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Vern Edwards

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Everything posted by Vern Edwards

  1. Vern Edwards

    contractor seeking advice on contract type

    And, oh, by the way, as OFPP administrator I would try to establish "acquisition academies" at four universities with schools of business and public adminstration in four regions of the U.S. The classroom program would be two years in length and include summer internships doing work other than simplified acquisitions or routine orders against existing contracts. I would seek the elimination of FAI and DAU. I would give scholarships to qualified applicants in return for a binding commitment to work for the government for three years after graduation. The program would not be run or managed by private training contractors.
  2. Vern Edwards

    contractor seeking advice on contract type

    I agree that implementation would be a challenge, but so was going to the moon, and we did that successfully. So the challenge is not unmanageable. Keep in mind that my post applies only to COs with unlimited warrants. How many of those do we really need? In any case, I have written before that we need to restructure the contracting workforce, and any new policy about CO appointments should be part of a comprehensive program of workforce reform. The issue in not whether COs take their jobs seriously. I think that the overwhelming majority do and that they work very hard. That is not the problem. The problem is whether they are sufficiently well qualified, educated, and trained. I also agree that there will always be mistakes, but a more qualified workforce would, in my judgment, make fewer of them. However, the problem is not simple mistakes. The problem is bigger than that. For example, many of our problems today can be traced to an excessively complex, time-consuming, and resource-intensive source selection process. I believe that we cannot fix that problem with the COs that we have now. They simply don't know enough or have enough prestige to fix it. As for oversight--no, I don't think my program would reduce oversight. This is government we're talking about and government needs a lot of oversight. Why should anyone in a democracy want reduced oversight? I didn't trust the government when I worked for the government. Think Department of the Interior, Minerals Management Service. Oversight is not the problem. The problem is what oversight finds. I think all the whining about oversight is just that: whining. Anyone who can't stand oversight should leave government and go to work for a privately held (unlisted, unquoted, close corporation, private corporation) company. Of course, if you work for one of those outfits they fire your a-- if you don't know what you're doing, and there ain't no appeals.
  3. Vern Edwards

    contractor seeking advice on contract type

    At a minimum, in order to qualify for an unlimited warrant (i.e., to be a "super" contracting officer), a candidate should be tested for knowledge of the following: Organization of the federal government Organization of the laws and regulations Fundamentals of economics Institutional structure of the U.S. economy U.S. industrial structure Fundamental business concepts and practices General business law Federal appropriation processes and law Federal Acquisition Regulation (basic knowledge and ability to interpret and apply) Other sources of acquisition rules Key acquisition processes Acquisition roles and responsibilities Specific procedural rules (i.e., incentive contract design, source selection, contract pricing, contract funding, contract modification, claim management, etc.), including basic knowledge of relevant case law The test should be developed by a joint government/industry committee, and they should develop more than one version--at least four. It should be a combination of question/answer and essay, much like a bar exam. The test should be administered on a quarterly basis at different locations in the U.S. and overseas. Anyone who fails the test by more than a certain margin should be required to wait one year before taking it again. The test should be open to both current and prospective government employees. CO candidates should also be tested for the ability to write and speak. Candidates should be required to submit a 5,000 word essay on a contracting topic selected by the appointment authority. The paper should be graded, and qualified candidates should then be required to answer questions about their paper before an oral board, which will grade the candidates for reasoning ability, knowledge, judgment, and general oral communications skill. All grading standards should be established by OFPP and apply government-wide. In addition, CO candidates, like contractors, should be qualified and evaluated on the basis of breadth and depth of relevant experience and past performance. Minimum experience requirements would not be stated in terms of a number of "years," but in terms of the number and nature of contracting projects worked. Candidates should be permitted to qualify for an unlimited warrant before a specific position becomes available. Once qualified, they should be eligible for a position in any agency, but still be subject to competitive selection procedures, including personnel interviews. If they do not get a position within two years of qualification, they should be required to qualify again. These would be requirements only for unlimited warrants. I would impose lesser requirements on candidates for dollar-limited warrants to conduct procurements using other than simplified acquisition procedures.
  4. Vern Edwards

    contractor seeking advice on contract type

    Carl: Did I say that people are getting warrants without a proper waiver? If so, when did I say it? If not, who did say it? In any case, the DAWIA/FAC-C requirements don't amount to much. To be DAWIA/FAC-C Level III qualified you must (1) have a bachelor's degree with 24 semester units of business classes, (2) have four years of unspecified "experience," and (3) have taken prescribed DAU courses. I don't think that amounts to much. By comparison, in order to become a lawyer in New York you must qualify to take the bar exam. Here are the qualification requirements: http://www.nybarexam.org/Eligible/Eligibility.htm#A. You must then pass the bar exam. Here is the description of that exam: http://www.nybarexam.org/TheBar/TheBar.htm#descrip By contrast, you can be DAWAI/FAC-C qualified to have "unlimited" authority to do one of the most complicated jobs in the world and to obligate the government to pay very large sums without having passed any kind of exam. You don't have to prove that you know the rules and can do the job in order to be eligible. Bottom line: the DAWIA/FAC-C requirements don't amount to much. Are they better than nothing? I would not say so. Personally, I don't think the 24 units of business classes are necessary. Do formal requirements a better CO make? Yes, if they are rigorous. I don't consider DAWIA/FAC-C to be sufficiently rigorous.
  5. Oh, I'll respond to anything.
  6. Vern Edwards

    contractor seeking advice on contract type

    The statutory and regulatory floors for warrant status mean nothing to me. I know the warranting process of several agencies. I meet more COs in the course of a year than most people in our business--many more than the administrator of OFPP, and I spend time with them and get to see what they know and can do. A "positive education requirement" means little. A degree proves nothing about what a person knows and can do. It just means that he or she attended enough classes and gotten enough passing grades to earn a piece of paper. DAU training does not prepare one to be a contract specialist, much less a CO. The training is generally of very poor quality. Experience is a meaningless term without further explanation. It is meaningless to talk about the number of years that a person has worked as an 1102 unless you know what that 1102 did during that time and how well he or she did it. The warranting process is discredited and I think it should be so. It depends too much on individual office culture and management competence. There should be rigorous governmentwide standards, rigorously applied. Beyond the statutory and regulatory minimums, there should be demanding standards for knowledge and for skill. There should be standards for reasoning ability and for communication skill (speaking and writing). The best way to judge the warranting process is to judge the people with warrants. Each and every one of you can do that for yourself, assuming that you know enough to do so. The warranting process cannot be defended on grounds of formal requirements. Formal requirements do not a CO make, unless your standards are low.
  7. Vern Edwards

    contractor seeking advice on contract type

    I didn't say that any law or regulation is "trifle." So I don't know where you are coming from on that. I said that the current rules are not enough, and they aren't, and there is plenty of merit to that. In any case, there are plenty of trivial laws and regulations. I also don't know where you're coming from on the exam thing. I did not say that taking an exam would be enough. The bar exam and the CPA exam come after several years of intensive education, education that at a good school is far superior to anything offered or even thought of by DAU. I have written before that there should be a CO academy for qualified candidates, and that the courses should be as rigorous as any at a good graduate school of business. I know that several agencies conduct put CO candidates through oral interviews. I don't know if they rise to the level of "exams." I don't know of any that require CO candidates to take a written exam, but there may be some. Any such orals or written exams are not enough. There should be a common, governmentwide standard, and a high one, since anyone who gets a warrant at one agency is likely to be considered qualified to get one at another agency. And the exam should be rigorous. If no one ever fails such an exam, then the exam is too easy. There should also be a requirement to be able to write analytically and speak extemporaneously. You said: "My post was to point out this exactly in that the discussion in this thread intentionally suggests, from my read, that a prospective CO does not take a exam, does not go before a board, gets a warrant just because they are GS-X , or because one is handed it on a silver platter." I don't know who said those things. Not me. I asked Crazy KO how he/she got his/her warrant, but never got an answer. I honestly wanted to know. I was not suggesting that he had not been through an oral or written examination. I don't know of any requirement for a CO to "prove" on a two-year basis that they should retain their warrant. What I do know is that if that is true, then the proof does not amount to much, since I see an awful lot of COs who don't know enough and can't do enough. So, if you're mounting some kind of defense of 1102s, spare me. There are many first-rate people in the workforce, but there are many who are not up to snuff. They are not bad people, and if properly educated and trained many of them would be first rate. The fact is that the system has failed the very best of them. In my experience, morale and effectiveness have always been highest in organizations that demand a lot from their members. Fewer people will qualify to be members of such organizations, but the ones who do are elite and will move the planet for you. At present, the public does not think that the government is competent or trustworthy. Almost no one things well of government contracting. If I could have my way, that would change: COs would be depended upon, respected, and even admired; morale would be high, the quality of the work would be first rate, and the very best candidates would kill to get into the workforce and once in would stay there. I'm not happy with the way things are and I want to change it. My motto: Destroy the status quo and all who defend it.
  8. Vern Edwards

    contractor seeking advice on contract type

    I'm not sure what all of that in the last post was about. I will say this: Training, experience, and meeting a "positive education requirement" is de minimis. It is not enough. Not nearly enough. The notion that passing a DAU class qualifies anyone for anything is laughable. Let's not have any misunderstanding or innuendo. I will say it straight out: Too many unqualified people have received and are receiving warrants. As for the morale of the acquisition workforce, it would be better if CO appointment standards were raised to a truly professional level and periodic requalification were required. It should be at least as hard to become and stay a CO with "unlimited" authority as it is to become and stay an attorney or a certified public accountant. Given the breadth of CO responsibilities, it should be harder.
  9. Vern Edwards

    contractor seeking advice on contract type

    See DFARS 201.603:
  10. Martin Marietta Corp., 87-2 BCA ? 19875, ASBCA No. 31255, reconsid. denied, ASBCA 31255, 88-1 BCA ? 20422. You'd better be careful about what you do with this information. The decision is old. There is more recent litigation about the matter that goes all the way to the 4th Circuit, and there is a lot of commentary. You might want to see the article by Steven Briggerman in the May 2009 edition of The Nash & Cibinic Report, entitled, "New DCAA Guidance: "Denial Of Access" And Audits Of Internal Control Systems."
  11. Vern Edwards

    IDIQ FFP Contract

    Are you asking how to set contract prices? If not, can you rephrase your question in a way that will tell us what you want to know?
  12. Vern Edwards

    contractor seeking advice on contract type

    Great! So, neither of you knows what you are doing!
  13. Vern Edwards

    contractor seeking advice on contract type

    How did you get your warrant? Did you have to go before a board? Did you have to take an oral or written exam? Did someone in authority simply decide that you should have it? In my experience--and I see more COs in a year than most people--COs know local policies and procedures, but their knowledge of acquisition is not broad or deep. In some agencies, almost every 1102 has some kind of warrant. I know COs with unlimited warrants who would tell you that they don't know the FAR well.
  14. Generally, if all you are doing is deleting a data item from a contract data requirements list, and you are not deleting the statement of work task(s) that produced the information that was to be contained in the item, then the equitable adjustment should equal the price (cost and profit) of (1) collating (but not obtaining or creating) the information that was to be included in the document, (2) formatting/typing and editing the document, and (3) printing and distributing the document in draft and final form--in short, the cost of preparing information for publication and publishing it. For more general information about pricing data items, see DD Form 1423, Instructions, Item 17. For detailed information, see DOD 5010.12-M, Procedures for the Acquisition and Management of Technical Data, Ch. 5, "Pricing of Data." The fundamental concept is "over and above." as explained in DOD 5010.12-M, C5.2.1: For pricing purposes, DOD 5010.12-M paragraph C5.3.3 and DD1423 group data items as described below: Your program unique spec, if based on MIL-STD 961E, is probably in Group II, but that ultimately depends on the S.O.W.
  15. Vern Edwards

    Wallowing in the FAR

    Those of you who have read what I have written over the years know that I think Steve Kelman was the best Administrator of Federal Procurement Policy that we have ever had. He had more effect on the acquisition process, mostly positive, than any Administrator before or since. But he recently wrote something in his April 8 column in the online edition of Federal Computer Week that distressed me. The entry is entitled, ?Keep your contracting staff in the loop,? and it urges program offices to include their contracting offices in their early planning and in the development of their ?procurement packages.? Here is the first sentence of the fourth paragraph of the column: http://fcw.com/articles/2010/04/12/comment...g-officers.aspx What has upset me is the disparaging phrase: ?wallowing in Federal Acquisition Regulation provisions.? Contracting officers are charged with ensuring that acquisitions are conducted in accordance with law, regulation, and policy. See FAR 1.602-1( : A CO can be held personally responsible for knowingly violating the rules when conducting a contract action. See John Martino, Comp. Gen. Dec. B--262168, 96-1 CPD ? 256; 1996 WL 283964: The CO had exercised an option to buy additional quantities of supplies needed by the user and deliberately did not bother to check the market price before doing so, as required by FAR. As a result, the agency paid too much for the supplies. The amount taken from the CO?s retirement fund was $88,040. I do not know why the CO didn?t check. Perhaps he knew that checking the market would take time and might have revealed that the option price was too high, which it was, and which meant that the CO would have had to conduct a new procurement or get approval to negotiate a new price without full and open competition. Maybe the CO chose not to wallow in the FAR because it would have inconvenienced the user, so he took the easy way out. If that's what happened it was a bad call, because it cost him 88 grand out of his own pocket. That's a big price to pay to support a user that maybe hadn't planned properly. Talk about customer service! When I look in my dictionary I see that the verb wallow is defined as ?to luxuriate; revel.? I don?t know why anyone would want to luxuriate in or revel in the FAR. I urge contracting people to know it and know it well, but I don?t urge them to celebrate it. The thing is a mess. But it?s a fact of life and failing to accept that can lead to trouble. Among other things it can lead to more regulation. On the other hand, knowledge of it can reveal ways to streamline and accelerate the acquisition process. We Americans have a peculiar relationship with regulations. We are ready to hang an official who violates one that is personally important to us, but we sneer and rail at those who insist upon following regulations that inconvenience us and that we consider petty. Paul Hein summed it up as follows: "Are we fools for obeying rules? Absolutely, yes ? and no. I am firmly committed to both sides of the question. On the other hand, are we fools to make rules? Without a doubt, except sometimes. Again, I am securely and comfortably ensconced astride the fence." My attitude is that I'll play any game, just tell me the rules so we can get on with it and quit standing around. I want COs to know those parts of the FAR that govern their procurements so that they can get things done. Anyone who knows the FAR well knows that it is not as restrictive as ignorant people make it out to be. For instance, nothing in FAR Part 15 requires COs to conduct source selections in the mind-numbing, resource-intensive, time-consuming, costly ways in which they so often do it, and knowing the rules well enables me to come up with ways to pick the contractor, award the contract, and get on with the job in the shortest time possible and with the least unnecessary expenditure of human resources and money. COs shouldn't read the FAR in order to find a way to say no or to make a power play. COs should read the FAR in order to secure the objectives of their clients efficiently and effectively while operating within the bounds of the law. What does ?knowing the FAR? mean? First, it means knowing what kinds of content are in the FAR. The FAR contains (1) rules, (2) guidance, and (3) solicitation provisions and contract clauses. Second, it means knowing how to find the specific rules, guidance, provisions, and clauses that apply to particular issues and problems. Third, it means know howing to read the FAR, which is not the same as reading a novel or history book. Reading regulations entails a special kind of reading that requires a very high level of attentiveness and, very often, sentence by sentence and even word by word analysis. Finally, it means understanding what the FAR means, which is not necessarily the same as knowing what it says, and which is often impossible without an extensive knowledge of case law. Consider two FAR passages: 15.306(d) and 52.243-1( . It is easy enough to know what they say, but it is very hard to know what they mean unless you are familiar with the decisions of the GAO about discussions in source selection and the decisions of the boards of contract appeals and the federal courts about equitable adjustments. Those two passages have spawned countless pages of decisions and analysis. Only a pro can really understand them. While I don?t luxuriate or revel in the FAR, I do wallow in it, metaphorically speaking, in another sense: I read certain parts of it a lot. For example, I reread Part 15 constantly. Why? So I can know the rules about conducting negotiated procurements. Why? So I can things done in compliance with the law and without doing things that are not necessary, and so I can do what FAR 1.102-4(e) says that contracting officers should do: "take the lead in encouraging business process innovations and ensuring that business decisions are sound.? I?ve had a long career and a very successful one. Knowing the FAR (and, before it, the DAR and the ASPR) hasn?t hurt me one bit. Program managers loved me. I was a very "let's get on with it" kind of CO. I didn't say no very often, so people took me seriously when I did, and they didn't worry because they knew I'd figure something else out. Oh, and neither I nor any of my bosses ever got into trouble over one of my contract actions. Knowledge is influence. Influence is power, the power to get things done. So wallow in the FAR. It's the professional thing to do.
  16. Vern Edwards

    Wallowing in the FAR

    Thanks, Murphy. For what it's worth, I don't think there is much "senior leadership" in acquisition anymore. Or junior leadership, for that matter. By and large, leadership, especially in contracting, is pretty much nonexistent.
  17. Vern Edwards

    Program folks requesting Quotes

    When the program staff asked for the estimate from the particular vendor, did they give the vendor an advance copy of the specification or statement of work? Did the vendor suggest changes that would improve quality or reduce costs? If so, did the program staff accept those recommendations? Asking a particular vendor for an estimate and then sending that estimate to the contracting office is not my idea of "market research." Moreover, depending on the nature of the procurement and the circumstances, disclosing the government's statement of work to a particular vendor in advance might not be everyone's idea of conducting business with integrity, fairness, and openness. See FAR 1.102-2( c). While FAR 15.201 encourages early exchanges with potential offerors, it cannot be read to encourage exchanges with only a particular prospective offeror to the exclusion of others. Lacking details (and not wanting them), I won't say that the program staff did a bad thing, but they need to understand that the integrity of the contracting system and of the conduct of a particular acquisition requires discretion and prudence. Frankly, I suspect that the program staff were either incompetent or too lazy to develop an independent estimate of their own. I also suspect that they went to the particular vendor because that's the one they want and expect to do business with. That approach to doing things is not "market research."
  18. Vern Edwards

    Cost or Pricing Data

    Your post is confusing. I assume that the contract is cost-reimbursement. I also assume that you are not changing the statement of work and/or specification, but making an adjustment to the estimated cost under the Limitation of Cost clause or to the estimated cost or funds allotted under the Limitation of Funds clause in recognition of a cost overrun. If that is what you are doing, then you are not required to obtain (if you are the government) or submit (if you are the contractor) cost or pricing data. I don't know what you mean by an "overrun proposal." What is that? Is the contractor proposing something or is it reporting or estimating the amount of an overrun? What are you negotiating? The only thing that I think you could be negotiating is whether a cost is allowable pursuant to FAR Subpart 31.2 or your indirect cost billing rates. You are not required to obtain or submit cost or pricing data for that purpose. If, on the other hand, you are negotiating some change to the statement of work and/or specification, and the contractor is proposing an equitable adjustment, then you may have to obtain or submit cost or pricing data in accordance with FAR 15.403. However, I am not sure that I understand what you are doing. What do you mean when you say, "This overrun was incorporated into a mod subject to downward negotiations at time of definitization"? What do you mean by "incorporating"? What were you definitizing? You don't definitize overruns. Downward adjustments for what?
  19. Vern Edwards

    Another Phase In/Transition Scenario

    Taking your question literally: Sometimes a phase-in period is helpful or even necessary. Sometimes it's not.
  20. Vern Edwards

    Allowability of Airfare

    That's the most on-the-money response to a question that I have read here in quite a while. Kudos, here_2_help. Five-by-five. No one could have said it better.
  21. Vern Edwards

    Competitive RFP with Directed Sub

    I know of no statute or regulation that expressly addresses directed subcontracting one way or another. FAR Part 6, which implements the Competition in Contracting Act, does not apply to subcontract awards, see FAR 6.001, so agencies need not prepare a J&A when directing award of a subcontract to a particular firm. I know of no rule or decision to the effect that directed subcontracting is a form of brand name specification. All the same, a wise CO will document the file to explain why it is necessary to direct a subcontract to a particular firm. See Feldman, 03-03 Briefing Papers 1, "Subcontractors in Federal Procurement: Roles, Rights & Responsibilities." See, too, Valentec Sys., Inc., Comp. Gen. Dec. B-270880, 96-1 CPD ? 231. Prime contractors do not have to obtain full and open competition when awarding subcontracts. They need only seek competition to the "maximum practical extent." See FAR 52.244-5. See also Feldman, cited above. As a general rule, GAO will not entertain protests about subcontract awards. See 4 CFR ? 21.5(h). If a prospective offeror wants to protest directed subcontracting it would have to do so on the grounds that the prime contract specification is unduly restrictive. In that case, the agency would have to show that its requirement is reasonable. When an agency directs subcontracting, it must ensure that all offerors are evaluated on a common basis. See Feldman, Government Contract Awards: Negotiation and Sealed Bidding, ? 3:60: This is done by establishing a "surrogate price" for the subcontractor, so that offerors won't be prejudiced if the subcontractor proposes a different price to different offerors.
  22. Vern Edwards

    OMB to GAO: Get lost!

    Don, Here is OMB's direction: Emphasis added. Here is what you said: Emphasis added. Now, you may want to split hairs about what you said, but I say that you advised COs to ignore OMB's memo, which tells them to adhere to the parity policy, and to apply the priorities prescribed by GAO instead. But I won't argue it with you. I will let the other readers decide for themselves what you advised. I will believe you if say that what you said is not what you meant. I'm not quarreling with your opinion about OMB's advice. I'm quarreling with the advice your opinion prompted you to offer.
  23. Vern Edwards

    OMB to GAO: Get lost!

    Okay, so the government has rights (although "powers" seems more appropriate, but whatever), which means that the Executive Branch has the right to disagree with the GAO and reject its bid protest decisions and to appeal a decision of the COFC. I'm happy.
  24. Vern Edwards

    OMB to GAO: Get lost!

    Keep in mind that OMB and DOJ have not said that a procurement cannot be set aside for HUBZones or that they must be set-aside for 8(a)s or SDVOSBs. They merely say that, GAO and COFC decisions notwithstanding, COs have have discretion to decide what kind of set aside they will make. COs need not go looking for trouble, but if the agency needs dollars in a non-HUBZone category in order to meet goals, they can decide what's best to do.
  25. Vern Edwards

    OMB to GAO: Get lost!

    This is not shameful. This is merely one of the disputes that arise in Government from time to time and that will be worked out, one way or another. Either the Federal Circuit will rule, Congress will change the law, or both. Any contracting office that cannot figure out how to deal with this is run by idiots. Shay Assad cannot "square off" with GAO. GAO's disagreement is not with Assad, it is with OMB.
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