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Vern Edwards

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Everything posted by Vern Edwards

  1. PP Neutral Rating

    In answer to that question: What can happen is that if you know that they do, in fact, have past performance, and if you can determine how well they performed, you can evaluate them on the basis of the information that you have, no matter what the source. You are not limited to the information that they provide. Are you familiar with the GAO decisions in that regard? See Al Raha Group for Technical Services, Inc.; Logistics Management International, Inc., B-411015.2, 2015 CPD ¶ 134: Now, read that carefully, because the GAO said that an agency is generally not precluded for considering any relevant information, regardless of its source. It did not say that the statements in the RFP were necessary. They were merely fortuitously reinforcing. Don't let anybody tell you different. In Paragon, cited in the quote, GAO said: Period.
  2. Well, let's get down to brass tacks. FFP LOE can be used effectively whenever the buyer has no end in sight, but still wants to look, so to speak. It can be used effectively when the value is in the effort, not the outcome. It can be used effectively in any endeavor in which the buyer wants the contractor to do something for a period of time and then report what happened during that time. Thus it can work effectively for certain kinds of basic research, natural resource exploration, durability or endurance testing, well digging (in which the LOE is measured in feet), law enforcement search or surveillance, wildlife tracking and observation, and many similar tasks. It can be used for such tasks when the cost of an hour of labor can be fixed at the outset and for the duration. FFP LOE can be used with options to buy additional hours (or other units of effort) if observations to date suggest that continued work might be fruitful of more good information. If the cost of an hour cannot be fixed at the outset, then a CPFF LOE is more appropriate. FFP LOE should not be used when the buyer wants a contractor to finish a job. I wouldn't use an FFP LOE for that, because if I remember my basic statistics correctly the amount of effort would be based on a predetermined sample size based on the size of the population and would should be known in advance. Moreover, the buyer wants an outcome--a statistic.
  3. Subcontract for Commercial Items - changes

    You want to declare the cost to be unreasonable because the prime did not adhere to rules that apply to the Government in its dealings with primes? Where is the clause that implements your policy? Who says that a private sector FFP subcontract is not subject to adjustment based on actual costs? That's a matter of negotiation between the prime and its sub. An FFP sub incurred additional costs and asked the prime to reimburse it, and the prime did, and you think that procedure--a procedure which would be anomalous between the Government and a prime under the FAR--makes the prime's cost unallowable as a matter of general principle? Based on what clause? Rule? Case law? That strikes me as something that a prudent business person might do under certain circumstances in the conduct of a competitive business. Look--we've already agreed that the CO can question the cost pursuant to the rules for allowability. What the CO ultimately decides is up to the CO. I don't think there's anything more to say.
  4. Subcontract for Commercial Items - changes

    Joel: Oh, please. The Government is acquiring something from the prime. The prime is buying something from the sub. There is no privity between the Government and the sub, and the rules in FAR 12.207 don't apply to the subcontract. To call your argument strained would be generous. And cost or pricing data is not the issue; it was part of one of your earlier premises. The issue is the reasonableness of the prime's costs.
  5. I was entirely sincere in my recommendations, and if you were clear in your expression of what you want to do, knew anything about contracting, and had any professional imagination whatsoever, then you would know that what I proposed are viable ways to achieve your stated goal--"as many... as possible." In what way are my suggestions inappropriate, improper, or illegal? You have not thought them through. What I suggested is procedurally not much different than what GSA effectively does under its FSS program and what agencies sometimes effectively do through broad agency announcements. You would get further capability and price competition at the task order stage. Moreover, the recommendations are virtually protest-proof, assuming that you don't screw up the determinations of eligibility and of conformity with material terms. A big assumption in your case. So much for innovation from a "streamline" CO. Your "team" will probably waste who knows how much time and taxpayer money reading and rating "technical" proposals looking for best value, only to have to do it again when awarding task orders. Do yourself a favor: Don't try conducting a source selection. As you explained, you have already failed at that. Just tell buyers to use one of the many vehicles already in existence and set orders aside for the socio-economic groups. Silly person, I gave you free advice that, tweaked by a thoughtful and imaginative professional, could make them a hero in their agency. You rejected it and tried to insult me simply because it has never occurred to you that such approaches could be made to work by a smart CO. Had your last post not been so foul you could have asked me to explain and elaborate. People who can't think and imagine should not attend forums for ideas. Now that I know more about you I am not surprised by your reaction. You can lead an ass to water...
  6. Don't conduct a competition. Just post the contract online, announce what you said you are looking to acquire, and give a contract to every eligible firm that wants one at the prices and rates that they want. If you doubt the legality of that, then issue a solicitation and award a contract at the offered prices without discussions to every eligible firm that submits an offer that conforms to the material terms of the solicitation.
  7. But it usually stands in for revenue until actual revenue happens.
  8. Subcontract for Commercial Items - changes

    If you're retired, why bother with an alias?
  9. Subcontract for Commercial Items - changes

    CO1559 said that the prime contract was cost-reimbursement. Presumably, the contract is not for commercial items. Can the prime/sub pick and choose? Yes, unless you can show something in FAR that says subcontracts for commercial items have to be FFP. The requirement for and exceptions to cost or pricing data have nothing to do with contract type.
  10. Subcontract for Commercial Items - changes

    There are no grounds for disapproving a subcontract for commercial items merely because it is cost-type. Cost-type contracts are used in the commercial world.
  11. Subcontract for Commercial Items - changes

    help: You don't know any of that to be the case! A prime and a sub conducted some loosey goosey transactions, rather typical in my experience as a businessman (I wish I could tell you about some of the transactions government and industry have asked me to undertake for the sake of their convenience). A knowledgeable CO would call the contractor and say, "What the hell was all that about?" listen to the explanation and perhaps ask that it be put in writing. The cost is not necessarily unallowable because it was not incurred in a manner consistent with ordinary practice. CO1559 appears to know about the tests or allowability in FAR Part 31. Therefore, the answer to his question is: Question the cost if you doubt its allowability on any of the five grounds, listen to the prime's explanation, then make a <bleep> decision. help: As for the FAR permitting cost-type commercial awards, the last time I checked, the rules in FAR Part 12 about the terms of government prime contracts for commercial items did not apply to contractor subcontracts. Has anything changed? What prohibits a prime contractor from awarding a contract for a commercial item on a cost-reimbursement basis? What in FAR 12.207 says anything about subcontracts?
  12. Subcontract for Commercial Items - changes

    That all strikes me as typical business conduct. It does not accord with the formalities and proprieties so often expected by Government employees, so it mystifies and confuses them. They reach for their FAR and get further mystified and confused. An experienced hand would have answered CO1559's questions simply and directly: Is it correct to question the price increases? Sure, if you want to, and if it's a lot of money, why not? Ask them about it. See what they say. If their story makes sense and if the money seems okay, then reimburse them and move on. Otherwise, refuse to pay and see what they do. Does the situation convert a fixed-price contract to a cost-reimbursement contract? Of course not. Case closed. But this is a Wifcon thread, and so it goes on and on and... What are we teaching the kids?
  13. Subcontract for Commercial Items - changes

    Not really. All costs for which the prime wants to be reimbursed must be reasonable, but if the prime is willing to absorb the difference between a reasonable amount and the cost actually incurred, it is free to do so.
  14. I presume that TA is an abbreviation for teaming agreement. The sub probably wants to see what the prime included for the subcontract in its proposal to the Government. Probably wants to see if the prime's proposal is consistent with the b.s. the prime's been feeding them. I'd want to see that, too, if I were the sub's negotiator. I have no ideas for alternatives.
  15. I notice that the parent lets the subsidiary buy simple, bulk items like sheet metal, fasteners, and raw materials and retains control over the purchase of manufactured items. Could the parent be concerned about quality assurance?
  16. You want us to speculate as to the reason for the policy? Is there no one in your company who can explain the reason?
  17. Court Order and the FAR

    Bottom line: a court will not knowingly order or expect an agency to violate statute or regulation, unless it rules that the law or regulation itself is a violation of the law. That is not going to happen with regard to an ordinary acquisition rule. Interesting articles about Government compliance with court orders; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2907797 https://www.bafirm.com/publication/federal-contempt-of-court/
  18. Court Order and the FAR

    There is no basis in law for that theory. Even if the court had ordered the Government to award a contract for the service, it would not order the agency to do so in violation of statute and regulation. There is no loophole. Besides, a psychiatric evaluation shouldn't cost more than the micro purchase threshold unless the person being evaluated must be hospitalized. How long can it take to make an award for that? Please.
  19. Court Order and the FAR

    I think you meant imposed. You got a court order. Don't you have a lawyer?
  20. You can use an FFP-LOE for anything if you can get permission. But the intended use is for R&D, to devote a certain number of hours to the study of something and report what you found out.
  21. I did not envision the CO licensing and positioning scheme that I described as an alternative to a COR certification program. COR certification is a separate matter. COR certification has largely failed simply because agencies did not really commit to it. COR is considered an "other duty as assigned," not a professional specialty. Acquisition management is a failure in most agencies. Although the term "acquisition" applies broadly to multiple agency functions, I think most people see it as the "contracting" function, and the contracting function in many agencies is held in no higher esteem than the personnel function. Both are considered necessary evils: They are not one of us. Ya gotta have 'em to do the paperwork, but ya don't have to like 'em.
  22. Under the new FAR rules, which are based on the long-standing DFARS rules, "blended CLINs" are impermissible. See FAR 4.1003(e).
  23. Putting COs in centralized contracting offices is efficient for the purpose of processing large numbers of diverse requisitions and relatively small acquisitions. But in some agencies and bureaus within agencies it isolates COs from the organizations that they serve, especially when COs are located remotely from those offices. Thus, COs may be seen as outsiders and obstacles--"staff weenies." I think that the ideal scheme would be for contract specialists to apply to an independent appointment office for competitive contracting officer appointments. Appointments (licenses) to conduct specified categories of non-commodity, non-simplified acquisitions would be made on the basis of experience, past performance, a written exam, and an oral exam. A CO could apply for a general or specialty license. PMs would advertise open CO positions. A licensed CO could then apply to program managers for employment. Contracting authority would be delegated by agency heads to PMs, who would sign and be bound by a Code of Contracting Ethics, and each CO would be an agent of their PM and report directly to the PM they serve, not to contracting "staffs." There would be no contracting office or chief of the contracting office within a program. That would cut a layer of bureaucracy. Each CO would conduct his or her own "practice." Each CO could hire one or more contract specialists and appropriate clerical support. This is only for the big buys, not commodity buys. COs would be required to meet annual continuing education requirements. A PM could "fire" a CO from the program, but not from the Civil Service. The independent licensing board would investigate all accusations of CO incompetence and misconduct. Only the board could terminate a CO's license. A CO who had been fired from a program office would have to seek employment in another program office or in a centralized contracting office doing commodity buying. A CO who lost their license might be fired from Civil Service or limited to working as a contract specialist. This would be similar to the system used to license many professionals, such as architects, physicians, and attorneys. COs would manage their careers based on performance, reputation, contacts, and recommendations. Putting COs in the program offices they serve could greatly improve acquisition planning and processing. It could increase the likelihood that COs could actually be "business managers" or "business advisors." While that's my ideal, I acknowledge that it is not widely practical. It would work best for big program offices conducting major system acquisitions, or programs that specialize in only one kind of acquisition, such as IT support, and that do large acquisitions for other than "commodity" supplies and services. It will never happen. So don't worry.
  24. FFP SCA Change in contract hours

    IAD: FAR 52.243-1 is not for construction contracts, FFP or otherwise. The proper clause for FFP construction contracts is FAR 52.243-4. See FAR 43.205(d). The discussion in this thread is pointless, because the resolution of the issues you have asked about rests on the terms of the contract, which we have not seen. If we cannot see the contract, then we cannot form intelligent opinions, and speculation is futile. You have consulted your lawyers. Rely on them.
  25. You have just identified two of the biggest sources of problems in contracting, which have arisen in part from (1) the centralization of contracting officers in "contracting offices" and (2) the rules of competitive negotiation as interpreted by the GAO. COs, except commodity buyers, should be located in program offices and work for program managers. I have always thought that to be a better arrangement than consolidating contracting operations within central contracting offices. I have never liked working for a "chief of the contracting office." I know all the arguments pro and con, but would stiff prefer to work for and be evaluated by the program office for which I am negotiating and administering contracts. However, COs should be "licensed" (appointed) by independent agency staff offices in order to ensure their integrity and compliance with the law. The rules of competitive negotiation under FAR Part 15, as interpreted by the protest tribunals, effectively discourage communication and real bargaining between buyer and seller during contract formation. When the Government awards contracts pursuant to Part 15, buyer and seller very often are virtual strangers who have never really "discussed" the terms of the massive RFPs that agencies issue. We are long past time to rethink the Competition in Contracting Act.