Todd Davis

I agree with the prior comments. Other examples of the FAR instructing individuals other than COs include: - Requirements of "planners" regarding acquisition plans (Subpart 7.1). - Technical and requirements personnel being responsible for providing and certifying as accurate and complete data supporting their recommendation for other than full and open competition (FAR 6.303-1) - Advocates for Competition (Subpart 6.5) - Procurement integrity requirements (Subpart 3.1) - The evaluation team and source selection authority (Subpart 15.3)

Same here. To me, having access to resources like those, knowing how to find what is needed, and being able to comprehend the material is essential. I call my Nash and Cibinic books, the books that make me look smart.

I agree with Vern and Napolik's conclusion and rationale. It is consistent with the guidance we provide to COs within our agency regarding the use of multi-year funds for severable services. "The above authority (FAR 32.703-3(b)) for severable services specifically applies to contracts funded by annual (single year) appropriations. If a contract is funded by multi-year funds, those funds are only available to fund severable services during their period of availability. For example, if FY 17/18 funds are used, those funds may pay for severable services between 10/1/2016 and 9/30/2018."

I second what Vern said. In my "early" days of contracting (mid 90s), I managed decentralized BPAs where those appointed by the CO as ordering officials placed calls and ordered supplies or services permitted under the BPA. No paper order was issued. The ordering official would keep a call register/log documenting the calls made and would send to the CO monthly. Upon receipt of the log and an invoice from the contractor, the CO would approve the invoice for payment.

I previously worked for a division of GE for a few years. While the division I worked for wasn't a "tech" company and it did not have Federal contracts, we did have people who's primary job was to be a cost productivity manager. Folks in manufacturing, engineering, and sourcing would work with that person on projects to reduce the cost of the product we sold. Projects were discussed, valued, and if appropriate pursued and monitored to completion. If fact, we reported on those projects on a routine basis to top executives in our division. Had that division of GE sold the product to the government, it would have been easy to roll information regarding those efforts into a report. While companies have different priorities and resources, I'm surprised someone didn't track the savings in some manner, even if it was a minor part of their job. Otherwise, how would they know the value of the improvement they made or if it was worth the cost/benefit. I would think that top management would want to know the benefit of the efforts being made or which cost saving projects to pursue over others.

From the limited information provided, it is not clear if this is a free trial period as part of a contract or not. You might want to check out GAO Red Book, Chapter 6, Section C (The Antideficiency Act), 3 (Voluntary Services Prohibition) and see if that helps you. Also, if the requirement is something that would otherwise be subject to competition, you might want to consider whether or not testing one firms product and not another's provides an unfair competitive advantage. The FAR does discuss pre-award testing at Subpart 11.8, but I'm not sure if it applies to your situation or not.

Read, read, and read some more (books, regulations, policy, GAO decisions, board decisions, court opinions, Wifcon, etc.). Too many folks don't read or read completely. When reading, read what the policy/regulation says and not what you or a customer want it to say. Don't believe everything your told. Ask lots of questions and for supporting rationale and references to policy and regulation with the answers you receive. Ask different individuals the same question when appropriate to benefit from different views. Take advantage of opportunities to gain diverse hands on experience. Be able to admit it when wrong and learn from it. Improve your clear and critical thinking skills. Don't try to get promoted too quickly. I've seen folks jump from lower graded positions to GS-13, 14+ with relatively limited experience. As a result, they are not able to adequately support the organization they work for and folks that rely on them for guidance and the organization suffers for it.

While it can't hurt to make the change on the next modification, I don't think it is a necessity. Both the provision and clause that include the hyperlink state "Upon request, the Contracting Officer will make their full text available" and that the clause or provision may be accessed at the link. So, if the link does not work, the alternative is to ask the CO for the full text, upon which the CO will likely instead give requestor an updated link.

Thanks Don. That makes sense since the prescription for the subcontracting limitation clause 52.219-14 states that it is not used for small business set asides not expected to exceed $150K. Not sure why the FAR wouldn't state the nonmanufacturer rule does not apply for small business set aside actions not exceeding the $150K. I know the FAR make reference to 13 CFR Part 121. Since the OP comment said their action is a small business set aside, then I agree the nonmanufacturer rule does not apply. Having said that, the exception seems to apply to small business set asides only and not to the other types of set asides under FAR Part 19. I believe this is why the prescription is different for 52.219-14 when it comes to 8a procurements and why the subcontracting limitations and nonmanufacturer rule applicability is addressed in the other set aside clauses. The prescription for these other set aside clauses are not dollar threshold dependent. Do you see it the same way, or am I missing something?

I agree with Don with respect to a small business set-aside based on the prescription for clause 52.219-14. However, if your procuring an end product you'll want to ensure compliance with the non-manufacturer rule (FAR 19.102(f)). While it may not apply to your situation, I would add that if you are setting aside a requirement for 8a there is not a dollar value related to the prescription of clause 52.219-14. Also, the HUBZone, WOSB, and SDVOSB set aside clauses include subcontracting limitations which do not have dollar thresholds in the prescription.

I think whether it is prohibited or not is based on the purpose. I would apply the definitions of a procurement contract versus a grant or cooperative agreement which are at 31 U.S.C. 6301 et. al. I would also apply the appropriate GAO decisions and court opinions if it became necessary. The GAO provided an interpretation of the Federal Grants and Cooperative Agreements Act in B-196872. While it may not be applicable here, the GAO has also rendered decisions regarding the use of contracts versus agreements with "intermediaries" and when each is appropriate which are available here on Wifcon under the protest section at FAR 35.003 (e.g., B-406738.8). Also, some agencies also have an "other transaction authority" instrument type available to them based on statute that are neither procurement contracts subject to the FAR or agreements within the definition at 31 U.S.C. 6301 et. al. One example of such an authority is 7 U.S.C. 6962a. Also see GAO decision B-412711 related to the use of other transaction authority.

I am not a grammar expert. Does the comma usage the way the sentence is written restrict the exception to real estate services of a specific nature, that is those related to housing Federal agencies or disposing of real property owned by the Government? The agency I work for also acquires "title services" but they are not typically provided by a title insurance company. Instead they are usually provided by a local title and abstract company. The title company conducts title research at the courthouse and other sources, an individual (usually an attorney) examines the legal documents and prepares a title opinion/commitment, acquires a title insurance policy from a title insurance company, then facilitates the closing. The cost of the title insurance policy, title examination, and title commitment is typically performed by someone who is not a "service employee". Consequently, even if the real estate exemption did not apply, it could be that in the situation described by the OP, the services may still not be subject to the SCLS statues.

Depending on where this law is codified in the U.S. Code, maybe there will be a definition of "rules" or "regulations" there, but I doubt it. Absent a definition, I think it would be a matter of statutory interpretation. Maybe it will take another adverse action against an employee and subsequent lawsuit to get an answer to that, after which Congress may have to take another look at the statute. At least one congressman characterized the issue as being a choice between "following their superior's orders or following the agency's rules or regulations." That congressman went on to state "in many ways, an agency's rules and regulations are the standing orders of the head of the agency." This would seem to indicate they mean any rule or regulation made by the agency head. For example, if the agency head or designee implemented a regulation or rule (policy), regardless of whether it was a published rule or regulation in the FR and/or CFR, then I think it could be argued that this statute might extend to such rules or regulations. However, there could be a situation where an employee is told to do something that would violate one of those agency head issued rules or regulations. I supposed the agency head is free to repeal or authorize a deviation from the rule if they have the authority to do so and require compliance with the different direction being provided to the employee. I don't think these protections would extend to those rules or policies issued below the agency head level. I would think that folks under that level are free to change policy or waive compliance with the lower level policies that they themselves established.

Congress passed and the President signed into law yesterday, the Follow the Rules Act. The purpose of the law is to clarify that, under the Whistleblower Protection Act, an employee who refuses to obey an order that would require the employee to violate a law, rule, or regulation is protected. It was passed unanimously 409-0. The issue of extending whistleblower protections to those who refuse to violate rules or regulations was discussed on a now closed discussion which is at the link below from last year. I've included some excerpts from the Congressional Record below. "Last year, the U.S. Court of Appeals for the Federal Circuit considered the case of Dr. Timothy Rainey. Dr. Rainey, an employee of the State Department, refused an order to violate the Federal Acquisition Regulation. Dr. Rainey's supervisors subsequently took away his responsibilities as a contracting officer representative. He argued it was because of his refusal to obey the order. Thus, the Federal Circuit considered whether Federal managers can retaliate against employees who refuse to obey an order that would violate a government rule or regulation rather than a statute. Unfortunately, the Federal Circuit has a record of misinterpreting the law on whistleblowers. That is precisely what happened here. The court held such employees were not protected. Ironically, the court relied on a significant 2015 Supreme Court decision, DHS v. MacLean, which reaffirmed the protections of the Whistleblower Protection Act. The Federal Circuit's decision puts Federal employees in an impossible situation. It forces them to choose between following their superior's orders or following the agency's rules or regulations. In many ways, an agency's rules and regulations are the standing orders of the head of the agency. My colleague, Representative Duffy, introduced the Follow the Rules Act to fix this problem. H.R. 657 makes clear that employees are protected from retaliation for disobeying orders that would violate an agency rule or regulation. Refusing to obey such orders is exactly the type of action for which Federal employees should be protected from." "The Federal circuit, God knoweth how, held that an employee who refuses to obey an order is protected only if the order would violate a law, a statute, but not if the order would violate a rule or a regulation. Talk about looking at angels on the head of a pin. The court's ruling was contrary, clearly, to the Whistleblower Protection Act and the intent of this Congress. In enacting the Whistleblower Protection Act, Congress clearly intended that protections granted to government employees who blow the whistle on waste, fraud, and abuse be construed broadly. We clearly had in mind not only laws, but rules and regulations as well."

Are the environmental mandates known, the water quality, and an ongoing need for the system? If so, why bother with a option to purchase? Just establish in RFQ and purchase order the requirements the system must meet and that acceptance and payment for the system is contingent upon meeting specified requirements and satisfactory test results specified in the purchase order. Unless it is necessary for some other reason, paying rental on item then purchasing it could wind up costing the agency more money, especially if the rental payments are still due even if the system does not meet environmental requirements. Regarding the applicability of FAR Subpart 17.2 to clause 52.207.5, I don't think it does. The scope of 17.2 is defined at 17.200 and it makes no reference to Subpart 7.4 or clause 52.207-5. Maybe someone else in this forum is more familiar with use of clause 52.207-5.

I looked up antonyms for the word "reform." Words include break, damage, harm, hurt, ruin, worsen. Unfortunately, these words better describe the results of most reform efforts. I think the next reform should include the removal of laws and regulations that represent a significant burden to the acquisition workforce, combined with proper employee incentives, but most of all accountability of all involved (acquisition workforce and its management). I've worked in Government procurement for over 18 years and another 5 in a Fortune 100 company. The differences in results and accomplishments that I've witnessed are striking. While at the private sector company, I was on a small team (4 people) and we were responsible for a nearly $1B spend. We had no regulation, policy or handbook. Certainly not a 1000 page plus FAR, or hundred plus page long guides for certain contracting tasks. We had specific strategic goals to achieve, developed a plan on how to accomplish the goals, and implemented the plan, and had a system to measure our results. Leadership made it clear they expected results and I was accountable for achieving them. I had a healthy concern for my job. While I didn't think about it much, I knew I never wanted to give leadership a reason to let me go. Instead I strived to be a top performer and was able to achieve that result. I was also incentivized with pay increases and performance bonuses tied to the team's accomplishments. In all my years of experience and having been in or observed different Federal agencies, I cannot recall any instance of anyone being held accountable for not achieving any specified results. Heck, I haven't even seen a meaningful or accurate system of measuring results. Folks claim to save millions or billions with little proof or a way to validate the savings, yet appropriations and spending often increase. I've also not seen any meaningful incentive for folks to make processes more efficient or manage budgets more efficiently.

Thank you for the education and your writings. Enjoy your retirement! I hope to have a similar view some day.

Vern explained this to me previously on a different post. Pull up the section on the eCFR site. For example, I pulled up FAR 5.101(a). The text of the FAR cites two USC code references which are the source of the requirements listed in the paragraph. Even if those were not listed there, if you look at the bottom of the section in the eCFR you will see a series of Federal Register notices. [48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1728, Jan. 11, 1985; 50 FR 52429, Dec. 23, 1985; 51 FR 27117, July 29, 1986; 52 FR 21885, June 9, 1987; 56 FR 41731, Aug. 22, 1991; 60 FR 34736, 34746, July 3, 1995; 61 FR 39191, July 26, 1996; 62 FR 12692, Mar. 17, 1997; 63 FR 58592, Oct. 30, 1998; 66 FR 27409, May 16, 2001; 68 FR 56678, Oct. 1, 2003; 72 FR 63076, Nov. 7, 2007; 75 FR 53132, Aug. 30, 2010; 79 FR 24197, Apr. 29, 2014] You can then look up these FR notices which should contain information (e.g., FAR case) about rule that was published in the FAR. Sometimes these FR notices will reference other FR notices which solicited comments as part of the rule making process. Each one of these added or made some change to the content of that section. A legal search tool such as Westlaw is useful in pulling up FR notices, especially older ones. Sometimes simply searching for it on a search engine such as Google can locate it. There is a GPO site for FR notices goes back to 1990 and also the FR website itself, but it only goes back so far. Sometimes the source of the content in the FAR is an Executive Order which can be found at the embedded link. Sometimes it is the US Code from a public law. U.S.C. can be found at the embedded link. Under each section there is a list of public laws from which the code came. Each public law is hyperlinked to the original text of the law.

I think it depends on the hiring supervisor. I obtained my CPCM several years ago. The main reason I took it was just to have it in my back pocket and it was more of personal achievement and a why not. I didn't and don't expect it to be a factor in getting hired for a job, assuming the interviewer even knew what it was. Regarding the private section, again I think it depends on the employer. I doubt very much the private sector would pay much attention to it unless they had significant work with a Federal agency and were looking with someone with Federal experience. If I had to guess, I'd say the private sector would pay more attention to it than a Federal agency. I'm kind of cynical that way. I won't say the test was easy, but I took it without studying, just relying on my (at the time) 9 years of Federal experience and 5 years in the private sector. When I left Federal service earlier in my career for the private sector, I obtained my CPM from ISM. I was glad I did. When I walked into the interviewer's offices at GE all the people I interviewed with had it hanging on their wall. Again, I don't think it was what got me hired, but I don't think it hurt. Later on ISM stopped the CPM certification and started the CPSM (Certified Professional in Supply Management). I obtained that as well several years ago, just in case I ever wanted to jump back into the private sector. As I hiring manager or supporter of one, I have given some weight to certification but not too much. These days just about anyone can get a certification or degree, there is even one in Bouillabaseball I hear. I would look at getting the certification as showing initiative, but I'd give much more weight to the hand-on experience, accomplishments, and communication skills someone has.

"Ha!!! I kill me!"

In my role at the agency I work for, I receive copies of FAR cases and proposed rules for agency comment. There are some moving through the process and I suspect a FAC published soon.

USDA uses the Form AD-1205 and its policy is at Departmental Regulation 5090-001, USDA Small Business Programs - Full Small Business Participation & Clearance Process for Contracts Not Set-aside or Reserved for Small Business Participation.

It depends on the procedures you are using. When using the procedures of Subpart 8.4, COs are not permitted to seek competition outside of the Federal Supply Schedules or synopsize the requirement (see FAR 8.404(a)). However, if you are using the procedures other than those at 8.4, vendors that happen to have a schedule contractor are not precluded from participating in the procurement. If I were to solicit MAS schedule vendors under the latter scenario, I would make it very clear what FAR procedures I was using and that I was not using the procedures of 8.4 and would not be placing an order against a schedule contract. As others have said, the FAR does not require use of of other non-mandatory sources, hence the term "non"-mandatory (FAR 8.004). It is only encouraged. This section changed a few years ago when use of "optional" GSA schedule contracts was removed from the priority listing of sources of supply. I haven't researched this to see what was behind this change, but I wouldn't be surprised if it had to do with the competitiveness of schedule contracts with open market sources. Many of the rates GSA negotiates and includes in the contracts are significantly higher than can be obtained from open market sources or even some of the same GSA schedule contract holders if they are asked for a price reduction.

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

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.