Jump to content
The Wifcon Forums and Blogs

Vern Edwards

Members
  • Content count

    7,187
  • Joined

  • Last visited

Posts posted by Vern Edwards


  1. 20 hours ago, napolik said:

    What would one do in this scenario?

    A Fed agency covered by the FAR issues a solicitation calling for transportation services. The SOW includes a spec for the motor vehicles. The award will be made on a tradeoff basis. Quality of the motor vehicle is an evaluation factor.

    Contractor X will compete relying on a subcontractor to furnish the motor vehicles. One subcontractor,  Luxurious Imports Inc. (LMI) furnishes Mercedes. The other subcontractor, Cinque Cento (C2 )motors, provides Fiat 500s. Both meet the solicitation spec requirement. 

    Since the source selection will be a tradeoff, X proposes LMI vehicles. Later, after dispute breakouts our between X and LMI, X decides to use C2..

    Is X required to notify the contracting officer that it will provide Fiat 500s instead of Mercedes? 

    Two questions:

    1. You say that the source selection will be a tradeoff. How will the government evaluate the cars? Will it look to see only whether a proposed car meets the spec or will it evaluate the cars on other value-adding attributes, as well?

    2. What will the contract say? Will it retain the spec in the solicitation or will it specify the car by make and model?


  2. On 10/17/2017 at 2:51 PM, govt2310 said:

    I remember seeing somewhere, maybe in a GAO decision now lost, that the FAR requires an offeror to notify the agency of the unavailability of a proposed key personnel, even after submission of proposals. But I can't find this in the FAR (I was mainly looking through FAR Part 15 and FAR 52.215-___).  Can anyone tell me where it says this in the FAR?

    As has previously been stated, FAR is silent on the matter. We have to think about this like contracting practitioners, not just as bureaucrats. Think contracts. Think offer and acceptance.

    What information did the agency ask for in its RFP?

    Did the agency ask the offerors to describe the key personnel that they are offering (promising) to employ under the contract or did it ask the offerors merely to describe the key personnel that they currently employ or that they plan to employ under the contract? Do you see the distinction? One description is prospectively contractually binding, while the other is not.

    If the agency asked offerors to describe the key personnel that they are offering (promising), and if after the submission of offers an offeror finds that it is no longer able to offer (promise) one or more of those persons, then it had better notify the agency and ask for the opportunity to revise its proposal. If it doesn't, and if the agency accepts its offer, then it will breach the contract on Day One. If denied the opportunity to revise its proposal, then the offeror had better withdraw its offer.

    If the agency asked offerors merely to describe the personnel that they intend or plan to employ, but did not ask them to make promises in that regard, then there should be no inherent legal obligation for offerors to notify the agency of changes in key personnel since proposal submission, unless the RFP instructed them to do so. I'm not sure what the GAO's stance is in this regard. The case cited by napolik had to do with task order proposals under a MATOC, which may involve different implications than proposals for new contracts.

    Agencies must think things through. Why do they want information about key personnel? Do they want promises about what persons offerors will employ or do they want indications of the general quality of offeror employees? It would be stupid to ask for promises, unless the acquisition is for R&D and the agency is going to make its pick primarily on the basis of the relative merits of offerors' principal investigators. In that case, offerors should and might obtain prospectively binding offers for subcontracts with prospective principal investigators in order to bind them to work under the contract. Otherwise, employees come and go and they die, and an offeror would be stupid to promise someone on the basis of simple employer/employee relations. 

    Allowing an offeror to revise its proposal in the event of a change in key personnel would entail discussions, not clarifications. Once notified of a change, the agency must think about how to evaluate the proposal, whether to conduct discussions, and whether to include the offeror in the competitive range. Agencies should think about the possibility of key personnel changes between proposal submission and award and decide in advance what such changes would mean, if anything, in terms of offer and acceptance and how they would handle them.


  3. 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.


  4. 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.


  5. C Culham:

    On 10/6/2017 at 6:32 AM, C Culham said:

    Overall, I am just a little concerned that all the facts are not known because requesting a contractors market pricing quote for a GSA buy seems a little strange to me when one can simply look at their pricing by reviewing their schedule contract.

    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.


  6. 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.


  7. 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. 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:

    Quote

    Objective 

    We evaluated Defense Contract Management Agency (DCMA) actions on DoD contractor business system deficiencies reported by the Defense Contract Audit Agency (DCAA). Our primary objective was to determine if DCMA complied with applicable Defense Federal Acquisition Regulation Supplement (DFARS) requirements. For example, we evaluated DCMA contracting officer actions on accounting system deficiencies for compliance with: 

    • DFARS clauses 252.242-7005, “Contractor Business Systems,” and 252.242.7006, “Accounting System Administration” and 
    • DFARS Procedures, Guidance, and Information (PGI) 242-7502, “Contractor Accounting Systems and Related Controls.” 

    As part of the evaluation, we randomly selected 21 of 164 DCAA business system deficiency reports issued f rom July 2012 t hrough June 2013. See Appendix A for a discussion of our scope a nd methodology. This is the second of two reports we issued on DCMA contracting officer compliance with the DFARS requirements relative to contractor business systems. Our first report addressed an evaluation of DCMA contracting officer actions on reported DoD contractor estimating system deficiencies. This report addresses our evaluation of contracting officer actions on other contractor business systems, including accounting, billing, and material management and accounting systems.

    ***

    Contracting Officers Did Not Comply With DFARS Requirements and DCMA Policy 

    For all 21 DCAA reports we evaluated, DCMA contracting officers did not comply with one or more DFARS requirements. Each DCAA report outlined significant business system deficiencies that impacted DoD’s ability to rely on information produced by the system. DCMA contracting officers did not take appropriate or timely action to address the significant business system deficiencies DCAA had reported. 

     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. Quote

    GAO found that in fiscal year 2016, DCAA averaged 885 days from when a contractor submitted an adequate incurred cost proposal to when the audit was completed. The lag was due to limited availability of DCAA staff to begin audit work, as it took DCAA an average of 138 days to complete the actual audit work....

    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. 10 hours ago, here_2_help said:

    I don't see any imperatives in the quote above. In my opinion, the FAR language gives the CO discretion. If agency policy takes away that discretion, then that's a problem. If the CO has discretion but uses it poorly, that's a problem.

     

    10 hours ago, here_2_help said:

    I would start by empowering the CO and then holding the CO accountable. I realize the PM has a critical role to play, so I would hold the PM accountable as well.

    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."


  11. 19 hours ago, here_2_help said:

    In the 20 year-old anecdote that you put forward to justify the status quo, the fault was the CO. Instead of negotiating the CO relied like a crutch on DCAA to tell them what to do. ("... C&P data required some level of DCAA blessing before we could conclude negotiations.") No, it didn't. The CO was under no obligation to request field pricing assistance. That was a choice. And it was obviously a poor one.

    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.


  12. 19 hours ago, here_2_help said:

    You know how contractors have to certify things like accurate, current & complete cost or pricing data? Or that the indirect costs in the final billing rate proposal are free of expressly unallowable costs?

    I'm proposing that every UCA issued from now on must contain a certification, signed by the CO and one level higher, that the UCA is NOT being issued because of concerns about expiring funds, and that the signatories agree that they will use best efforts to definitize the contract within the statutory limits. Under penalty of perjury.

    Would that be too overwhelming of a step? Or is the status quo just fine with everybody?

    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.


  13. 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.


  14. 20 hours ago, here_2_help said:

    As soon as you hold COs and PMs personally liable for failing to definitize in accordance with statute.

     

    16 hours ago, here_2_help said:

    The statute says what the statute says. If the CO and PM are not willing to comply then they shouldn't issue a UCA. If they do so then it's on them to comply with the statute.

    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.


  15. 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.


  16. 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:

    Quote

    Many organizations have budgets that expire at the end of the fiscal year. Faced with uncertainty over future spending demands, these organizations have an incentive to build up a rainy day fund over the first part of the year. If demand does not materialize, they must rush to spend these resources on low quality projects at the end of the year. We test these predictions using data on procurement spending by the U.S. federal government. Using contract-level data on a near-universe of federal contracts, we document that spending in the last week of the year is 4.9 times higher than the rest-of-the-year weekly average. Using a newly available dataset that tracks the quality of $130 billion in information technology (I.T.) projects, we show that quality scores for year-end projects are 2.2 to 5.6 times more likely to be below the central value. 

    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.


  17. 5 hours ago, Boof said:

    I thought the FAR applied to all members of the Federal Government but at least to the members of the Acquisition team.  FAR 1.102-4(e) states:  (e) The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team...........

    See FAR 1.108(f):

    Quote

    (f) Imperative sentences. When an imperative sentence directs action, the contracting officer is responsible for the action, unless another party is expressly cited.

    Emphasis added.

    So much for the FAR Finance Team, whoever they are.

×