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Vern Edwards

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  1. Vern Edwards

    Pre-Award Protest - Subcontractor CPARS

    The GAO has issued 22 decisions in which a protester challenged the past performance provisions of a solicitation as unduly restrictive. It denied all but one of those protests, The most frequently cited decision is Valor Construction Management LLC, B-405365, Oct. 24, 2011 (denied). Here is the key passage from that decision: However, in Iyaback Construction LLC, B-409196, Feb. 6, 2014 (sustained), it sustained the protest because the agency failed to explain why its restrictions were necessary. Ask the agency why it needs the restrictions it has imposed on past performance information. If they do not give you a rational answer, consult an attorney about filing a preaward protest that the solicitation is unduly restrictive.
  2. Vern Edwards

    AAP site down?

    I typed <Ask A Professor> into the address bar and it worked for me. Same old goofy answers.
  3. Vern Edwards

    Probability Problem #2

    @Don Mansfield Okay. Let's look again at the scenario: Emphasis added. If you document the file to say that you've determined that the MPC is $100M, as you said in the quote above, then that's the value you should use. But if, instead, you document the file to say: A. Our best estimate of the cost of any contract that is most likely to result from [Edwards'] proposal falls within a range of $100M (80% chance) to $120M (40% chance), and has an expected value of $104M. and B. Our best estimate of the cost of any contract that is most likely to result from [Hoffman's] proposal falls within a range of $100M (60% chance) to $120M (40% chance), and has an expected value of $108M. then I say you could use the values $104M and $108M when making tradeoffs. I believe those would be better numbers than $100M. Of course, as you have set up the problem, I'm not disinterested. @jayandstacey The italicized phrases in the statements A and B above are based on the sentence in FAR 15.404-1(d)(2)(i) that says: Emphases added. FAR 15.404-1(d) does not use the phrase "most likely cost." As I'm interpreting the above sentence, the antecedent of the pronoun "that" is the phrase "any contract", not the phrase "the cost". If I'm interpreting the quoted sentence properly, as taught by Sister Mary Elizabeth, the adjectival phrase "that is most likely to result" does not apply to the phrase the cost, but to the phrase any contract, which might not be what the FAR councils meant, but which is what they said. In other words, I interpret the sentence to say any contract that is most likely to result, not any cost that is most likely to result. 😈 Besides, it is a contract that results from a proposal, not a cost. A cost results from a contract. If the FAR councils meant: The probable cost may differ from the proposed cost and should reflect the Government's best estimate of the cost that is most likely to result from any contract that is awarded to the offeror then that's what they should have written. 😎 @All I think what Don was trying to get at was whether FAR 15.404-1(d) requires a point estimate of probable cost or permits a range estimate. Do you have to state a particular number or can you say that the probable cost is between X1 and X2 with a specified probability distribution? If it permits such a range estimate, then how do you apply it during tradeoff analysis? What Don's scenario and our responses should teach us is how treacherous language can be when describing probabilities. What, exactly, do you mean when you say that something "is likely" to happen or "will probably" happen? What do you mean by "most likely" or "most probable"? In other words, do we know what we're talking about when we're talking about cost realism? Finally, what worries us most? Meeting the GAO's legal standards of evaluation or meeting sound business standards? I say that GAO's legal standards are not particularly high.
  4. Vern Edwards

    Probability Problem #2

    Here is the problem as posted: Don asks for decisions based on the values provided. Matthew provided both his decisions and his calculations. Don then asked: We cannot judge the legal merits of anyone's answer, whichever values or combinations of values are chosen, because we have not been told how the given values were determined. Here are three quotes from a GAO decision concerning a cost realism protest. The quotes are based on more or less standard boilerplate decisional verbiage GAO uses when deciding cost realism protests. The quotes are from Science Applications, International Corporation, B-290971, October 16, 2002: Emphasis added. Matthew's answers are based on straightforward mathematical calculations, which is what I assumed that Don was asking for. Don is fascinated by probability, and I assumed he was testing our knowledge of probability calculation procedures. jayandstacey's answer appears to be based on regulatory interpretation, as does here_2_help's concurrence. But if the issues are legal, i.e., (1) whether using expected cost, or jayandstacey's $100M, as the most probable cost and as the basis for adjusting offerors' estimated costs complies with FAR, and (2) whether the analysis would survive a protest, then it is impossible to offer an informed opinion. The answers to those questions would depend on the reasonableness of the method(s) and data used, which we do not know. Cost realism analysis is an art, not a science. I do not agree with jayandstacey's narrow interpretation of FAR 15.404-1(d). The regulation does not use the phrase "most likely" or most probable. It says only "probable." I have seen nothing in any cost realism protest decision indicating that the probable cost cannot be determined on the basis of combined probabilities. Cost realism analysis is a legal requirement. As a practical matter, determinations of probable cost (or most probable or most likely cost) have largely been exercises in futility. We should not be evaluating cost in competitions for cost-reimbursement contracts, as required by CICA and FAR. It's an unsound business practice and a reflection of the ignorance of politicians. See "Estimated Cost Competition: An Idea Whose Time Has Come... And Gone," The Nash & Cibinic Report, May 2018.
  5. Vern Edwards

    Master Degrees

    You don't need another degree to be a better contracts professional. You need job specific knowledge and skills such as critical thinking, analytical reading, writing, and public speaking. What kind of contracting do you do? Long-term complex services? IT? Major systems? Commercial items? What kind of contracting do you want to do?
  6. The original 1962 threshold was $100,000. It was raised to $500,000 in 1982. Then it was reduced to back to $100,000 in 1984. Then it was raised back to $500,000 in 1991, and it's been increased from there. At present, the threshold is $2,000,000. If you don't believe me I can provide statutory citations, or you can look up the history in Defective Pricing Handbook, 2018 Edition, § 2.4, by David Z. Bodenheimer. Essential reading for those who want to understand the cost or pricing data law.
  7. No. It was $500,000.
  8. It's too late. I did a quick search for GAO task order protest decisions and found 195 (including protests of FSS order competitions). I searched among them for "RFP" and found 115. I then searched for "competitive range" and found 39. I searched for "discussions" and found 78. I searched for "final proposal revision" and found 29. I searched for "proposed plan" and found 35. I found the following, or something like it, in many of the decisions: What those results tell me is that the acquisition workforce is bound mind, hand, and foot to the FAR Part 15 Process Model, and they cannot free themselves. Many of them are incapable of undertaking simple measures. They cannot envision and design simpler, faster processes.
  9. HOW TO CONSIDER PROFESSIONAL EMPLOYEE COMPENSATION WITHOUT INVOKING FAR 52.222-46 WHEN GIVING MATOC CONTRACTORS A FAIR OPPORTUNITY TO BE CONSIDERED UNDER FAR 16.505(b) . FAR 52.222-46, which is a solicitation provision, not a contract clause, and something of a jumble, requires that offerors submit “total compensation plans” accompanied by “supporting data.” The supporting data must include “recognized national and regional compensation surveys and studies of professional, public and private organizations.” The provision states that the government will evaluate the plan for (1) a sound management approach, (2) understanding of the contract requirements, (3) ability to provide uninterrupted high-quality work, (4) impact upon recruiting and retention, and (5) realism. FAR 52.222-46 has figured in 72 GAO decisions and five COFC decisions. The GAO has said that in the case of fixed price contracts the evaluation is, “in effect,” an evaluation of price realism. See Maxim Healthcare Services, Inc., B-412967.11, June 25, 2018. FAR 52.222-46 covers two scenarios. The first scenario is one in which the procurement is a recompete and the issue is whether an offeror is proposing lower wages (salaries and fringe benefits) than are being paid by the incumbent, assuming that the incumbent has maintained a qualified and stable workforce. Payment of lower wages would be “wage busting,” which in 1978 the GAO defined as “lowering employee wages and fringe benefits by incumbent or successor contractors, to be low bidders or offerors on Government service contracts, when the employees continue to perform the same jobs.” The second scenario is one in which the procurement is new or the incumbent has not maintained a qualified and stable workforce and the issue is whether an offeror is proposing wages sufficient to establish and maintain a qualified and stable workforce. In this scenario, wage busting is not an issue. When giving MATOC contractors a fair opportunity to be considered for the award of a long-term task order requiring professional work, it would be understandable that an agency might want to ensure that contractors propose wages adequate to the maintenance of a qualified, stable, professional workforce. The question is whether an agency providing a fair opportunity to be considered, and concerned about professional employee compensation, should invoke FAR 52.222-46 and its requirements or do something else---something less demanding, costly, and time-consuming than soliciting and evaluating total compensation plans and supporting data. What are the alternatives? Keep in mind that FAR 16.505(b) does not require the solicitation of written offers or quotes. See FAR 16.505(b)(1)(ii) See also FAR 16.505(b)(iii) and (iv) for orders that will exceed certain dollar thresholds. And see FAR 16.505(b)(1)(v)(B): When complying with FAR 16.505(b) (or, for FSS contracts, FAR Subpart 8.4), my goal would be to keep submissions and the evaluation process as simple as possible, consistent with making a sound decision. I would want to avoid requesting and evaluating "total compensation plans" and supporting data, because that would be consistent with keeping submission requirements to a minimum. Remember than an agency planning to consider professional employee compensation would have to announce that professional employee compensation will be an evaluation factor. Now, going back to the first scenario, discussed above, the agency could simply assume that since the incumbent’s workforce is qualified and stable the wages being paid are sufficient. In that case, the government could simply warn contractors that it will not countenance reductions of professional wages and will not select any contractor that intends to reduce wages. Alternatively, the government could state that if a contractor proposes lower wages it must explain how it will maintain the workforce in the face of the reductions. This alternative approach would entail analysis and assessment of any such explanation, and the government will have to make a decision about the wisdom of the reductions and justify any decision to reject a contractor that plans to cut wages. Going back to the second scenario, the government could do market research to determine what professional employees are being paid for the kind of work that will be required under the task order. It could then provide the findings of its research to the contractors under consideration and state that any contractor which plans to pay less must explain how they will maintain a qualified and stable workforce. Again, that would entail analysis and assessment of any explanation and justification of any decision. In either scenario, the government should clearly state that it does not intend for the consideration of professional employee compensation to be or to require a price realism analysis. The basic idea would be to avoid the requirements, burdens, and confusion of 52.222-46. I think that with a little creativity a CO could find ways consider professional employee compensation without becoming entangled in a solicitation provision of questionable value and meaning. Keep it simple.
  10. FAR doesn't use "a method developed by NASA." FAR Subpart 22.11 does not prescribe any "method." FAR 52.222-46 prescribes a submission of information. Method is another thing entirely.
  11. Why not simply state that when competing for orders contractors may not reduce the wages paid to professional, administrative, and clerical employees in order to reduce prices?
  12. @FrankJon: You quote a six year old post out of context in an attempt to show that I have been inconsistent. Well, read that six year old quote again, and think. It looks like I was talking about a policy entirely within the scope of Part 15, cost or pricing data. I was not talking about policies---FAR 16.505(b) and 22.1103---that are beyond the scope of Part 15. My position on the matter in this thread doesn't contradict my earlier one. Arguably, a task order might be a negotiated contract for one purpose, but not for another. My initial post did not "deride" you. I expressed frustration with the responses to a straightforward inquiry. "Oh, for Pete's sake" and "Get a clue." That crushed your feelings? When you came back at me I gave a polite, detailed explanation for my position, and heard nothing more from you. I told you to *** *** after you came at me with the supposed contradiction. What's happening now is nothing but you licking your wounds. My complaint is that your lengthy response to a beginner was likely to send him or her down a road toward needless complexity. I wrote the following in "The New Rules for Multiple Award Task Order Contracting," The Nash & Cibinic Report, June 1995: Boy , was I right, or was I right? Just look at what you recommended: It depends. In reality, it's up to the CO. Why do I say that? Let's break down the prescription at 22.1103. It applies only to "negotiated contracts." According to FAR 15.000, a negotiated contract is: Therefore, a task order contract qualifies as "negotiated," not just FAR 15 contracts. See also the definition of "negotiated contract" in The Government Contracts Reference Book. So go to #2. There's a $700,000 threshold. Is your task order over or under that? If over, continue to #3. (And if it's under, I don't think there's anything stopping you from continuing to #3 if you think it's appropriate.) It applies when "services are to be provided which will require meaningful numbers of professional employees." Huh?? What is a "meaningful number"? This is why I say it's up to the CO. Any number can be considered "meaningful" or "non-meaningful" depending on perspective. This prescription is kind of ridiculous in this sense. Also, have you confirmed that these are "bona fide" professionals you're hiring, in accordance with FAR 22.1102? I've seen COs overlook this language, thinking the provision applies to all service contracts. In reality, it applies to only a sliver of the service contract pie. Last, I'll point out that the Provisions & Clause Matrix indicates that this provision is not intended for commercial services. So there is another discriminator if you're looking for wiggle room. So, if upon reading all of that, you think it applies, then it applies. But there's also a common sense aspect to this. Doing the evaluation required by this provision at the IDIQ level in a multiple award setting doesn't achieve much because the risks it is supposed to mitigate will return once the task orders are competed. That is, contractors may feel incentivized to under-compensate professional employees in order to win work. Unless this provision or similar price or cost realism language is in the TORFP, then they will have the flexibility to do just that. When you're contracting for services in a competitive environment, it's usually a good idea to include some kind of "realism" evaluation language in the solicitation to protect the Government's interests (even if it's just "optional" language). Whether you do that through 52.222-46 or custom language is up to the CO. Huh? Bob has written that Congress passes too many acquisition statutes. He's right. But that's not the biggest problem in acquisition today. The biggest problem is those members of the workforce who lack the simplicity gene. There are easier ways to make sure that prospective task order contractors will pay enough to attract high quality professionals than invoking the FAR 52.222-46 boilerplate and all that goes with it. I am criticizing you for answering a beginner's straightforward question with a bloated response likely to encourage him or her to do unnecessary work. A "thoughtful" comment would have included specific recommendations for a simple approach, an approach that would avoid the need for the price realism analysis that GAO requires with FAR 52.222-46. Now, you can go on about me if you like. You won't be the first. But at this point you aren't contributing to the analysis of the problem posed by the OP. You want to help others? Try describing a simple approach. Pass the salt, Pepe.
  13. I didn't retract anything. I used a britishism. Bob must have deleted it. I still feel the same way. Don't go back and quote stuff I said six years ago in different discussions. You don't write anything memorable enough to quote, and even if you did I wouldn't go back looking for it in an attempt to embarrass you. I don't do that to any of you, so don't do it to me. Deal with the ongoing discussion or get lost.
  14. No, no, no. The guidance about evaluating professional employee compensation has been around since long before 1992. The current language appeared in the very first edition of the FAR as published in the Federal Register in 1983. For deep background see GAO, Special Procurement Procedures Helped Prevent Wage Busting Under Federal Service Contracts in the Cape Canaveral Area, HRD-78-49, Feb. 28, 1978, https://www.gao.gov/assets/130/121756.pdf. And see Kingston, "The Service Contract Act of 1965: A Review," Air Force Law Review 1978: http://digitalcollections.library.cmu.edu/awweb/awarchive?type=file&amp;item=416461 Agencies have issued guidance about evaluating professional employee compensation since the late 1970s.
  15. The worst thing about 52.222-46 is the language of the provision itself: As Joel has pointed out, that language suggests that the provision applies to recompetes. Yet the prescription seems to apply it to any service contract that will employ significant numbers of professionals. There is no requirement to use the confusing boiler plate of 52.222-46. If you want to evaluate professional compensation under a prospective task order, write your own language. And don't go overboard. Keep it simple.
  16. I searched Westlaw for any GAO decisions that included both phrases "task order" and "52.222-46". I found a total of 23 such decisions, which included the two to which Carl provided links. The earliest was from July 1995 and the most recent was from June 2018. Of the 23, only seven were about task order competitions, including competitions under 16.505, FSS, GWAC contracts, and BPAs. Here they are: LOGC2, B-416075, Jone 2018 (FAR 16.5 protest; Army task order "RFTOP" did not include FAR 52.222-46; protest denied) Target Media Mid Atlantic, B-412468.8, June 2017 (Navy "Seaport" formal RFP; expressly invoked FAR 52.222-46; protest denied) Micro Technologies, B-413091.4, February 2017 (Air Force GWACS formal RFP; expressly invoked 52.222-46; protest denied) Micro Technologies, B-413091, August 2016 (same procurement as No. 3, above; protest sustained) Odyssey Systems, B-412519, March 2016 (Air Force "RFTOP" under GWACS; expressly invoked FAR 52.222-46; protest dismissed/denied) Systems Research and Applications, B-406775.3, April 2013 (Navy "Seaport" "TORFP"; expressly invoked 52.222-46; request for atty's fees; request denied) Belzon, B-404416, February, 2011 (Army "RFQ" against a GSA FSS BPA; FAR 52.222-46 not included in solicitation; protest denied) I searched those decisions for the phrase "negotiated contract." That phrase did not appear in any of those decisions. I do not see any justification for Carl's conclusion that "GAO considers RFP’s for TO that lead to an awarded contract are 'negotiated contracts'”. As far as I can tell, the GAO has never addressed the question of whether task orders are "negotiated contracts" as that term is used in FAR 22.1103, has never suggested that it thinks they are, has not ruled that they are, and has not indicated that FAR 52.222-46 necessarily applies to task order competitions under FAR 16.505(b) or any other task order competition procedure. If a CO invokes the provision, then GAO will consider whether the agency applied it properly. All the more reason not to invoke the provision.
  17. I agree that a check of professional compensation might make sense when issuing an order, but that was not the question.
  18. I disagree. FAR 15.000, Scope, says: You have to interpret regulations as a whole. The second sentence in the above quote explains the scope of FAR Part 15. It is not a definition of "negotiated contract" that applies throughout the FAR. There is no FAR-wide definition of negotiated contract. In that regard, see FAR 1.108(a), 2.101, and 52.202-1. While delivery and task orders issued pursuant to FAR 16.505 may be contracts as defined in FAR 2.101, I see no justification for saying that such orders are negotiated contracts as that term is explained and used in FAR 15.000 or used in FAR 22.1103. I don't recall anything in FAR 16.505(b) indicating that FAR Part 15 applies to the MATOC ordering process or that COs must comply with 22.1103 when providing a fair opportunity. So, absent other authority, any notion that FAR 22.1103 and 52.222-46 apply to MATOC orders because FAR 15.000 indicates that they are negotiated contracts is based on a false premise.
  19. It's simple. Look at the OP's question: The answer is no. FAR 22.1103 requires inclusion of FAR 52.222-46 in "solicitations for negotiated contracts." Such solicitations are RFPs. See FAR 2.101. FAR 52.222-46 is a solicitation provision. FAR 16.505(b) does not require the issuance of an RFP when giving offerors a fair opportunity to be considered for an order under a MATOC. COs only need issue a "fair notice." Nothing in FAR describes such notices as solicitations or requires that they be in writing. While COs may, and have, evaluated professional employee compensation when awarding task orders, there is no requirement that they do so, and if they do so there is no requirement that they cite FAR 52.222-46, which is much too formal.
  20. Oh, for Pete's sake. See FAR 22.1103. FAR 52.222-46 is a solicitation provision that is to be inserted in RFPs for new contracts. It has no bearing on fair opportunity procedures under FAR 16.505(b)(1). It does not apply when conducting competitions for task orders under MATOCs, which does not entail issuing an RFP, because it is not a new competition, but an order against an existing contract. FAR 16.505(b) does not require the issuance of a solicitation. FAR is a mess. You have to make sense of it. Professional employee compensations should have been evaluated in connection with the award of the underlying IDIQ contract.
  21. Tony has made a faulty analysis of the statement in question. I offered no proposition about general agreement. I offered a proposition about my belief. He need not accept any proposition of mine about general agreement, because I offered no such proposition in that post. The issue about my statement is not whether a general agreement actually exists. The issue is whether, in fact, I believe that there is general agreement. A secondary issue might be why I believe such a thing. In any case, Tony is not seeking the truth about anything I said in that post. He is angry with me and so is being antagonistic. I believe that nothing I could say would convince him of anything, so why should I try? That post is two months old, and Tony Bones is just a fictional entity created in order to conceal the true identity of someone who intends to be a perpetual provocateur. I believe that Tony's comment about "contractor friends" were inspired by another thread, in which Joel Hoffman said he wouldn't debate me about a DOD pricing policy because I'm a contractor. I believe that Tony's comment was inspired by what Joel said. In more than ten years of posting at Wifcon, no one had ever said anything like that to me before. Joel's stance was and is absurd. Why not debate a government policy with someone who feels that he would be negatively affected by it? Who better to debate it with? Since I now know that "Tony Bones" is an antagonist and not an honest debater, I won't satisfy his need for recognition by responding to him in future. He does not intend to be a substantive contributor here.
  22. @FrankJonYou''re right, FrankJon. My last two posts should have been addressed to FAR Flung 1102. I have edited them.
  23. Vern Edwards

    Proposal Preparation Costs

    What do you mean by "recently"? Within the last 30 days? When did you get it? What do you mean by "proposal"? Do you mean an invoice? Do you mean a claim as defined in the Disputes clause? Do you mean something else? What do you mean by "overrun"? Do you mean that the amount, when added to costs previously incurred, exceeds the amount covered in the Limitation of Cost or the Limitation of Funds clause? Do you mean just that the amount is higher than what they had previously invoiced? Do you mean something else? What do you mean by "request"? Do you mean an invoice or a claim? Something else? What do you mean by "untimely"? What was the deadline? Was it set by contract or by regulation? Do you mean the deadline in FAR 33.206 for the initiation of claims? Some other deadline? If you're going to think and ask about this, think and express yourself in official/contractual language. That will make your thinking and your description of the problem clearer to us. Otherwise, you're just going to get more requests for information and, perhaps, unreliable answers, if any. We can't tell whether you need a "reality check" until we know what you think the reality is.
  24. Vern Edwards


    I commend Carl for finding and providing a link to the article. Note that the article is dated 1998. In Spectrum Sciences and Software, Inc., ASBCA 49769, 00-1 BCA ¶ 30663, decided in 1999, the year after the article was published, the ASBCA denied the contractor's claim for an equitable adjustment based on the DoL's rejection of a proposed conformance. The decision was grounded in a clause in the pre-FAR Defense Acquisition Regulation (DAR), DAR 7-1905, Labor Price Adjustment. From the decision: Emphasis added. I have not done extensive legal research. A quick search found only three BCA decisions dealing with the issue. I found only one pertinent Court of Federal Claims decision, the Burnside-Ott decision mentioned in the article. The Court found for the government on all counts in that decision. The Federal Circuit overruled, apparently on procedural grounds, and remanded the case to the claims court. There has been no subsequent decision, so maybe the parties settled out of court. I don't know of any way to find out at this late date following the Federal Circuit's 2003 ruling. There is no indication that the board or the claims court decision has subsequently been overruled on the merits. So if, in fact, it hasn't been overruled, then lotus is "hosed," at least until he can find a lawyer who can win a case that makes new case law, perhaps based on mutual mistake. lotus needs legal advice and should contact an attorney.