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KeithB18

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About KeithB18

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  1. My initial interest was a scenario that I think is specifically prohibited, "operational delays." Depending on your appetite for risk, even if you thought you had a 90% chance of prevailing at GAO, you may choose to settle, if settlement were a real alternative. So the settlement offer would be something approximating what GAO would tell the agency to pay when the agency loses a protest. Another scenario that I'm thinking about is a situation where an agency writes a solicitation provision that it can't comply with but doesn't realize it until after proposals are received. But really I just wondered if it was possible or ever came up before.
  2. If anyone is interested, while I was researching this morning, I found a reference to "Fedmail" in the RedBook chapter 3. "Occasionally, an agency may pay money to protestors to withdraw protests simply so that the agency may proceed with its procurement operations. This practice is known as “Fedmail.” GAO, ADP Bid Protests: Better Disclosure and Accountability of Settlements Needed, GAO/GGD-90-13 (Washington, D.C.: Mar. 30, 1990), at 8, 30; Maj. Nathanael Causey and others, 1994 Contract Law Developments—The Year in Review, 1995 Army Lawyer 3 (1995), n. 50. Typically, the payment is for bid protest preparation expenses, including legal fees. GAO/GGD-90-13, at 31. Public policy favors the settlement of disputes, and agencies may settle protests and pay damages in the form of bid protest costs.71 Comp. Gen. 340 (1992). GAO does not oppose monetary settlements that reimburse a protestor’s bid preparation costs if an agency determines that it likely will be held responsible for such costs and is unable to correct the procurement. GAO/GGD-90-13, at 31. However, GAO stated in GAO/GGD-90-13 that there is no basis for any settlement that an agency may offer solely to avoid operational delays resulting from a protest." So it seems like it is allowable in the right circumstance.
  3. A thought came to my mind yesterday and I wanted to bounce it off the smart folks here. Scenario: Source selection has concluded for a nine figure procurement. There are only two offerors, afferor A, the incumbent, and offeror B. Offeror B is the apparent winner. Immediately after award, could the government enter into an agreement with offeror A that, in return for a one time lump sum payment, offeror A would forgo its right to protest to GAO or COFC? Additional questions: - Could the government do this under Alternative Dispute Resolution at 33.214? - Could the government do this to resolve a protest to the agency at 33.103?
  4. I shouldn't have included that line regarding CPARS--pure speculation on my part. They didn't tell us why they planned to provide gratuitous services.
  5. Thank you for sharing your knowledge here. Based on what has been said here and some additional research on my end, I am comfortable receiving the "gratuitous" services. I'm not overly concerned about the lack of contractual enforcement of specifications and clauses--it hasn't been the sort of work that those things have come into conflict. What I don't think make sense is to issue a modification saying that the contractor is going to provide $xxx,xxx in "gratuitous" services as that would imply that the terms and conditions of the contract cover the gratuitous portion. Confirming via email seems like it would suffice.
  6. I'm trying to broker a compromise based on this. If we fund it but the contractor never invoices for it, great. No worries. The funds are two year money so as long as we do our jobs efficiently, the un-invoiced for funds will got back to the program office. In short, we can't make them invoice for hours they don't want to invoice for. This is an issue I'm working. Will update the thread if I can get to resolution.
  7. I had a strange variation on this theme arise this week. A contractor notified a contracting officer as required, but stated that even though they expected to overrun the ceiling price (T&M type GSA order) by $six figures, they were not requesting additional funding and planned to finish the effort (about six more months of effort) within the ceiling price. I know a good deal when I see one--the contractor here is effectively eating some costs in order to receive a non-negative "cost control" rating in CPARS. (The total order value is in the low eight figure range.) However, another CO and our agency counsel believes that this would be accepting voluntary services and therefore not allowed. They've pointed me to the inspection/acceptance section of 52.212-4 Alt 1, but I'm not persuaded that those paragraphs cover what is contemplated here. They've also pointed me to B-324214 at GAO, which really has nothing to do with contracting. They both believe that I should be able to point to something in the FAR that allows us to accept these services, but I think they have the standard of evidence backwards. I might be wrong, but I keep asking why we are trying so hard not to take a good deal. Thoughts?
  8. For question 2: - If you are a jerk in your interactions with the contracting officer you could run into problems. - I've had vendors ask me so many questions that I felt like they wanted me to write their proposal for them. Even the most clearly stated RFQ/P will be interpreted in different ways so I think prospective offerors just have to live with a certain amount of ambiguity. The CO is probably not going to be able to make it perfectly clear for everyone. - I dislike answering questions that can be answered with publicly available data. FPDS and FBO are your friend. Questions about the incumbent and the previous price paid can almost always be found there (Not always, but most of the time). So don't ask the CO to do your research for you.
  9. We've been calling it Hit-Rip (HTRRP). Not sure it is better than anything else, but it is something.
  10. The most fun I have ever had in contracting is when I did construction contracting years ago. So for me, that would be a big draw. I don't share the love for DOD that others here do. I was active duty for four years and supported DOD agencies as a civilian for 4 additional years and I strongly prefer civilian agencies. There is significantly less bureaucracy outside of DOD which I feel like helps me get my job done without excessively focusing on box checking. Best of luck in your decision.
  11. I would recommend against getting involved with Kickstarter unless you know the person asking for funds personally. A few years ago I was burned for a not insignificant amount when the person that posted the kickstarter failed to deliver anything, even though the project received full funding. It's been a growing problem with kickstarter. If the project does receive the required funding, it will be eventually be available for purchase (typically at a much higher price). That's the time when I'd consider purchasing it on behalf of the government.
  12. I am obviously quite late to this thread but I wasn't turned on to this approach until I was lucky enough to have Mr. Nash teach a portion of a class I attended in April. (He was really enthusiastic about it.) I am planning on using it for a rather large IT services procurement (~$300M over five years)*, but predictably enough, I'm encountering significant bureaucratic pushback up to the SPE level. I provided the Sevatac to the relevant people and have described the benefits of the approach. But I'm getting a lot of "we've never done this before" and "what do the lawyers think" and "this sounds risky." Has anyone at the working level used this yet? And if so, how did you convince the bureaucracy to go along? I certainly haven't given up the fight, but experience from others would be helpful! * Some additional details: Planning on using 8.4 and issuing 2 BPAs. Previous contract used 8.4 and tradeoff process for a single award service contract.
  13. Vern, With much respect and as a person that has gone out of his way to see you speak, I think you are projecting your experience on the career field. I was active duty in the Air Force at LA AFB in the mid aughts for 3 years. I spent 18 months in a program office (GPS) and 18 months in the operational shop (61 CONS). I also did two, four month deployments during that time (Iraq 05, and Afghanistan 05-06). I bought zero things during my time in the program office--I attended endless meetings, mostly planning on ensuring that nothing actually happened. I was on an IPT of 50+ people. Contrast that with my time in 61 CONS where I worked construction contracts that literally facilitated the base moving from Area A and Area B to only Area A. The colleagues that I deployed with that had only program office experience had no idea how to buy, well, anything. They'd been sitting in meetings while I was thrust into roles that people actually depended on in the operational shop. At this point in my career, I'm a GS14 and I supervise 6 people at a civilian agency. The bulk of my work is research and development contracting. But the things that really get the SES worked up is the operational stuff--commercial services, IT purchases, and basic "blocking and tackling" contracting. I spend a lot more time defending those things and making sure they have tight files and justifications than I do the R&D stuff. It's also totally possible I stink at my job, I suppose. So I guess it is fine to prefer the once in a lifetime buys that you did at SMC etc. But your attitude towards "purchasing" is daft and shows no real understanding of what the government is buying. And it's mildly offensive to those of us that don't inhabit the program office world. That said, I roll my eyes when I hear people talk about strategic sourcing and the person saying such stuff is the sort of procurement leader who has never signed a government contract talks about. Looking forward to the ensuing flame war.
  14. I've been experimenting using existing data sets (FPDS and locally generated reports) to measure the performance of our contract specialists and our organization generally. Low level stuff really: How effective are we are spending appropriated funds throughout the year rather than waiting until the 4th quarter for execution? The idea is that organizations get better procurement outcomes when the contracting office has the proper amount of time to develop an optimal procurement strategy. Too often we get crappy SOWs dumped on us in August-September so we end up with crappy contracts. If I can use FPDS data to show the 4th quarter spike, and then explain the consequences of that spike, I might be able to get the point across to the program offices. On a contract specialist level, I can make sure that I'm not pigeon-holing a specialist with a certain type of procurement or customer by tracking the types of procurement actions they are awarding. It helps to identify who is performing and identify potential skills gaps. Using local reports, I can track our PALT* times by office and by individual. I actually read "The PerformanceStat Potential" recently by Robert Behn. Behn was involved in NYC's CompStat program. He says in the book that there is no perfect performance measure. So I look at my modest attempts at using big data as an element in a larger picture of performance. One last point is that the government generates an insane amount of data. Rather than trying to develop a new database or dataset, I'd recommend examining what already exists to see if that will fit your needs. *Usual caveats about PALT. It's not always useful or indicative of performance and it certainly doesn't speak to quality.
  15. A couple of things I have not seen mentioned: 1.) While I recognize this isn't answering the question, if you get quotes that differ wildly from the IGCE, it might be prudent to examine the basis for the IGCE. Did they cut and paste something from the past? Did they pencil whip it just to meet the requirements of the contracting office? 2.) The FAR's language leaves the door open, IMO, for a specialist to do additional analysis above and beyond the existence of adequate price competition. I tell the specialists that work for me that if they are uncomfortable with a price being fair and reasonable, they should attempt to do additional analysis to gain another data point or points. There are seven total examples of price analysis in 15.404(B )(2). Can one of those additional methods be utilized to gain further insight? Eventually, you'll have to make a recomendation to your CO. That means you'll need to exercise some discretion and business judgment. I think this thread is a good start.
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