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Vern Edwards

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  1. All proposal managers and writers should read a recent GAO bid protest decision: CR/SWS LLC, GAO B-414766.2, Sept. 13, 2017. In that case the agency was buying a commercial item--integrated solid waste management services at an Air Force base. The solicitation required offerors to submit a “technical proposal” that was to consist entirely of a “Mission Essential Contractor Services Plan” (MECSP). The proposal preparation instructions said: That’s it. There were no supplemental instructions and no formatting or page limitations. The solicitation said that the agency would evaluate proposals and select a contractor in a series of steps. The first step would be to evaluate the technical proposal (the Mission Essential Contractor Services Plan) for acceptability on a pass or fail basis. It said: and The solicitation defined acceptable and unacceptable as follows: The solicitation said that only those offerors whose technical proposals (the Plan) were determined to be acceptable would move on to the next phase of the evaluation, which would entail a past performance/price tradeoff analysis and decision. The solicitation said that the agency planned to award without discussions. Here is the text of DFARS 252.237-7024: Note that despite the capital letter at the beginning of each subparagraph, paragraph (b) is one long sentence. (Whether such a requirement was properly imposed in an acquisition of commercial item solid waste management services is a matter that I will not address in this blogpost.) The agency rated both the successful offeror’s and the protester’s plans to be acceptable. The successful offeror’s plan was less than two pages long. The protester’s plan was 14 pages long. The successful offeror won based on its lower price and past performance rating of “satisfactory confidence”. The protester, which had a higher price but a better past performance rating, complained that the successful offeror’s plan did not address all the topics required by DFARS 252.237.7024 paragraphs (b)(2)(ii) and (b)(2)(iii), “time lapses” and “training issues”. The GAO agreed, sustained the protest, and recommended that the agency either reject the successful offeror’s proposal or conduct discussions, solicit revised proposals, and make a new source selection decision. It also recommended that the agency reimburse the protester’s costs of filing and pursuing the protest. Yes, the agency was dumb. It did not take its own proposal preparation requirement seriously or plan its evaluation carefully. But that’s not the point of this blog post. The point of this blog post is that proposal managers and writers better pay close attention when reading and complying with proposal preparation instructions. They better dissect each and every sentence and phrase and identify each and every submission requirement. Details matter. Now, look back at DFARS 252.237.7024 paragraph (b)(2), which specifies the topics that a Mission Essential Contractor Services Plan must “address”. How many are there? At first glance, there are five, specified in subparagraphs (i) through (v). But, in fact, there are many more than five. Here is my phrase-by-phrase analysis of what DFARS 252.237.7024, paragraph (b)(2), requires offerors to “address”; 1. challenges associated with maintaining essential contractor services during an extended event; 2. time lapse associated with: 2.1. the initiation of the acquisition of essential personnel 2.2. the initiation of the acquisition of essential resources 2.3. the actual availability of essential personnel on site; 2.4. the actual availability of essential resources on site; 3. components for: 3.1. identification of personnel who are capable of relocating to alternate facilities 3.2. identification of personnel who are capable of performing work from home 3.3. training of personnel who are capable of relocating to alternate facilities 3.4. training of personnel who are capable of performing work from home 3.5. preparedness of personnel who are capable of relocating to alternate facilities 3.6. preparedness of personnel who are capable of performing work from home 4. processes for: 4.1. identification of personnel who are capable of relocating to alternate facilities 4.2. identification of personnel who are capable of performing work from home 4.3. training of personnel who are capable of relocating to alternate facilities 4.4. training of personnel who are capable of performing work from home 4.5. preparedness of personnel who are capable of relocating to alternate facilities 4.6. preparedness of personnel who are capable of performing work from home 5. requirements for: 5.1. identification of personnel who are capable of relocating to alternate facilities 5.2. identification of personnel who are capable of performing work from home 5.3. training of personnel who are capable of relocating to alternate facilities 5.4. training of personnel who are capable of performing work from home 5.5. preparedness of personnel who are capable of relocating to alternate facilities 5.6. preparedness of personnel who are capable of performing work from home 6. any established alert procedures for mobilizing identified “essential contractor service” personnel 7. any established notification procedures for mobilizing identified “essential contractor service” personnel 8. approach for: 8.1. communicating expectations to contractor employees regarding their roles during a crisis. 8.2. communicating expectations to contractor employees regarding their responsibilities during a crisis. By my count there are 27 planning topics to be addressed, not just five. (By the way, what’s in a “plan”? Some persons would think that a plan specifies who, what, when, where, and how.) My kind of analysis might accomplish three things. First, it will ensure that your proposal addresses each and every proposal preparation requirement. Agency personnel are not always aware of just what their proposal preparation instructions require of offerors. Read the convoluted instructions in some of the RFPs floating around out there. Read the sentences. There can be a lot of hidden eddies in bureaucratic stream-of-consciousness writing, as the Air Force learned in CR/SWS LLC. Second, it might alert complacent agency evaluators as to what they should be looking for in all proposals. This will give you a leg up if the competition has not been as thorough as you. Third, if you lose, it might give your attorney a basis for assessing whether the agency adhered to its evaluation criteria and ammunition for a protest, as it did in CR/SWS LLC. The protester was more conscientious than both its competitor and the agency, and so it won. Did the Department of Defense really intend for offerors to plan mission-essential contractor services in great detail? Was it practical to ask offerors to do so before contract award, i.e., before they understood what performance would actually be like on the Air Force base? What did the agency really want and expect from offerors? Who knows? It did not matter. Neither the agency nor the successful offeror took the proposal preparation instructions seriously, and it cost them. As for you agency personnel--you better think when you write proposal preparation instructions, and you better read what you’ve written when you plan your evaluations, and you better take what you’ve written seriously. And you better supplement and explain lousy boilerplate instructions like those in DFARS 252.237-7024. I assume that the Air Force will do as the GAO recommended: conduct discussions, seek proposal revisions, and make a new source selection decision. I wonder if it will supplement and clarify DFARS 252.237-7024. I wonder how comprehensive and how long the offerors’ Mission-Essential Contractor Services Plans will be in the second go-round.
  2. Where/ How to start learning?

    In order to identify "necessary" (but not mandatory) flowdown clauses, you have to read the clauses in your company's contract and determine what it require or potentially requires your company to do or refrain from doing. Then you have to think about what work you have hired a subcontractor to do and think about how if at all the clause in your contract might require something of your company that is being done by a subcontractor. For instance, suppose that your contract includes a changes clause giving the customer the right to unilaterally modify the work specification, and suppose that some of the work is being done by a sub. Now suppose that the customer issues a change order modifying the specification for the work that is being done by the sub. If you don't have a changes clause in the subcontract, you may not be able to issue a change order to the sub, passing on the change order from the customer. What if the sub refuses to go along? How can you comply? So you must include a changes clause in the subcontract to ensure that you can order the sub to comply. What if your customer can terminate your contract for convenience and you don't have a clause allowing you to terminate your subs? Thus, in order to identify necessary clauses you have to read and analyze your contract clauses, think about what they obligate or contingently obligate you to do or refrain from doing, and include clauses in subcontracts that allow you to pass on those obligations and contingent obligations to your subs. You need a lot of legal and technical know-how and experience to even understand the clauses in your company's contract, much less determine what obligations and contingent obligations you might need to pass on to your subs. That's not the kind of work that I would assign to a newbie, even for training purposes. It's not an easy thing. You need some prep study and time on the job before you can do reliable work at that kind of analysis. Baby steps.
  3. Where/ How to start learning?

    Here's how to find the FAR and DFARS mandatory flowdown clauses that primes must include in subcontractors and that subcontractors must flowdown to their subcontractors, and so on. See, e.g., FAR 52.215-12. Do the following: 1. Go to https://www.acquisition.gov/browsefar and download the current FAR in pdf format. 2. Do an Adobe search of FAR Part 52 for the terms subcontract and subcontractor. Check each clause that comes up for text similar to that of FAR 52.215-12, paragraph (c), which is a mandatory flowdown requirement. Each clause that contains such a requirement is a mandatory flowdown clause. You must do the same thing to find DFARS mandatory flowdown clauses. The process is a little tedious, but not as tedious as reading the FAR and DFARS "line by line." You can learn a lot while doing it. The other kind of flowdown clause could be described as "necessary." They are ones that a contractor or subcontractor must flow down to its subcontractors so that it can fulfill its obligations to its customer and otherwise protect itself. Examples include FAR 52.243-1 and 52.249-2. If you are new to government contracting, then identifying such clauses is probably beyond your capability.
  4. C Culham: My experience in this forum is that we never get all the facts. People who ask questions here don't know what facts we need, and I no longer have the patience to interrogate them. I will no longer ask for more info. I wouldn't have posted in this thread at all except that I wanted to suggest a soft tone of response to the protest. I provided sample language. The OP will do with it what he'll do with it. As I told him, if my sample language reflects the truth, then he can use it or something like it. If not, he should reject it.
  5. Send this or something like it. =========== The following is In response to your protest that we should have considered your quote of June 29 when making our decision to award an order under RFQ XXXXXXXXXXXX, which was issued on August 14. We requested and received an informal quote from you on June 29 as part of our market research to determine how much money we would need to make a buy. After our market research we issued a formal request for quotations (RFQ) on August 14, which initiated the actual competition. You submitted a new quote, which we considered, but that quote was higher than the one you submitted on June 29 and too high to be the winning quote. We could not consider the quote you submitted on June 29 because you did not submit it in response to our formal request and it thus did not reflect the terms in that request. We are bound by law to conduct competitions in accordance with the terms of our formal requests. See Federal Acquisition Regulation (FAR) 8.405-1(d)(4), which says: "The ordering activity contracting officer shall ensure that all quotes received are fairly considered and award is made in accordance with the basis for selection in the RFQ." Emphasis added. We regret that you increased your price in your new quote, but that was your right. We made our ultimate decision in strict accordance with the requirements of FAR Subpart 8.5, the terms of the GSA schedule contract, and the terms of our formal request for quotations. While we understand and regret your disappointment, we cannot accede to your protest. We hope that you will participate in the future if we make another buy. We look forward to the chance to do business with you. Sincerely... =========== If that reflects the truth, send it or something like it in tone. Don't write like an uppity bureaucrat. Write like one businessperson to another.
  6. Whose requirement is this & how do I resolve?

    Well, have fun. Keep good notes in case you decide to write a book.
  7. Whose requirement is this & how do I resolve?

    What does everyone thing about what? Letting the Marines join in? Sounds like trouble to me in light of the differences in requirements. But those sound like programmatic issues, not contracting issues. If the program office wants to let the Marines play, what say do you have as contracting officer? Or are asking just about whether and to what extent the Marines should participate in the source selection?
  8. DFARS Business Systems

    I am not aware of any findings about efficiencies or other ROI. However, you might be interested in a DODIG report, Evaluation of Defense Contract Management Agency Actions on Reported DoD Contractor Business System Deficiencies, DODIG-2016-001, Oct. 1, 2015: You can find the full report, 32 pages, here: http://www.dodig.mil/pubs/documents/DODIG-2016-001.pdf There might be a more recent report. I have not looked.
  9. See Additional Management Attention and Action Needed to Close Contracts and Reduce Audit Backlog, GAO Report 17-738, September 2017. I could not determine if the number of days were woking days or calendar days.
  10. IDIQ Decision

    Industry lobbyists have been hard at work.
  11. IDIQ Decision

    Our two proposals may be absurd, but they're absurd for different reasons. Yours is absurd due to content. Mine is absurd due to process. I just do not think that you appreciate the complexities of the issues that can arise during definitization of a UCA. I once negotiated large dollar value letter contracts for development of spacecraft ground systems and other projects. The dollar values were such that some needed approval by a three-star, four-star, or even Secretary of the Air Force. Some of my PNMs and other file documents had to be reviewed by local contract review committee and JAG and sometimes by headquarters contract review committee and JAG. The idea that I could or would perform cost analysis and conduct negotiations without getting field pricing support would have been rejected out of hand by all levels of review. Furthermore, you must understand that field pricing support can be a political issue involving with CACOs, ACOs, and DCAA. They might have issues of their own with the contractor (FPRAs and other transactions) that must be coordinated with contracting officers in various contracting activities. To leave them out would be unacceptable at many levels. The FAR is not the only consideration. Go to DPAP's webpage and read some of the policy documents. Your proposal would cover contracts for which definitization proposals can be enormous--hundreds of millions to billions--with very large and complex companies that wield extraordinary market and political power, such that no CO could perform a decent cost analysis without field pricing support. The issues in such transactions are often multi-faceted and complex. It is naive to think that COs are little dictators who can act entirely on their own. They might be such on small dollar contracts for run of the mill stuff. But large, programmatic transactions have bureaucratic implications that you do not seem to understand or acknowledge. To say that COs who rely on DCAA are weak and rely on crutches when they don't have to is just not fair. It indicates that you don't understand what goes on in the real world of real organizations. Really, I'm dumbfounded by some of the things you are saying about CO responsibility with respect to UCAs. Many of the COs handling them are top of the line, top notch people. The very best. They are not missing deadlines because of negligence. I was late on a few UCAs in my time, and I always had a good reason for it. If a CO is negligent or incompetent, then they should be disciplined or replaced in the normal course of management. But to recommend that they should be "personally liable" (whatever that means) when they miss a deadline is to recommend flat out bad policy. Do you want to see how complex the issues can be? Read United Technologies Corp. - Pratt & Whitney Aircraft Group, Government Products Division, ASBCA 27830, 90-2 BCA ¶ 22772. Thirty-eight pages that'll make your head spin. The decision section begins: "The dispute between the parties involves their failure to definitize fully a letter contract. In pricing these contracts, they could not agree whether independent research and development as well as bid and proposal costs (IR & D/B & P) allocable to this contract were subject to the advance agreement ceilings between the United States Department of Defense and appellant."
  12. IDIQ Decision

    Those assertions are not just false, they're absurd. The decision to get field pricing support is not merely a matter of CO personal choice when definitizing large UCAs. I deeoly respect your knowledge of government contract costs and pricing, but it has failed you in this matter. You clearly do not understand bureaucratic and programmatic practice within government contracting activities. You're in over your head in this topic, and there's no reason to further entertain or debate your ideas about it.
  13. IDIQ Decision

    No. The status quo is not fine. I propose the repeal of 10 U.S.C. § 2326. It should never have been enacted. It is nothing but Congressional micromanagement of the Executive Branch, and it is entirely ridiculous in terms of its underlying expectations and timeframes. Congress itself has made routine compliance impracticable through its legislative malpractice. If you want to complain about something, complain about Congress's perennial failure to authorize appropriations and appropriate funds in a timely manner.
  14. They would not agree, and they should not. The FAR is not binding on contractors, except as imposed by the express terms of contracts. See the attached.THE FAR: Does It Have Contractual Force And Effect?.pdf
  15. IDIQ Decision

    Understood, as one old guy to another.
  16. IDIQ Decision

    Emphasis added. I'm pretty sure that letter contracts are UCAs. See DFARS 217.7401(d).
  17. IDIQ Decision

    Moreover, on large and complex contracts, especially development contracts, technical, schedule, and budget issues might arise during the period between issuance of the UCA and submission of the definitization proposal. Such matters will have to be worked out and may delay the submission of a proposal. Such matters might arise between submission of the proposal and the date set for commencement of negotiations, or even during negotiations. Persons who have negotiated complex UCA definitizations are familiar with those problems.
  18. IDIQ Decision

    By "the statute" I presume you are referring to 10 U.S.C. § 2326, "Undefinitized contractual actions: restrictions." By "comply" I presume you are referring to the limitation on obligation of funds in paragraph (b) and the time limits in paragraphs (b)(1) and ( (f). If so, please cite the specific language of the statute that says a CO or a PM is to be held "personally liable" for failing to comply with those requirements or that requires an agency head to hold them personally liable. Please cite anything anywhere in the statute that requires a CO or a PM to be "personally liable" for anything. And what do you mean by "personally liable"? Liable in what way? What is the nature of the liability to which you would hold them? Please be specific, H2H, since you obviously think it's important and since any such policy could be detrimental. You are making the argument, so you owe it to us to explain how you reached your conclusion about personal liability.
  19. IDIQ Decision

    You can't hold COs personally liable (or responsible), because they must rely on others in their own and the contractor's organization during the definitization process in order to reach a settlement. COs lead the government definitization team, but they don't have dictatorial powers. And unilateral decisions will probably lead to litigation. Definitization may involve more than just price and time settlements. There may be unresolved technical issues. It is not just a matter of processing paperwork. COs should not be judged on the basis of outcomes that they cannot control through their personal performance.
  20. IDIQ Decision

    Here's a typical anecdotal, sensationalist report that was published in the Washington Times in 2015. This is the kind of thing that the public reads and judges you on. Federal agencies end fiscal year with shopping spree: $8,788 in hand sanitizer, $33,000 in toilet paper among last-minute buys http://www.washingtontimes.com/news/2015/oct/1/golden-hammer-federal-agencies-end-fiscal-year-wit/
  21. IDIQ Decision

    See Do Expiring Budgets Lead to Wasteful Year-End Spending? Evidence from Federal Procurement, a oft-cited 2010 study of year-end spending conducted by two researchers for the National Bureau of Economic Research (NBER). The study was based on IT acquisitions between 2004 and 2009. It reached the following conclusion: The reference to "quality" refers to the inherent value of the project for which the acquisition is being conducted, not to the conduct of the acquisition process. The paper is interesting, but somewhat technical. Keep in mind that it is based entirely on IT acquisitions. Other studies of other types of acquisitions show that in some agencies the highest rate of obligation is during the first quarter of the fiscal year. That probably reflects annual obligations for kicking off large dollar severable support services. Here is a link to a short nontechnical summary of the NBER study. In the summary you'll find a link to the complete study report, which is 67 pages long. http://www.nber.org/digest/mar14/w19481.html Heads up: There appear to be slightly different versions of this study report, some dated 2010 and some dated 2013. However, as best I can tell, they report the same conclusions.
  22. See FAR 1.108(f): Emphasis added. So much for the FAR Finance Team, whoever they are.
  23. IDIQ Decision

    No. Burn all bandwagons. If you need a UCA, do a UCA.
  24. IDIQ Decision

    About wandering "off the reservation." Here is the OP: That was covered in the first response: Really, what more was there to say? Then someone offered a general proposition: And the the thread was off and running, although the route was circuitous because someone decided to tell a personal story that had no bearing on the general proposition. All in all, the response to the general proposition has been more interesting than the opening post.
  25. IDIQ Decision

    There are three issues: 1. Does the government obligate a disproportionate amount of its annual appropriations during the last month of the fiscal year? 2. What constitutes a "wasteful" obligation? 3. Are end-of-year obligations any more "wasteful" than obligations made during the first 11 months of the fiscal year? It's "common knowledge" that the answer to the first question is yes. There are differences of opinion about the answer to the second question and no generally accepted proposition. (What's "wasteful" is in the eye of the beholder.) And it's a common assumption that the answer to the third question is yes. According to Curbing the Surge in Year-End Federal Government Spending: Reforming “Use It or Lose It” Rules, by Fichtner and Greene, a 2014 Mercatus Working Paper out of George Mason University, there is not a lot of empirical evidence in support of answers to questions 1 and 3. The authors of that study surveyed the literature and did their own analysis of some data. They looked at the U.S., at state governments, and at some foreign governments. They were especially interested in determining whether use-it-or-lose-it spending policies were contributing to unbalanced spending and waste and whether a carry-over or rollover policy would be better. https://www.mercatus.org/system/files/Fichtner-Year-End-Spending.pdf Some choice quotes, with footnotes omitted: Anecdotal accounts of year-end waste do not prove any general proposition and are very often nothing but a one-sided expression of opinion. My own experience as a contracting officer and chief of a contracting office was to have a rush of procurements at the end of the FY, but I don't know whether that rush produced disproportionate amounts of obligation. It never occurred to me to record data in that regard. I obligated what I was asked to obligate when I could do it. Most were projects that had been sitting around waiting for funding and that happened because other projects fell through and left money on the table. Although I think it is reasonable to assume that a hurry-up procurement is more likely to be wasteful than a well-planned one, I cannot prove any general proposition in that regard. I can think of some procurements that I thought were wasteful despite being well-planned. As contracting practitioners, we need to think this through before jumping on the bandwagon of unproven assertion and accusation.