Michael11

Thank you both for the feedback. Neil I will read those clauses with additional rationale for the governments interest in royalties. This is for a non dod civilian agency. We did receive the request from the CO but there is no identifying form number. It is tied directly to the task order. There are no patent or royalty clauses whatsoever. None of the provisions Neil mentioned were in the rfp or in the subsequent contract as a clause. The contract was awarded competitively under an idiq contract. If these clauses are not included, is n/a an appropriate answer in the eyes of the government?

Hi all, Interested in folks’ perspectives on reporting of royalties and patent rights during contract closeout. For reporting of royalties, what is the government’s interest in this? Why are royalty payment in excess of $250 important? Same thing for patent rights - what is the significance of reporting an invention as part of the closeout process? Would a contractor’s affirmative that an invention was made then supersede actual contract terms pertaining to the issue? i am sort of confused as our contract is completely silent on both of these issues. The word patent or invention do not appear anywhere. The guidance on the closeout form says if any questions are answered in the affirmative, provide a copy of the information required by contract. There isn’t any? Also, when settling subcontractors we generally have them complete similar paperwork for their release of claims. Should a similar atteststion re: inventions, royalties, etc also be obtained? If one weren’t is there risk in the event a sub actually claimed an invention was made?

Thanks guys! I heard the resounding Yes answer earlier this week and was also pleased to follow along in the rabbit hold as we debated bailments. All told I agree adding the unit as a deliverable will likely be the simplest, most transparent and financially worthwhile way to go.

Thank you Vern, that makes good sense

Thanks for the feedback everybody. Beginning with H2H’s inquiry the contract does not contain any 52.245 clauses but does say the provisions of 52.245 shall apply to all property acquired under such authorization. This request originated with the COR and I agree with folks that no matter what we will likely bring in the CO ahead of purcashing this item so that they are aware. I would be speculating but I think this may be part of the issue. We don’t normally make or sell laptops but this feedback has brought some fresh perspectives like how the changes clause or FAR part 6 may apply so I will look into that. FWIW I’ll try to make the situation a little clearer because I don’t think it’s as bad as I may have initially framed - I’ll make this up and let’s say the contract is for the 2020 Census. We have helped develop research and applications on the upcoming Census. Graphics and marketing materials, etc. This is part of our scope. A program mgr would like the ability to show these things off at events they attend over the next two years in furtherance of the (our) program. Rather than do this with their own fed laptop which could probably be configured to do all this, they want a dedicated unit for this purpose. The contractor would still never possess the unit but let’s say it would either be in the field or at fed agency until program is over. What I think I heard with others’ (Vern) feedback is that if this arrangement wasn’t contemplated as part of the proposal, and it’s not specified in the SOW, the parties could consider adding the equipment as part of a bilateral modification using the changes clause, formally adding the equipment to the contract and making it a specified deliverable. And it’s there we could specify the terms and use of the equipment (agency responsible for liability, theft, etc)? Contractor would not want to be held liable if doesn’t have control over the unit. Do these details make it sound any less fishy? Am I in the right track? Thanks for the helpful feedback. I have some reading to do.

Hi all - curious your thoughts on this one. An agency has inquired to us about purchasing a piece of equipment with contract funds to be used for program purposes, but for exclusive government use. Let’s say it is a laptop. It is to be used by the programs’ feds at trade shows and the like in support of the program. is this allowable? On one hand there is no doubt this equipment is reasonable and needed to further the program. On the other hand if the govt is capable of purchasing the unit for themselves I don’t see why that would be problematic. If the contractor would make this purchase how would they mitigate their liability for property that is not in their possession or under their control? Can a title be transferred to the government thereby neutralizing the contractors risk of tracking equipment they aren’t privy to?

Desparado in my asking around the last week or so I have heard several cases like this. Several big boy contractors leaning on people in high places to get their ratings changed if they weren't happy with them. We have been rated exceptional on one contract and then didn't do a single thing differently on another and got satisfactory. Yes, the contractor commentary follows the evaluation for future source selections. But ultimately that rating, even if it's a very small part of a broader evaluation criteria, means something. It's important. It could be the difference. Contractors shouldn't have to lawyer up to make a case for their CPARS

That's really helpful FrankJon. Thank you. This whole exercise has been a lot of fun and we have learned a lot. I would still be interested in contractor or govt POV for what is considered exceptional work in areas like cost control. There are a host of ways I could think to provide value added services in other areas. It sounds like meeting all contract requirements, providing budget necessary updates, sending for your funding notice (s) and completing your work on time and under budget are not enough. There must be something of significant benefit to the government. Exceptional work is our goal - what are others doing in this area that they would consider exceptional?

I agree with the folks that have said to watch and learn. You are a 'brand new contract specialist' who is 'new to federal contracting/procurement and to the FAR'. You were given 'permission to look at contracts to learn how they are structured.' Despite being brand new to the field, and without a firm grasp yet on how contracts are structured, you see: In my opinion that is quite a leap. For anyone to make. Let alone someone new to the FAR. I could be wrong but in your short tenure at this agency I don't think you could have been exposed to enough pre-solicitation activity to make that call. And it is tough to think you are close enough to the purchasing landscape of whatever you are buying to know how to stimulate competition. It takes years and years of experience to really see the big picture. There is pre-award and there is post-award. There is buying and there is selling. There are big businesses and small businesses. And on and on. There is what you read in the Washington Post, or hear in the news, and there is government contracting reality. I am offering my perspective because it would be tough for anyone to advise you one way or another. Changing jobs is a serious thing. You have bills, maybe kids, maybe a mortgage. If you have another job in the pipeline, have some good connections, or if you are confident you could land another job pretty easily, I would think of an exit strategy. Working with criminals is not fun and life is too short. If you do not have that luxury, here are some words of encouragement for grinding it out. Making a career in contracting is a marathon, not a sprint. You sound really motivated to learn and perform at a high level. Those are good things. But you gotta pay some dues. I found myself in a similar environment when I first started my career (private sector). I wanted to read contract files, tear apart old proposals, explore the accounting system. Always thinking of my next move. I wanted to be in the meetings with the bosses and the go-to person for all things contracting. There are reasons I wasn't. I wasn't ready! If you are just entering the field be patient. Enjoy the ride. Get a solid foundation of contracting principles and practices, and learn on the job at your own pace. When it's your time you will know it. Enjoy the luxury of not having to make the really tough calls yet - because when you do, you better be ready to support your position with compelling facts. Your reputation is very important in contracting. You will be asked to bend rules. You will have to decide for yourself which ones can be bent (or risk your command's same demise).

No it is not. I should note that this is via a gsa contract

You are in a town you're not familiar with and in front of two pizza places. One has a Yelp score of 4.7 and the other 3.2. Is there any chance you say to yourself, I am going to read the 64 comments at the 3.2 restaurant, think it over, and then decide? Probably not. Me? I am going straight for the 4.7 because I automatically think it will be better. ji I really appreciate your perspective on this. It was eye opening and very helpful. Thanks everyone else too for the helpful feedback. I will maintain that there is too much personal or professional bias and subjectivity involved in a process that can have such a profound impact on a contractor's future business prospects.

FAR 52.219-8, 9, 14, 16 are all in the award. Neither the award document nor SOW as you may expect makes any specific mention of competing subcontracts. Company policy is to the max extent practical seek competitive quotes from subs over the micro purchase threshold. I think myself and others have all said we generally consider that an indirect function. But from an accounting perspective there is nothing that prohibits charging it as direct. Is the question now whether that is proper should the SOW and contract be otherwise silent on the issue.

Sorry that was a typo ji. It should have said unsatisfactory. I was looking at the same table. My opinion is that while administering a fully funded award that ultimately was delivered on time and under budget, and was at no time at a risk of overrun to the government, I do not consider that a serious failure. Sure, the government didn’t receive that loc notice to reassure them you could perform within the ceiling price, but I still think that is extreme. I might think differently if it was in an overrun situation and that notice could have helped remedy the situation or allow the government time to prevail in some way. I agree the notice is important. At worst i would give that contractor a marginal though. There are COs out there that don’t even know what a LOC notice is or when to expect one. All of which is to say I still think the process is too subjective.

Right and that singular problem must constitute such serious magnitude that it alone gets you an unsatisfactory. A lapsed LOC letter is THAT serious? Note you can not meet ‘some’ contract requirements, which is what I consider an LOC notice, and still be given a ‘marginal’.

To the contractors getting exceptional ratings in cost control: what are you doing from a contract,finance, budget perspective to warrant that rating? How are you exceeding many contract requirements to the government’s benefit?

That’s interesting ji. For a project delivered on time and under budget, absence of a limitation of cost notice constitutes a singular problem of such serious magnitude that it could alone render a unsatisfactory rating? Mind me asking if there is a citation for that? It seems to me that if you are adequately forecasting and managing cost via status reports or the like, and ultimately managing the budget responsibly (IMO the most important), that funding notice oversight could be a singular event (or “minor problem”) and not a significant weakness. The definitions state that an unsatisfactory rating would require multiple significant events of failure - I think your rating would be a bit extreme. Appreciate your thoughts ji!

Maybe it’d be better that if Wifcon thinks there’s a market for responses on this one we could start a poll.

Some interesting perspectives here. If any Wifconers are interested, and if the powers that be would allow it, I volunteer to judge an anonymous poll of a mock CPARS scenario. Posters have to rate only the areas of Cost Control and Schedule using the standard scale from marginal to exceptional found here https://flh.fhwa.dot.gov/resources/construction/forms/wfl/documents/CPARS-Rating-Definitions.pdf. It will have only enough info to make your own determination. If you message me I will blind the results and post them on Friday. Just send me Cost Control________; Schedule__________. Anyone interested? Here is the scenario: IT Contractor overseeing, among other things, the migration of a new agency wide procurement system that will allow contracting personnel to more quickly generate contracting actions (mods, awards, RFPs) and allow funds to be obligated seamlessly from the agency budget office. The award was T&M type with a value of $22,500,000. Upon completion of the work there was $1,975,000 remaining on the only T&M CLIN used in the award document. Additional background: Contractor submitted all deliverables on time. During the peak of the system migration contractor met all fast-tracked deadlines. In pivotal moments of the transition, when an influx of supplier personnel and project coordination was required, contractor did not skip a beat. Contractor delivered the system migration on type and within budget. Agency leadership was frequently briefed on status of major contract deliverable and anticipated network disruptions that were unpreventable as part of the migration. Contractor was savvy in their negotiations with vendors and nimble to work around federal holidays.

Thank you both for this really helpful feedback. This was one of the answers i was really looking for but couldn't confirm. Thank you. IMO it's tough to see how contractors get a fair shake at this. Especially realizing how much importance is placed on the ratings in future evaluations. Too much subjectivity - one person's good is another's great which is another's satisfactory.

Can any COs or contractors with CPARS experience help clarify the right way to insert contractor comments or object to an evaluation? Specifically, within the 14 period: If you are not content with your evaluation and would like a sit down with the CO to voice your case, does the CO have the ability to change a rating without ever actually "non concurring" or entering contractor comments? If you enter comments, but accept the evaluation, you have lost your chance for further rebuttal correct? If after talking with the CO you are not convinced they will alter your rating, and you would like another evaluation done by one level above the CO, must you actually select "i do not concur with this evaluation". Is it at that time you insert comments, justification for your case? Is there a sequence of the two steps above that may be viewed most favorably in the eyes of the government? We are not prepared to fight tooth and nail for this but would like a chance for the government to hear us out and reconsider. Any thoughts are welcome.

Quick clarification - i was using 'costs' to mean direct billable project labor. The folks who conduct these 'competitions' for lack of a better word are the same ones doing the project work. At various levels, all of which are approved labor categories in the award. I agree that this was sort of the heart of my inquiry. As these staff recording their time will be doing so to the billable project code there is no duplication of cost recovery. There is no other indirect cost pool that would recover the labor incurred for this purpose. (If there were, there'd be a problem right?) If, say, an indirect subcontract administration unit existed (with their own G&A percentage) and that G&A percentage was tacked onto, lets say...the costs for the vendors selected for the aforementioned competition, that'd be an issue. (purely hypothetical)

This would be under a T&M contract. Contractor, in the administration of the prime award, is charging as a direct project cost the labor associated with vetting and selecting competitive proposals for subcontracts. I equate this to purchasing which I generally think of as an indirect administrative function. Argument is that agency receives direct benefit (best value or LPTA), contractor wouldn’t be doing this work otherwise (no award, no need to solicit vendors), and no other contracts receive a benefit from the work.

Interested in others’ thoughts. The labor costs to solicit competitive quotes from subcontractors...drafting an RFP; reviewing quotes; selecting a vendor....direct costs? I can’t recall ever seeing a sub charging for this and in the govt I never saw a prime do it either. I think of this as an administrative indirect function. In an environment where something like overhead is not an overly defined thing, is there a circumstance where you could justify these costs as direct, billable costs?

In the absence of a specific solicitation requiring one to, does ‘relevant commentary’ suggestions, and the GAO’s reasoning where some interpretations could require contractors to notify an agency of a material change, equate to.. contractors must do so?

As a contractor in this situation I think it’s important to evaluate things beyond just the terms and conditions spectrum as well. Once you have cleared what you see to be the legal hurdles (solicitation language, FAR, contract) will your firms reputation still be in tact? Even if you’ve determined you’re not obligated to disclose a thing, how will your actions be perceived by the govt or others? There is a difference between substituting a key position where 1) you know your company has 5 more equally qualified replacements who wouldn’t skip a beat and 2) the one of a kind project lead that you’d be up a creek without a paddle looking to replace. If it were the latter and you knew the award depended on this person, even if you risk losing the business, it may be worth disclosing to the agency (if you still had the chance to). If you didn’t and you can’t deliver you likely just cost yourself a customer. If it were the former you can probably sleep well at night knowing that you can still staff a high performing individual at a key position (and one that the govt won’t freak that you’re replacing). This might not good advice but it was what I thought about after having cleared contractual obligations