU course on the subject (CLM 031 Improved Statement of Work). Lastly, hopefully folks are writing more performance work statements than statements of work.