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Vern Edwards

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Everything posted by Vern Edwards

  1. Multiple-Year Funding

    I do not know whether FAR 32.703-3(b) applies to multiple year appropriations. It seems that you ought to be able to rely on the guidance provided by your Finance Office. I would get that guidance in writing and document the file.
  2. Multiple-Year Funding

    Despite the title that you gave to this thread, it sounds like you have annual funds. When you wrote "FY16/17," I presume that the slash between 16 and 17 stands for and and that you meant that you used FY16 funds for one part of the contract period and FY 17 funds for another. (Otherwise, with respect to annual appropriations, there is no such thing as "FY16/17" funds. There are FY 16 funds and there are FY 17 funds.) If, in fact, you have multiple year appropriations, then disregard this post. The extension is a new procurement, even if you accomplish through supplemental agreement under the existing contract. If you (1) have FY17 funds, (2) make the extension a separate line item, and (3) accomplish the extension before the end of September 30, 2017, then you can use FY17 funds to fund an extension for up to 12 more months. See FAR 32.703-3(b) and the GAO Red Book, Vol. I, Ch. 5, Sec. 9a.
  3. Which is why coverage of commercial items contracting should be removed from the FAR, Chapter 1 of Title 48 of the CFR, and placed in a separate chapter of Title 48, which should expressly state that it is the exclusive coverage for commercial items. Hear that, Section 809 Panel? While you're at it, take simplified acquisition out of the FAR, as well.
  4. Mandatory E-Payroll

    So what? Perhaps they should be.
  5. Mandatory E-Payroll

    Well, in response to your wonderment: Emphasis added. The rest of the section goes on to prescribe procedures. It also allows waivers in "urgent and compelling circumstances." Now, it seems to me that forcing contractors to buy third party software in order to submit information to an agency under a statute that does not require the purchase of such software would have a significant cost or administrative impact on contractors or offerors. You have to buy, learn how to use, maintain, and troubleshoot the software, and do data entry, and you might have to change existing company data management and reporting practices. See 41 U.S.C. § (a)(1)(B). Congress enacted 41 U.S.C. § 1707, and the president approved it, in 1984, in order to stop agencies and offices within agencies and contracting officers from individually launching policies and procedures willy-nilly without giving the public a chance to comment and object. Don Mansfield has written about this. See Postscript II: Agency Policy Memos, The Nash & Cibinic Report (February 2014), in which he said: Now, a policy like "Mandatory E-Payroll" might be perfectly justifiable, which is what the public comment period is for, to give agencies a chance to explain what they want to do and why they want to do it. It gives the public a chance to complain to the agency and to its legislative representatives if they think the proposed policy is unreasonable or too burdensome. What if an agency decides to ignore the law or argue that the policy does not meet the standard in (a)(1)(B)? Well, a prospective contractor can protest and force the agency to try to persuade an independent tribunal that publication was not required. Really, government has to be under control and restraint or it will go crazy.
  6. Mandatory E-Payroll

    It does not matter by what authority the CO included the clause if the authority was granted in violation of the requirements of statute or regulation. I cannot think of any valid authority to establish a policy to use such a clause without first complying with 41 USC § 1707, FAR 1.501, and FAR Subpart 1.4. The agency should explain why it did not do so. (It did not. I checked with the agency today.) While the agency might have an argument that they did not need to do so under statute and regulation, a requirement for a construction contractor to buy, install, and use special software for payroll submission is not a minor matter, and any such argument should be put to the test before the CO's superiors, the GAO, or the COFC. Joel, the same goes for the USACE's use of any such clause.
  7. Mandatory E-Payroll

    I could find no authority for use of the clause in question. I, too, searched the Federal Register and the regulations. I also searched the United States Code. You could protest the use of the requirement and the clause to the agency, the GAO, or the Court of Federal Claims after the solicitation comes out, but before the date set for submission of bids or proposals. You could protest the requirement and the use of the clause on the ground that it is an unauthorized FAR deviation, see FAR Subpart 1.4, and that inclusion of the clause violates 41 U.S.C. § 1707 and FAR 1.501. Unless Don Mansfield or I have missed something, your protest would almost certainly be successful. You could, instead, make a formal written inquiry citing the references that I have provided. Such an inquiry might make the agency back off. A protest would be a public service,, but won't win any friends within the agency.
  8. Your first statement is not clear. What do you mean when you say that the CO "awarded a contract under NAICS 541110"? What does "under NAICS 541110" mean? As for you second statement, does the solicitation expressly require the provision of legal services by an attorney-at-law? If so, at what geographical location? When you say that the "company... do not hold a professional license in any jurisdiction where they are located," do you mean that none of the owners or employees of the company are licensed to practice law? Do the jurisdictions in which they are located require the company to have a law license of some kind, or does it require that persons in the company who practice law have a law license? A lot of people would argue with you about that. I won't, but a lot of people would. Maybe you meant that you cannot practice law without a law license. If you were to protest, you would protest that (a) the firm is nonresponsible, or (b) that the firm itself does not meet an express requirement of the solicitation that it be licensed, or (c) that the firm's proposal is unacceptable because it does not satisfy a material requirement of the solicitation, or (d) all of the above, depending on the facts. In re: protests against affirmative determinations of responsibility, see SaxmanOne, LLC, GAO B-414746, Aug. 22, 2107: I doubt that inconsistency with the NAICS code would be grounds for protest. But who knows? You'd have to make some kind of argument.
  9. page limitations on proposals

    I looked at the Report, and I get it. Thanks.
  10. page limitations on proposals

    Don: How are such determinations made? Are they made on the basis of objective assessments of recorded measurable empirical data or are they based on subjective, anecdotal "feedback"? If objective, who validates the measurements and assessments? How are causal determinations made? Are the data and verification reports published? Vern
  11. See this: http://www.wifcon.com/discussion/index.php?/blogs/entry/3401-streamlining-the-far/
  12. page limitations on proposals

    Agencies set page limitations (and font style, size, and spacing limitations, and page margin requirements, etc.) because they wrote vague instructions for the preparation of "technical" and "management" proposals. Offerors, not sure what agencies were looking for, resorted to what I call "recon by fire," an old infantry tactic. They wrote as much as they could about everything they could, hoping to score enough points to get into discussions, where they hoped to find out what the dummies wanted. Agencies never understood that they were to blame for proposal bloviation. Then agencies resorted to ridiculously small page limitations, like the one described in the opening post, too stupid to realize that they didn't need technical ("narrative") proposals at all. I wrote this in 2013: Acquisition personnel are often thoughtless about their work. It's maddening. They do the things they do because that's the way things have always been done, and they infect their trainees with cut and paste disease. Brain death is rampant in the ranks, from political appointees, through the ranks of the SES, down to the journeymen. All I can hope for is ruthless insurgency by the young. Okay, back to "Rick and Morty." TINY RICK!!!
  13. page limitations on proposals

    I wrote the following in 1994. It was published in a professional newsletter in October of that year. In December 1994 the newsletter published two letters, which it received in response to my article: In December of 1998, Profs. Ralph Nash and John Cibinic wrote this about proposal page limitations: And now, 23 years after my 1994 article, think of the conversation that you all have been having in this thread. What does it tell you about your profession?
  14. THINK! (maybe)

    On April 24, the Under Secretary of Defense for Acquisition, Technology and Logistics issued a memorandum about implementation of the “Better Buying Power” initiative, phase 2.0. You can find it at: http://bbp.dau.mil/ Sigh, another acquisition improvement memo. But, reading the thing, I came upon this interesting paragraph: “Think”! Now that’s something you don’t often see in an official memo. You’re much more likely to see something like, Just do it. Why did the Under Secretary write that? Does he believe that people haven’t been thinking, or was “Think” just a rhetorical exhortation? Let’s give him the benefit of the doubt and assume that he really isn’t happy with the present state of acquisition thinking. He shouldn’t be. What Is Thinking? What does “Think” mean? Let’s think about this. “Think.” What is thinking, exactly? It’s a mental activity, we all know that. Is it something that must be accomplished, or is it a method of accomplishing something? Is it a function — a set of tasks directed towards a general purpose, like maintenance, or is it a specific task? Is it a method? If so, is it a specific method or is there more than one way to think? If there is more than one method, how many more, and in what ways do they differ? Is thinking the same as reasoning? Can one think without reasoning, or reason without thinking? Is there unreasoning thinking, or unthinking reasoning? As I pondered thinking I recalled a book that might help and rummaged around in my library until I found it: What Is Called Thinking? (English trans., 1968) by Martin Heidegger. I shuddered as I recalled the college course (oh, so long ago) in which it was assigned reading. I frankly don’t remember much about the book, and my old underlining didn’t help. But the very first two paragraphs were a bad omen: That book is sitting on my nightstand now, like the raven on Poe's bust of Athena. It’s time to pull out a dictionary. One of the definitions for think in the American Heritage Dictionary of the English Language, 5th ed., is as follows: A Dictionary of Philosophy, Rev. 2d ed. (1979), by Anthony Flew, provides something a little more expansive on pp. 352 - 353: I found a longer entry about thinking in Volume 8 of The Encyclopedia of Philosophy, Reprint Edition (1972), pp. 100 – 103, which contains the following: Despite their obvious shortcomings, I like those last two explanations, because I can relate them to things that contracting personnel do at work. For instance thinking about what evaluation factors to use in a source selection is deliberation. Thinking about what kind of thing an evaluation factor is and what kinds of evaluation factors there are is contemplation. Deliberation is practical. Contemplation is theoretical. You deliberate in order to decide what to do. You contemplate in order to understand and develop ideas. So, what is thinking? (The definitions that I quoted are from lexicographers and philosophers. A psychologist might answer differently. See Thinking, Fast and Slow (2011), by Daniel Kahneman.) I believe thinking is a debate with yourself — a purposeful process of asking yourself questions about something and then trying to answer them. You ask, you answer, you challenge, you respond, and you decide, just you and yourself, in foro interno. For example: What is an evaluation factor? Answering entails definition, induction, analysis, classification, deduction, and argument. Each of those operations should be performed according to exacting standards of rigorous thought. You will get a different answer from other people. It is something to think about. But right now I like the contemplation/deliberation distinction and will run with it. Contemplation and Deliberation It seems to me that in order to deliberate well, you must contemplate first. You cannot deliberate well about what contract type to use until you first contemplate the concept of contract types until you understand what they are and how they are supposed to work. In order to do that you must read more than the summary descriptions in FAR Part 16 or in a set of PowerPoint slides. You must read the standard contract clauses peculiar to each type and think about how the clauses work together and with what results. You must then figure out how each contract type differs from the others. You must also contemplate contract type theory, which holds that the right distribution of cost risk “will provide the contractor the greatest incentive for efficient and economical performance.” Is that true? In order to contemplate contract type theory, you have to contemplate risk: What is it? What causes it? Can you measure it? If so, how? And on, and on. It’s never done. In order to deliberate well a professional must have a head full of well developed professional ideas gained through contemplation, as many as possible. You will need them in your deliberations. Much deliberating is done in cooperation with others, and you can better communicate and be understood when your ideas are well-developed and deep, so that you can explain them clearly and answer questions. Where do you get such ideas? You get them by going to school, reading, talking things over with colleagues, and, especially important, by going into a quiet corner and asking yourself questions and developing answers about the things that you have been taught, that you have read, that you have heard, and that you have worked out for yourself. It takes quite a lot of effort, and it takes a long time, a professional lifetime. It’s never done. Understand Simple Things Deeply According to The 5 Elements of Effective Thinking (2012) by Edward B. Burger and Michael Starbird, the first key to effective thinking is to master the fundamentals by understanding simple things deeply. “The most fundamental ideas in any subject can be understood with ever-increasing depth.” If asked to explain cost, as used in cost estimate, cost analysis, and should cost, what would you say? If asked to define cost on the spot, could you do it? A cost estimate is an estimate of what, exactly? How much and how good of an explanation could you give to someone who doesn’t know anything about it? How deeply could you go into that concept? Could you anticipate the inevitable questions? Could you answer them? If you are a contract specialist, how much do you know about the concept of contract? Can you go beyond “an agreement that the courts will enforce” or offer, acceptance, mutual assent, consideration, competent parties, legal purpose, etc., or the definition in FAR 2.101? How long can you talk about What is a contract? Five minutes? Fifteen minutes? An hour? Longer? How much do you know about, and how deeply do you understand, the thing in which you specialize? In his memo, the Under Secretary alludes to the importance of contemplation: Contemplation is professional preparation for deliberation. Deliberation is the practical application of professional ideas to professional problems. You cannot deliberate well if you have not first contemplated well, and in order to contemplate well you have to put in a lot of work. And it’s never done. The Perils of Deliberation without Prior Contemplation What happens when you deliberate before you contemplate? Consider: The Department of Defense IG recently issued a report that is critical of the way DOD contracting personnel awarded and administered performance based payments (PBP). See DOD Inspector General Report No. DODIG-2013-063, Award and Administration of Performance Based Payments in DOD Contracts, April 8, 2013, and FAR Subpart 32.10, Performance Based Payments. According to the DODIG: Italics added. In order to award performance based payments (instead of progress payments based on costs), contracting officers must identify and select performance events (aka, milestones) and then pay contractors based on the predetermined value of the occurrence of the event. See FAR 32.1004(a)(1). FAR doesn’t explain the concept of an event, but says that contracting officers may not use as events such occurrences as (1) the signing of contracts or modifications, (2) the exercise of options, and (3) the mere passage of time. Maybe what the DODIG found happened because the contracting personnel deliberated about what events to use before they had contemplated the concept of an event. Perhaps they did not ask and answer some basic questions: · What is an event? · What is a performance event in the context of performance-based payments? · Are there different kinds of events and, if so, how many kinds are there, and what are the differences? · Of the various kinds of events, which are appropriate to use as bases for performance based payments?Perhaps they should have contemplated those matters and identified the attributes common to (1) the signing of contracts or modifications, (2) the exercise of options, and (3) the passage of time that make those events unsuitable. Then, when deliberating about what events to use, they could have made sure not to choose any that had those attributes. Now consider this: Suppose that a source selection team must decide what evaluation factors to use. See FAR 15.304. The team sets to thinking about their choices, and decides to look at old RFPs for examples. They then choose certain ones and cut and paste. They don’t stop to ask themselves: · What is evaluation? · What is an evaluation factor? · Are there different kinds of evaluation factors? · If so, how do they differ from one another, and what is the significance of each of those differences to the tasks of proposal preparation and proposal evaluation?If the agency’s acquisition personnel don’t devote some time to contemplating those things, if they cut and paste from old RFPs, they may end up making bad choices and being unsuccessful or less efficient and economical than they could have been in identifying the firm that offers best value. See Vernon J. Edwards, “Streamlining Source Selection by Improving the Quality of Evaluation Factors,” The Nash and Cibinic Report, October 1994. Is Anyone Thinking? How good are acquisition personnel at thinking? Do they contemplate before they deliberate, and do they contemplate and deliberate well? Are they professionally prepared to do those things, as the Under Secretary says that they must be in order for their thinking to be of any use and to have a good outcome? Based on extensive personal experience in the classroom, I believe that acquisition personnel could do much better at professional level thinking. They are not alone in that. It is often asserted that today’s undergraduate education does not prepare students to think well. The private sector has long recognized this problem. See “Executives to new grads: Shape up!” by Anne Fisher, accessible on line at CNNMoney: http://management.fo...grads-shape-up/ See also “What are most students learning in college? Not enough, study says,” by Sara Rimer in The Hechinger Report, January 18, 2011: http://hechingerrepo...udy-says_4979/. Many public and private universities and some institutions of professional military education offer courses about thinking. Harvard even has a course called “Thinking about Thinking.” The National Defense University, in conjunction with the Defense Acquisition University, offers a two part, two semester course entitled, Critical Thinking and Decision Making in Defense Acquisition, ICAF 6152-1 and 6153-1, but it is available only to those who already have a Level III certification and who are enrolled in the Senior Acquisition Course. If thinking is so important in acquisition, why isn’t there a course more widely available for those in earlier phases of their professional development? Why wait until someone is a decision maker to offer them such training? Many mature students have complained to me that they didn’t get the right kinds of training early enough in their careers. Why is that so? Assuming that acquisition personnel know what thinking is and are able to do it well, do they have enough time to think, given their professional workload and their reporting, data entry, and other clerical duties? Do they have enough administrative and clerical support? The workload has been crushing over the last decade, and the rules keep getting more and more complex. In October 1995, the rule in FAR 16.505( b ) governing the multiple award task order contract “fair opportunity” process was 565 words long. By May 2012 the rule had grown to 2,203 words. There was a similar development in the rule in FAR Subpart 8.4 governing the placement of orders against GSA Federal Supply Schedule contracts. That kind of development means more work to process a contract action. Also, the issuance of new reporting requirements has become practically routine. Administrative and clerical support is virtually nonexistent, yet, every year, Congress and senior officials in the Executive Branch pile more reporting and data entry tasks onto the shoulders of contracting personnel. I believe that I know what a random sample of GS-1102s would say if asked whether they have enough time to think deeply about anything at work. Think! Really? Thinking, however, can produce troublesome thoughts, and I wonder if the Under Secretary realizes what he has asked for and, if so, whether he means it. What if people begin to think and their thinking leads them to question fundamental tenets of acquisition dogma? For example, what if contemplation leads them to question the efficacy of proposal-based competition for development contracts? What if they argue that such competitions encourage the submission of inflated promises and foster unrealistic expectations? What if they begin to question the utility of contract incentives and to argue that they cost more to plan and administer than they yield in terms of reductions in cost and improvements in performance? Will such thinkers be welcomed and their thoughts given serious consideration? Or will they face professional “excommunication” and see their thoughts rejected out of hand? How open will the higher ups be to their ideas? Will they encourage and support such thoughts? Consider the DOD Source Selection Procedures issued under the previous Under Secretary on March 4, 2011: http://www.acq.osd.m...183-10-DPAP.pdf Italics added. “All” -- no exceptions. Waivers require the “express permission” of the Director of Defense Procurement. In short: Don’t think. We’ve already done the thinking. Just do what we say. Use the standardized rating tables, whether they make sense in your case or not, whether or not you think there is a better scheme. That’s ironic in light the Under Secretary’s memo: “Our workforce should be encouraged by leaders to think and not to automatically default to a perceived school solution just because it is expected to be approved more easily.” Yet, we need thinkers in acquisition, and good ones. I recently read the following in “Education for Critical Thinking,” by Col. Thomas M. Williams, in Military Review, January-February 2013, pp. 49- 54: Substitute acquisition for “war” and “operational,” and I think his statement applies equally well to the work of acquisition professionals. Acquisition is a squishy field. While there are acquisition laws, regulations, and dogma, to be sure, most of the big problems involve fuzzy logic, and experts can and do disagree about solutions. Critical thinking is an essential skill. So it makes sense that the Under Secretary demands that DOD acquisition professionals think, but it is ironic that his office has issued directives like the source selection memo. I wonder whether the Under Secretary is serious about wanting acquisition personnel to think. If he is serious, I wonder what he is going to do about it. A memo isn’t an accomplishment. Is it? Well, is it?
  15. What's the point of continuing this discussion if you won't provide a straightforward answer to the question: Why target = ceiling? You should be able to answer that in just a few simple sentences, without the irrelevancies. Why is target = ceiling an essential feature of your use of FPI? How is it in the government's best interests? Give me the contract number(s) or name the project. Let's take a break until Tuesday. It's a holiday weekend.
  16. Because you're not really thinking of an FPI(F) when you propose a target and a ceiling that are the same. That's not a concept that I know to have been used in the entire history of FPI(F) (which goes back to WWII). There is nothing that "specifically" (expressly) provides for such a thing, including the instructions for completing the incentive price revision clause. The FAR is silent about what you want to do, so, legally, it can be done, but why do it? See FAR 1.102-4(e): Why is identical target and ceiling, something that as far as I can determine is inconsistent with 57 years of written guidance in FPI(F) structuring, in the best interest of the Government and sound business judgment? Here's what you said in your opening post: The first sentence is the real rationale. As for the second, why would FPI(F) do those awful things for a DB construction project when it didn't do them for the first GPS satellite development project in 1977, which used an FPI(F) with a 75/25 share ratio and a 120 percent ceiling? The launch and spacecraft performance were a great success. Come on. The only rationale you have provided since (that I can remember) was this: Now, Joel, be fair. Read what that says. That's not a rationale (argument) for identical target and ceiling, which is a radical departure from long-standing FPI(F) guidance and practice. The fact that you were asked to research and develop guidance is not a rationale for the guidance you are developing. True, FPI(F) is simpler than FPI(S), but how is that a rationale for identical target and ceiling? What comes after that "thus" in the last sentence of your second paragraph does not logically follow from the three sentences that go before it. The fact that CM@Risk isn't suitable isn't a rationale for identical target and ceiling, either. Talk about bureaucratic resistance. I can tell you now that if you recommend that without a better rationale than you've given here you are likely to face a long, uphill struggle to get anybody to write that into any regulation or guidance. Why would they? If I were at a meeting with you in which you made that recommendation I would ask you to tell us when such a thing would be appropriate and why? And you'd be done for if your only explanation was that it would be appropriate because it would match what's in the DBIA Manual of DB Practice. I would ask, if you're trying to match DBIA's guidance, why not simply recommend that we adopt the GMP contract type that they use? Why corrupt the FPI(F), which we think has worked well. (Actually, there is no evidence that it has.) Joel, how hard would it be to identify a target cost and profit, add the contingencies to set a ceiling price, and set a share ratio that you think would motivate the contractor to manage the contingencies and control their costs? Do that and you don't have to recommend or justify anything to anybody. If you want to use FPI(F), why not just use a standard-practice FPI(F)? Joel, I'm not trying to be difficult. I'm trying to help you prepare for questions you might get from the conservative, cautious staffers you mentioned earlier. After all, you were concerned enough about the identical target and ceiling yourself to post a long thread asking if it would be okay. If I were a staffer and you brought this to me for review I would hone right in on that identical target and ceiling and not let go until you hollered, relented, or provided a reasoned argument in support. You don't have to agree with me about FPI(F), just gin up a decent argument for what you want to do. Don't wreck your cause by constructing a rickety framework for it. If I were in your place I would recommend Government adoption of GMP. I'd find a Government sponsor. Vern
  17. D&F Signature Authority over $1Billion

    The word billion does not appear in the FAR. It appears only five times in the entire FAR System: three times in the DFARS and twice in the DOE supplement. None of those five relate to any D&F for a multiple award IDIQ.
  18. Thanks, Joel. I'll read your last post carefully later today. A couple of things: You have referred to a DBIA publication 510 a couple of times. I can't find a DBIA publication 510. I called DBIA just now and spoke with someone in their publications office who told me there is no DBIA 510. She said she checked their archives, too. Please check that reference and provide a complete citation. Thanks. I'm curious--Why not just go for a FAR amendment to expressly authorize the use of GMP and to provide appropriate clauses? Alternatively, if the FAR councils won't act, why not propose a class deviation for adoption in agency supplements ? It seems to me that the FPI approach is a halfway measure. Vern
  19. Joel: Okay, let me play devil's advocate. Pretend that I'm one of the staffers you described earlier, and you have presented your design-build proposal (above) for use of an FPI(F) contract--with (a) identical target price/ceiling price, (b) a 50/50 share ratio, and (c) a separate contingency line item--to me for review and comment. Among other things, you said: I have no objection to the use of an FPI(F) pricing arrangement for design-build contracts. I wouldn't use one, but that's a CO call. But what you propose is a departure from standard FPI(F) practice, and I object to (1) the identical target price/ceiling price and (2) the distinct line item for contingencies on the grounds that you have not provided a good rationale for either feature of your proposal Identical Target and Ceiling Prices The identical target price/ceiling price, while not expressly prohibited by FAR, is radically inconsistent with the long-standing guidance on structuring an FPI(F), going back to the 1960s and presently reflected in the Contract Pricing Reference Guides, Vol. 4, Section 1.3.1. You give no rationale for that extraordinary feature of your proposal. Why should/must they be the same? How is that consistent with orthodox incentive theory? Why couldn't the target price be the ceiling price minus the quantified contingencies? That would give the contractor a motive to control costs arising from the contingencies, which your scheme does not provide. See the next section. Distinct Line Item For Contingencies While I think it's a good idea to identify and discuss contingencies during discussions leading up to contract award, I don't understand your notion of establishing a distinct line item for them. Do you intend to fund it? What would be the deliverable(s) stipulated in such a line item? See FAR 4.1003. Would "contingencies" be the deliverables and the obligation? How so? Establishing a distinct line item for contingencies that is not subject to the cost sharing incentive would give the contractor no contractual motivation to control those costs. The contractor would have an incentive to underrun the GMP, but since the GMP would exclude the contingencies the incentive would not apply to them. What your scheme appears to do is relieve the contractor from any responsibility for managing contingencies and their costs, which is inconsistent with your statement that the Government's doesn't want to assume the entire cost risk for possible contingencies. Moreover, the contractor would have a basis for submitting a claim if the Government refused to approve a "draw". Moreover, some current guidance on the use of guaranteed maximum price indicates that the contingency is typically a 3 to 5 percent add-on within the maximum price, which is not what you're proposing. See Carney, Contracting Methodologies and Project Delivery Systems, Maryland Construction Law Deskbook, Ch. 2 (2017): Emphasis added. If that is, in fact, "typically" the case, why do you want to establish a distinct line item from which the contractor can "draw", whatever that means? It seems to me that you have proposed a feature that requires more explanation. Summary The objective that I discern in your scheme is to develop a Government contract type that is consistent with guidance published by the DBIA. You have not made a case for adoption of DBIA guidance other than that you like it. Your proposal strikes me as a scheme to get around the limitation that some see in the second sentence of FAR 16.102(b) by calling your GMP cost-plus/fixed-price hybrid an FPI contract. I see no insurmountable legal or policy issues with the use of an FPI(F) contract for design-build. But if you use it, use it in accordance with standard practice, and apply the cost sharing incentive to contingency costs. Set a target price that excludes specified contingencies, and include contingencies within the ceiling price. In that way the Government and the contractor will share the risks arising from the contingencies. I see no value added by your proposed departures from long-standing standard practice. Let me know if I have misunderstood anything that you've said.
  20. Is your contract cost-reimbursement? Fixed-price? Something else?
  21. The underlying problem is that too many government contracting personnel simply do not understand the concept of CONTRACT and the principles and fundamentals of contract law, and yet they are or want to be CONTRACTING officers. It appears that the concept, principles, and simply is not taught anymore, at least not in sufficient depth. Read enough questions at Wifcon and your experience will verify the truth of what I'm saying. The proper response to at least a third of all questions posted at Wifcon Forum is: Read your contract. What does it say?
  22. What does "combines" mean? I don't understand what would constitute "combining" special standards of responsibility with evaluation factors and then categorizing all of them as evaluation factors. Please provide an example.
  23. One additional point. If an RFP establishes a special standard of responsibility, and if an agency eliminates a lower priced small business offeror on the basis of that standard and must refer the matter to the SBA, the question may arise whether SBA is bound by that special standard when deciding whether to issue a COC. As far as I can tell the answer is no. See Geochemical Testing, Inc., GAO B-203757, 81-2 CPD ¶ 519: Capitalization in original. That's an old decision, but I did not find anything more recent on that issue. I checked SBA's regulations and Standard Operating Procedure for COCs and found no mention of special standards of responsibility.
  24. Yes, correct with regard to SBA COC issues. Whether LPTA or price only, if you eliminate a lower-priced small business offeror on the basis of either an LPTA pass/fail assessment of responsibility type evaluation factors or a price-only determination of nonresponsibility, then you must refer that offeror to SBA for COC consideration before making an award.
  25. You can use responsibility type considerations as pass/fail evaluation factors in an LPTA source selection. However, a key distinction between special standards of responsibility and comparative evaluation factors is that the GAO has decided that if you use any traditional responsibility consideration such as those listed in FAR 9.104-1 as a comparative evaluation factor, then the SBA's Certificate of Competency program, FAR Subpart 19.6, does not apply. But if you use a responsibility consideration as a pass/fail evaluation factor, then the SBA's Certificate of Competency program does apply. So suppose that you conduct an LPTA source selection and the only nonprice evaluation factors are experience and past performance, to be evaluated pass or fail. And suppose that you determine, pass/fail, that a small business offeror with a lower price than the winner is technically unacceptable on the basis of experience. In that case you would have to refer the small business offeror to the SBA for Certificate of Competency consideration before making an award. See e.g., Estrategy, Inc., GAO B-406419, 2012 CPD ¶ 171, footnote 3: See also Sanford and Sons, Inc., GAO B-231607, 88-2 CPD ¶ 266, DA Defense Logistics HQ, GAO B-411153.3, 2015 CPD ¶ 58, and many other such decisions. Of course, this applies only when an agency rejects an offer from a small business. FAR 15.101-2(b)(1) warns you about this with regard to past performance, but fails to warn you that it applies whenever you use a responsibility-type factor such as those mentioned in FAR 9.104-1 as pass/fail evaluation factors. See Alternative Procurement Strategies: An Obscure Aspect Of The FAR, The Nash & Cibinic Report, May 2001: If you're not afraid of the chance of having to refer a small business offeror to SBA for COC consideration, then you can save a lot of evaluation time by sticking to responsibility determinations rather than turning responsibility-type factors into pass/fail evaluation factors.
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