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Vern Edwards

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Everything posted by Vern Edwards

  1. How can we speed up the source selection process?

    Stop preparing and issuing draft RFPs.
  2. One of the new Defense under-secretaries has said she wants to speed up the source selection process under FAR Part 15 so that it takes less than one year. If we define the source selection process as beginning with the start of RFP preparation (not with release of the RFP) and ending with contract award, how can DOD (and other agencies) speed it up without changes in current statutes and regulations? Under FAR Part 15, not 8.4, 13, or 16.5. Let's not quarrel about when source selection starts and ends or whether the goal is worthwhile. I have set the problem. This is an exercise in thinking about means and methods. Let's brainstorm, so no critiques.
  3. Signing Contractor Employees' Timecards

    p5tMike: In the context of your inquiry, what does anyone care what a "typical" COR delegation includes?
  4. @govt2310 In the age of the internet, I don't admire your request.
  5. 48 C.F.R. 15.804-3 (1990) CODE OF FEDERAL REGULATIONS TITLE 48—Federal Acquisition Regulations System CHAPTER 1—FEDERAL ACQUISITION REGULATION SUBCHAPTER C—Contracting Methods and Contract Types PART 15—CONTRACTING BY NEGOTIATION SUBPART 15.8—PRICE NEGOTIATION 15.804 Cost or pricing data. 15.804-3 Exemptions from or waiver of submission of certified cost or pricing data. (a) General. Except as provided in paragraphs (b) and (c) below, the contracting officer shall not require submission or certification of cost or pricing data when the contracting officer determines that prices are— (1) Based on adequate price competition (see paragraph (b) below); (2) Based on established catalog or market prices of commercial items sold in substantial quantities to the general public (see paragraph (c) below); or (3) Set by law or regulation (see paragraph (d) below). (b) Adequate price competition. (1) Price competition exists if— (i) Offers are solicited; (ii) Two or more responsible offerors that can satisfy the Government's requirements submit priced offers responsive to the solicitation's expressed requirements; and (iii) These offerors compete independently for a contract to be awarded to the responsible offeror submitting the lowest evaluated price. (2) If price competition exists, the contracting officer shall presume that it is adequate unless— (i) The solicitation is made under conditions that unreasonably deny to one or more known and qualified offerors an opportunity to compete; (ii) The low offeror has such a decided advantage that it is practically immune from competition; or (iii) There is a finding, supported by a statement of the facts and approved at a level above the contracting officer, that the lowest price is unreasonable. (3) A price is “based on” adequate price competition if it results directly from price competition or if price analysis alone clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or substantially the same items purchased in comparable quantities, terms, and conditions under contracts that resulted from adequate price competition. (c) Established catalog or market prices. A proposal is exempt from the requirement for submission of certified cost or pricing data if the prices are, or are based on, established catalog or established market prices of commercial items sold in substantial quantities to the general public. In order to qualify for this exemption, the terms of the proposed purchase, such as quantity and delivery requirements, should be sufficiently similar to those of the commercial sales that the catalog or market price will be fair and reasonable. (1) “Established catalog prices” must be recorded in a form regularly maintained by the manufacturer or vendor. This form may be a catalog, price list, schedule, or other verifiable and established record. The record must (i) be published or otherwise available for customer inspection and (ii) state current or last sales price to a significant number of buyers constituting the general public (see subparagraph (5) below). (2) “Established market prices” are current prices that (i) are established in the course of ordinary and usual trade between buyers and sellers free to bargain and (ii) can be substantiated by data from sources independent of the manufacturer or vendor. (3) “Commercial items” are supplies or services regularly used for other than Government purposes and sold or traded to the general public in the course of normal business operations. (4) An item is “sold in substantial quantities” only when the quantities regularly sold are sufficient to constitute a real commercial market. Nominal quantities, such as models, samples, prototypes, or experimental units, do not meet this requirement. For services to be sold in substantial quantities, they must be customarily provided by the offeror, using personnel regularly employed and equipment (if any is necessary) regularly maintained solely or principally to provide the services. (5) The “general public” is a significant number of buyers other than the Government or affiliates of the offeror; the item involved must not be for Government end use. For the purpose of this subsection 15.804-3, items acquired for “Government end use” include items acquired for foreign military sales. (6) A price is “based on” a catalog or market price only if the item being purchased is sufficiently similar to the catalogor market-priced commercial item to ensure that any difference in prices can be identified and justified without resort to cost analysis. (7) If an item is substantially similar to a commercial item for which there is an established catalog or market price at which substantial quantities are sold to the general public, but the price proposed is not based on this catalog or market price (see subparagraph (6) above), the contracting officer may, if doing so will result in a fair and reasonable price, limit any requirement for cost or pricing data to those data that pertain to the differences between the items. When the difference between the catalog or market price of an item or items and the proposed total contract price is $100,000 or more, the contracting officer shall require submission of certified cost or pricing data to identify and justify that difference unless an exemption or waiver is granted. (8) Even though there is an established catalog or market price of commercial items sold in substantial quantities to the general public, the contracting officer may require cost or pricing data if (i) the contracting officer makes a written finding that the price is not reasonable, including the facts upon which the finding is based, and (ii) the finding is approved at a level above the contracting officer. (d) Prices set by law or regulation. A price set by law or regulation is exempt from the requirement for submission of certified cost or pricing data. Pronouncements in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to establish the price. (e) Claiming and granting exemption. To receive an exemption under paragraph (c) or (d) above, the offeror must ordinarily claim it on Standard Form 1412, Claim for Exemption from Submission of Certified Cost or Pricing Data, when the total proposed amount exceeds $100,000 and more than one catalog item for which an exemption is claimed exceeds $25,000. When an exemption is claimed for more than one item in a proposal, a separate SF 1412 is required for each such item exceeding $25,000 except as otherwise provided in the solicitation. The contracting officer may grant an exemption and need not require the submission of SF 1412 when— (1) The Government has acted favorably on an exemption claim for the same item or similar items within the past year. In that case, except as otherwise directed by the contracting officer, the offeror may furnish a copy of the prior claim and related Government action. The offeror must also submit a statement to the effect that to its knowledge since the prior submission, except as expressly set forth in the statement, there have been no changes in the catalog price or discounts, volume of actual sales, or the ratio of sales for Government end use to sales in other categories which would cause a cumulative change in price exceeding $25,000; (2) Special arrangements for the submission of exemption claims have been made in anticipation of repetitive acquisitions of catalog items; or (3) There is evidence, before solicitation, that the item has an acceptable established catalog or market price or a price set by law or regulation. Evidence may include (i) recent submissions by offerors or (ii) the contracting officer's knowledge of market conditions, prevailing prices, or sources. (f) Verification. (1) When a prospective contractor requests exemption from submission of certified cost or pricing data, the contracting officer shall ensure that applicable criteria in either paragraph (c) or (d) above, as appropriate, are satisfied before issuing the exemption. (2) SF 1412 lists three categories of sales related to the established catalog price of a commercial item sold in substantial quantities to the general public: A, Sales to the U.S. Government or to contractors for U.S. Government use; B, Sales at catalog price to the general public; and C, Sales to the general public at other than catalog price. Although “substantial quantities” cannot be precisely defined (see subparagraph (c)(4) above), the following guidelines are provided for determining whether exemption claims submitted under the catalog price provision of SF 1412 meet the “substantial quantities” criterion: (i) Sales to the general public are normally regarded as substantial if (A) Category B and C sales are not negligible in themselves and comprise at least 55 percent of total sales of the item and (B) Category B sales comprise at least 75 percent of the total of Category B and C sales. (ii) Sales to the general public are rarely considered substantial enough to grant an exemption if (A) Category B and C sales comprise less than 35 percent of total sales of the item or (B) Category B sales comprise less than 55 percent of the total of Category B and C sales. (iii) When percentages fall between those above, the contracting officer should analyze the individual situation in order to determine whether or not an exemption is justified. (3) The contracting officer may verify or obtain verification (including audit or contract administration assistance) of the submitted data pertaining to catalog or market prices or prices set by law or regulation. Access to the prospective contractor's records is limited to access to the facts bearing directly on the exemption claimed. It does not extend to cost, profit, or other data relevant solely to the reasonableness of the catalog or proposed price. (g) Individual or class exemptions. The chief of the contracting office may authorize individual or class exemptions for exceptional cases when the contracting officer recommends that an exemption should be made, even though the case does not strictly meet all the criteria for catalog- or market-price exemption. The quantity and prices of actual commercial sales compared with prices offered to the Government, and price relationships as influenced by prevailing trade practices, are the important factors for consideration. The Government's need and the prospective contractor's resistance are not appropriate considerations. (h) Price analysis. Even though an item qualifies for exemption from the requirement for submission of certified cost or pricing data, the contracting officer shall make a price analysis to determine the reasonableness of the price and any need for further negotiation. Unless information is available from Government sources, it may be necessary to obtain from the prospective contractor information such as that regarding— (1) The supplier's marketing system (e.g., use of jobbers, brokers, sales agencies, or distributors); (2) The services normally provided commercial purchasers (e.g., engineering, financing, or advertising or promotion); (3) Normal quantity per order; and (4) Annual volume of sales to largest customers. (i) Waiver for exceptional cases. The agency head (or, if the contract is with a foreign government or agency, the head of the contracting activity) may, in exceptional cases, waive the requirement for submission of certified cost or pricing data. The authorization for the waiver and the reasons for granting it shall be in writing. The agency head may delegate this authority. When the agency head or designee has waived the requirement for submission of certified cost or pricing data, the contractor or higher-tier subcontractor to whom the waiver relates shall be considered as having been required to make available cost or pricing data for purposes of 15.804-2(a)(1)(iii). Consequently, award of any lower-tier subcontract expected to exceed $100,000 requires the submission of certified cost or pricing data unless exempt or waived under this subsection 15.804-3. [50 FR 1741, Jan. 11, 1985; 51 FR 2650, Jan. 17, 1986; 53 FR 10829, April 1, 1988] Next time, go here http://wisblawg.law.wisc.edu/2006/11/historical-cfr-now-available-on-heinonline/
  6. Signing Contractor Employees' Timecards

    Start with saying something about it in COR appointment letters. What may a COR sign in his or her capacity as a COR? Receipt of services? Inspection reports? Acceptance of services?
  7. Fixed Price Level of Effort

    I attended a dinner a couple of years ago with some retired DOD senior contracting officials and program managers who had gone to work for big contractors. They told me that it's hard to do business with some of today's contracting officers, because they don't know enough and are not confident in the answers they give and in their responses to proposals. As one put it, "It's hard to do business with people who don't know much." That, of course, was anecdotal and unscientific information.
  8. Ummm, not everyone agreed with that. First, that applies only to publicly owned businesses. Second, there has always been an ethic of corporate responsibility, more or less. But the market is the market, and in order to survive you have to lead it or go where it leads. It no longer leads to career employment followed by a good pension. Everyone is so on their own. What I told our kids was to start a business and be your own boss. Don't work in a cube. They took that advice. They work very hard. They're not rich, at least not yet. They want things they can't afford, at least not yet. But they're happy. They've got four devoted grandparent childcare specialists, three great-grandparents, five dogs, two sheep, and a number of chickens. A couple of weekends ago we drove up the road and saw a group of trees by the river in which we counted 48 bald eagles. Is America a great country, or what? If I could teach a high school class it would be "How to start and maintain your own business."
  9. Signing Contractor Employees' Timecards

    Oh. My. God. Tell the COR, in writing, to stop signing the timecards. Immediately..Send a copy of that direction to the COR's boss. Notify the contractor, in writing, that government personnel will no longer sign its employees' timecards.
  10. Signing Contractor Employees' Timecards

    Why is the COR signing? Does the contract require that the COR sign time cards? What is the label of the box or at the space in which the COR signs? What is the COR's signature supposed to signify?
  11. How competitive are 1102 jobs?

    Part of the reason for that is the very high cost of living in the DC area and consequential grade inflation. A lot of those 14 jobs used to be 12 jobs.
  12. Or is it characteristic of all people who work in today's employment market? Anecdotally, I have an uncle now in his 80s who was hired by Rockwell as an electrical engineer right after his college graduation, and he stayed with that corporation until retirement 30 years later. During most of that time he worked on the Space Shuttle program. That kind of employment record simply is not going to happen very often if at all in today's global economy. Whose fault is that?
  13. Issues with PALT (Procurement Administrative Lead Time, aka Procurement Action Lead Time) are not new. The following is from the executive summary of a March 1977 report by the US Army Procurement Research Office: http://www.dtic.mil/dtic/tr/fulltext/u2/a038732.pdf The concern of many about the new focus on PALT (see Opportunity for Public Comment on Proposed Definition of “Procurement Administrative Lead Time” or “PALT” and the Plan for Measuring and Publicly Reporting Data on PALT for Department of Defense Contracts and Task Orders Above the Simplified Acquisition Threshold," A Notice by the Defense Acquisition Regulations System on 02/09/2018) is that it would define PALT as follows: That would measure source selection lead time---the time between issuance of the RFP and contract award. That is not the traditional definition of PALT as defined in the above cited study based on the 1977 Army Regulation 310-25: "Initiation of a procurement action" was defined as: The current DAU Glossary of Defense Acquisition Acronyms and Terms, under Procurement Lead Time, says: Contracting people don't like the new proposed definition of PALT, because much of what happens between issuance of an RFP and contract award is not within their control, and they don't want their work to be judged on that basis. Several related concerns are reflected in recent legislation: (1) concern about how long it takes to get on contract (seemingly forever), (2) concern about sole-source bridge contracts and poor planning, and (3) concern about the impact of the protest system on the acquisition process.
  14. Also, see the NDAA for FY2018, Sec. 851, para. (e). Congress is sick of bridge contracts.
  15. Fixed Price Level of Effort

    @joel hoffman I don't know who Corduroy Frog is, but based on the phrase "my client's proposal" it appears that he is not with the company that is submitting a proposal, but that he is somebody hired by that company to help with proposal preparation. If so, that might explain why he or she hasn't called the CO.
  16. See SOLE SOURCE CONTRACTING: Defining and Tracking Bridge Contracts Would Help Agencies Manage Their Use, GAO Report 16-15, dated October 2015, which was requested by Senators R. Johnson and T. Carper and sent to Senator C. McCaskill. https://www.gao.gov/assets/680/673110.pdf Sen. Johnson co-sponsored the bill.
  17. How competitive are 1102 jobs?

    Boof: A person who was an American Foreign Service Officer is a cut above almost everyone else. As you know, it is very, very hard to get accepted into the U.S. Foreign Service. I don't think your experience is going to be representative of what most other persons can expect.
  18. Fee Realignment

    We must see the contract, or you must quote the exact language of the CLINs, in order for anyone to answer your question. Until you quote the exact language of the CLINs, all you're likely to get from anyone here are more questions.
  19. What Does "Enactment" Mean?

    Then I don't know what it's a matter of, and I could not care less.
  20. What Does "Enactment" Mean?

    State laws, Dude. And that's coming from newspapers, which aren't known for legal niceties. Look, I responded to your question. Believe me or don't.
  21. What Does "Enactment" Mean?

    Regulation is not "enacted" in the U.S. It is promulgated. See Black's Law Dictionary 10th.
  22. FAR coverage is adequate. This is the kind of proposed legislation you get when an opposition party politician is "shocked, shocked" to learn that something inappropriate has happened under whatever administration is currently in place.
  23. What Does "Enactment" Mean?

    Think about it this way--a "rule" cannot be imposed on a contractor until it (a) is a public law, or (b) is a properly promulgated regulation, or (c) is in a contract. Right? When it comes to a statute, an enrolled bill that has been sent to the White House does not become a public law until (a) it is approved by the president, (b) it becomes law without the president's signature (10 days after received by the White House), or (c) Congress overrides a presidential veto. So "the date of enactment of this section" has to be the date on which one of those actions has taken place. Right?
  24. What Does "Enactment" Mean?

    See this: https://www.senate.gov/reference/resources/pdf/howourlawsaremade.pdf And this: https://www.senate.gov/legislative/common/briefing/Enactment_law.htm#20