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Emptor Cautus

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Blog Comments posted by Emptor Cautus

  1. This will probably be my last mention of the Section 809 panel here, as Bob has created a new discussion category (i.e., Section 809 Panel) in the discussion area.

    I just wanted to respond to Melissa’s call to action.


    All of you are welcome to be part of the solution.  If anyone would like to share your best practices and have them considered for insertion in the Section 809 Panel's submittal to Congress or there is a part of DFARS or FAR that is completely impeding your abilty to get work done, please submit your recoommendations, including what you think the final change needs to look like, to https://section809panel.org/contact/

    Be the change you want to see in the world!

    My eponymous self was already part of the solution, having discussed potential changes with a number of Panel members even before the names of the Panel members became official. And, subsequently, with them and with the Panel's support group.

    However, responding directly to Melissa’s call to action, I have submitted a recommendation at the Panel's website as Emptor Cautus, recommending that most of the coverage in the Federal Acquisition Regulation concerning personal and nonpersonal services contracts be eliminated. It is based on outdated guidance, largely unnecessary, and may even be counterproductive to the efficient and effective acquisition of services in a mixed workforce environment.

    The recommendation is not a new one. It was a recommendation of the Section 1423 Panel, which shares two members with the Section 809 Panel. You can see the findings and recommendations on the subject or personal services in the REPORT OF THE ACQUISITION ADVISORY PANEL to the Office of Federal Procurement Policy and the United States Congress, January 2007.

    Why did I do this, after I had painted such a forlorn picture of acquisition reform? Why should you do it? Remember this, after Pandora had opened the box (or jar) given to her, and released all the evils that were held within upon the world, there was one thing remaining — Hope.

  2. Another set of acquisition reform recommendations come from Jeffrey P. Bialos, Against the Odds: Driving Defense Innovation in a Change-Resistant Ecosystem. These come to us from the Center for Transatlantic Relations, The Paul H. Nitze School of Advanced International Studies, The Johns Hopkins University.

    Against the Odds is intended to address the issue of the will to change. I was particularly taken by a statement made by the Honorable David Oliver, Jr. in a Special Foreword.


    It is also no secret that, over the last several decades, there have been literally dozens of announced procurement reforms but no grand improvements. All of these remedies seem to follow a similar desultory trend. A good idea is proposed with enthusiasm, greeted with alacrity, organized with enthusiasm, but then is resisted by the first Uniformed Service which might have to change the slightest bit its operational paradigm. Thereafter, everyone collapses in obeisance.

    I thought that pretty well summed up at least one of the issues associated with achieving successful change through acquisition reform.

  3. I came across a great line in a Dean Koontz supernatural thriller that Vern had given me to read.

    Stormy Llewellyn to her boyfriend, Odd Thomas, the title character of the novel: "The smart thing for you would be to stay away from adjectives altogether."

    Yes, it's true; Vern's reading is not limited to books on acquisition and the classics.

    This entry was posted with Vern's permission. Well, some of it had Vern's permission.

  4. Trust me, my tongue was not in my cheek when I suggested that past performance information be ignored.

    Let me provide some background. I was invited to visit the group responsible for the FAR Part 15 Rewrite to discuss the “Neutral” issue, and a number of other comments that I had made in a series of public comments. The group made the change from “neutral” to “may not be evaluated favorably or unfavorably on past performance.” We discussed the ways to achieve that result. I addressed one in my original Blog entry, which appears to have created some consternation. There is another way to achieve the same effect; when comparing two offerors directly, give both offerors the same rating as the offeror with past performance information. (This may also cause some consternation among readers.) Either way, the purpose was to get away from neutral. I admit that my personal preference is for the approach originally presented in the Blog entry.

    Recall the language from the Federal Register, Volume 62 September 30, 1997 (62 FR 51226)

    “ . . . the final rule includes language based on 41 U.S.C. 405(j)(2) providing offerors, without a previous performance history, a rating that neither rewards nor penalizes the offeror. We selected this alternative to allow the facts of the instant acquisition to be used in determining what rating scheme would satisfy requirements of the statute.”

    The latter sentence was to address the two approaches that could adequately address the statutory requirement, and allow the contracting organization to make a choice. Unfortunately, the FAR does not provide the alternatives that had been discussed.

  5. Interestingly enough, the FAR defines neither "Past Performance" nor "Past Performance Information". However, in the discussion of past performance evaluation, under the overall topic of proposal evaluation, FAR 15.305(a)(2) lays out the type of information that can be considered. For instance, FAR 15.305(a)(2)(ii) states, in part:

    The solicitation shall describe the approach for evaluating performance, including evaluating offeros with no relevant performance history, and shall provide offerors an opportunity to identify past or current contracts (including Federal, State and local government and private) for efforts similar to the Government requirement.

    That coverage, alone, gives fairly broad leeway. However, when combined with FAR 15.305(a)(2)(iii), there is much more:

    The evaluation shall take into account past performance information regarding predecessor companies, key personnel who have relevant experience or subcontractos that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.

    As the old joke goes, "There has to be a pony in there somewhere." But, there is always the potential that an offeror may have no relevant performance history. Presuming that you don't want to buy a pig in a poke, what's to be done? As hinted, at the end of the Blog post, I believe the answer is "Experience," which will be adressed in an upcoming Blog post

    By the way, source selection is not the only area where this is a potential concern, it is also relevant to contractor responsibility determinations:

    FAR 9.104-1 General standards.

    To be determined responsible, a prospective contractor must -

    ( c ) Have a satisfactory performance record (see 9.104( b ) and Subpart 42.15). A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9.104-2;

    FAR 9.104-2 deals with special standards.

  6. I had said that I wasn't going to look for an older version of the Chart, and I kept my word. However, while searching for a vintage document on multi-year contracting, I stumbled across an older version, June 1977. That particular version, Types of Contracts (A Comparison and Summary), was published by the Department of Procurement and Production, Air Force Institute of Technology (AFIT). In addition to contract types, there are "Other Contractual Devices (Special Uses)," which includes Letter Contracts and Indefinite Delivery. On this Chart, there are four rows of information (i.e., Application and Essential Elements, Limitations, Suitability, ASPR). [Note: For those of you not old enough to remember the ASPR, it was (is) the Armed Services Procurement Regulation. For those of us in the Department of Defense back then, it is what we had before the FAR and the DFARS, it is what we had before their predecessor, the Defense Acquisition Regulation (DAR), it was the reason that we created our contract file documentation: "To cover your ASPR."]

  7. joel hoffman points out that the term "Procuring Contracting Officer" is defined in the DAU Glossary, and appears in the DFARS Procedures, Guidance and Information (PGI), and in other publications. Actually, in the latest edition of the Glossary, the Fifteenth Edition, the term that is defined is "'Procuring' Contracting Officer." The subtle difference is that the Defense Acquisition University has caught on to the need to put quotation marks around the word "Procuring," as it is not the standard term. Additionally, I would suggest you all take a look at the new Disclaimer that appears on page vii of the Fifteenth Edition. The Disclaimer addresses the fact that the Glossary may define words differently than in the Federal Acquisition Regulation (FAR).

    Joel pointed out that Procuring Contracting Officer appears in the DoD PGI. In point of fact, it also appears in the DFARS. However, of the 1535 times "contracting officer" appears in the DFARS, only six are "procuring." In the PGI, it's 25 out of 620. As previously pointed out, the term appears in only one instance out of the 5,465 in the FAR. Perhaps, what we have here is a situation where the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council need to provide a little more training for their proofreaders and editors.

    As an aside, if you read extensively in our business, you will find that PCO, in addition to standing for "procuring contracting," also stands for "procurement contracting officer" and "principal contracting officer," and who knows what all else.

  8. I am afraid that the confusion KO2BE suffered from was the result of the failure of the instructor to properly distinguish "cost or pricing data" from "data other than cost or pricing data." The definitions, by the way, are actually relatively new, probably having entered federal Government service about the same time as KO2BE, October 1, 2010. That change to the FAR was six years and twenty-three days in the making. It was highly controversial with industry. I remember attending the special public session that was held on the change, where several industry speakers rose to the microphone to adamantly oppose the change because it gave too much power to contracting officers. In reality the change was designed to help contracting officers better understand the full extent of their authority to ask for data other than cost or pricing data, particularly when doing commercial item acquisition. So, the representatives from the FAR Council argued, equally adamantly, that the changes, for the most part, were only rearrangements of existing coverage, and realignment with statutory language.

    Although much of the data is the same, I would distinguish "cost or pricing data" from "data other than cost or pricing data" in these ways. First, "cost or pricing data are required to be certified, which is when they become "certified cost or pricing data." "Data other than certified cost or pricing data" are, obviously, not certified. Second, "data other than certified cost or pricing data" are obtained, for the most part, when "cost or pricing data" are not (see FAR 15.403-1 prohibition on obtaining certified cost or pricing data. I include that "for the most part" because of FAR 15.402 Pricing policy, where at (a)(1) it states that the contracting officer

    Shall obtain certified cost or pricing data when required by 15.403-4, along with data other than certified cost or pricing data as necessary to establish a fair and reasonable price.

    Third, according to the definitions in FAR 2.101, "cost or pricing data are "facts," whereas, "data other than certified cost or pricing data" also contain "judgmental information." The latter is why you have the policy at FAR 15.402(a)(1).

    Would "cost and (sic) pricing information," as suggested, be a better term than "data other than certified cost or pricing information"? I won't address the issue, except to point out that the term "data other than certified cost or pricing data" was inserted in the FAR in place of the term "information other than cost or pricing data. That change, and a number of others, came about as a result of FAR Case 2005-036, with a final rule appearing in FAC 2005-45, dated August 30, 2010. The FAC was a huge change to the regulation, affecting 296 pages, although not all of those pages are attributable to the one case. Here is the explanation of the change that appeared in the FAC:

    This final rule amends the FAR by redefining "cost or pricing data," adding a definition of "certified cost or pricing data," and changing the term "information other than cost or pricing data," to "data other than certified cost or pricing data." The rule clarifies the existing authority for contracting officers to require certified cost or pricing data or data other than certified cost or pricing data, and the existing requirements for submission of various types of pricing data. The rule is required to eliminate confusion and misunderstanding, especially regarding the authority of the contracting officer to request data other than certified cost or pricing data when there is no other means to determine the proposed prices are fair and reasonable. Most significantly, the rule clarifies that data other than certified cost or pricing data may include the identical types of data as certified cost or pricing data but without the certification. Because the rule clarifies existing requirements, it will have only minimal impact on the Government, offerors, and automated systems.

    The changes to terminology were to better align to the statutory terms. FAR 2.101 refers the reader to 10 U.S.C. 2306a(h)(1) and 41 U.S.C. 254b. Note, however, that the second reference is outdated, and the information is now in 41 U.S.C. Chapter 35. Did the rule "eliminate confusion and misunderstanding"? Apparently not, at least not entirely.

    How about the suggested "uncertified cost and (sic) pricing data"? My concern with that would be whether it would create confusion with "cost or pricing data," which are require certification, but have just not yet been certified.

    Having lived the language on both sides of the change, I believe that we are better off with the language as changed. Could the language be improved? Well, that is for another day, and another FAR case.

  9. The Federal Acquisition Regulation (FAR) is part of 48 CFR, arguably the most important part. The FAR is codified at 48 CFR Chapter 1. The focus of the blog posting is to point out that people in our acquisition business routinely use a number of terms as if they are in the FAR, when they are not, essentially ignoring the actual FAR terms. I suspect that in many cases the people who use the terms believe them to be in the FAR. There are many such terms.

    As apsofacto points out, "best and final offers" (BAFO) is another example, appearing in two rogue instances (i.e., FAR 22.404-2( b )(5) and FAR 22.404-4( c)). BAFO was eliminated from the FAR in the FAR Part 15 Rewrite in 1997. The current term is "final proposal revisions." It is somewhat interesting to note that there is one correct usage in FAR Part 22 (i.e., FAR 22.1003( c )(3)(I)). Apparently, the left hand doesn't know what the right hand is doing.

    Perhaps the most interesting term is one I elected not to use, "procuring contracting officer" (PCO), which appears only once in the FAR (i.e., FAR 3.104-4(d)(1)(I). That makes it one instance out of 5,465. According to FAR 2.101, the correct term is "contracting officer," unless you need to specify either "Administrative contracting officer (ACO)" or "Termination contracting officer (TCO)."

  10. As another "Barney" (Bernard of Chartres) said, "nanos gigantum humeris insidentes." it translates that we are dwarfs standing on the shoulders of giants, Barney was such a giant, and many contract specialists and contracting officers have benefitted significantly by being able to stand on his shoulders.

    He will be missed dearly.