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Junius

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Everything posted by Junius

  1. Thanks for your responses. I'm glad that, at least with respect to this subject, I'm not going crazy. If the interplay between FAR 12 and FAR 13 with other parts of the FAR were better understood or expressed more clearly, it would save me a lot of time and frustration.
  2. On Netflix I’ve been watching a show related to people allegedly providing false confessions. Sometimes the false confessions are elicited because the subject has been so psychologically broken down that they begin to believe they actually committed the crime. I think I’m having one of these moments as it relates to Government contracting. It’s about provisions and clauses. My (admittedly journeyman) understanding of the FAR is that apparently unambiguous prescriptions that a provision or clause applies to “all solicitations and contracts” is frustrated by FAR 12.301(d) when acquiring commercial items. For instance, I do not include FAR 52.243-1 (Alt III) in my solicitation for a fixed-price requirement for professional services because the service is commercial and “Changes” are already described in FAR 52.212-4(c), which is actually required in all commercial solicitations and contracts. When the GS-14 Procurement Analyst returns my solicitation with a recommendation that I include FAR 52.243-1 (Alt III) in my solicitation, it’s a relatively simple task for me to explain my position once I have finished lamenting the fact that I am not a GS-14 Procurement Analyst. I no longer think your average Frog (as Pepe would say) completely understands the meaning of the word “Notwithstanding.” Where it becomes trickier is with a provision or clause that does not necessarily have an “equivalent” commercial provision or clause. Now, I understand this is a DFARS clause, but take 252.225-7048, Export-Controlled Items, for example. My understanding of DFARS Case 2011-D056 is that DFARS 212.301(f) was implemented in its current form to represent a complete list of the DFARS provisions and clauses that are applicable to the acquisition of commercial items. In other words, if a DFARS provision or clause is not listed in DFARS 212.301(f), it is not applicable to the acquisition of commercial items. Where I begin to question my sanity is whenever I go to award my commercial, firm-fixed-price services contract. I send my contract award to be validated against the Procurement Data Standard (PDS) and, unfortunately, I receive an error that I have failed to include DFARS 252.225-7048 in my contract award. According to its prescription, 252.225-7048 is required in “all solicitations and contracts” which the PDS error message also helpfully reminds me. However, it’s not listed as applicable to the acquisition of commercial items in DFARS 212.301(f), nor does it include handy-dandy language in the prescription specifically referencing applicability to FAR part 12 as do most DFARS provisions and clauses listed in DFARS 212.301(f). Therefore, I interpret that this clause does not, in fact, apply to my contract. If I fail to include it, however, I will inevitably end up on a naughty list with a command from above to modify my contract to include the clause, and shame on me for willfully ignoring the PDS. As I understand it, PDS is implemented by DPAP. Clearly, I think DPAP has it wrong on this one as well as with DFARS 252.203-7002, where I received the same error. However, I’m so broken down by the unending tsunami of data calls, reports, reviews, requests, templates, instructions, validations, and audits that I’m not sure I can think anymore. But maybe that’s the goal. Have I lost it? Is my approach to provisions and clauses relating to the acquisition of commercial items sound? J
  3. The Problem of Proposal-Based Competition

    True contracting professionals have lost creative control. Management and lawyers are so risk averse that you are mandated to use cookie-cutter templates for which the contracting officer only completes "fill-in" portions of the award/solicitation template. There's no creative thinking or an individualized, tactical approach to anything because that is inherently risky. Where does that aversion to risk come from, and how do we change it?
  4. Contracting Scandals

    Is it just me, or is this scandal getting relatively little fanfare given its overall size and how many high-ranking civilians/military officers were ensnared by it? I've talked to typically informed folks outside of the government who are apparently completely unaware of this scandal, yet they were able to tell me all about the GSA conference scandal from a few years back.
  5. DOD's Section 809 Advisory Panel

    Evidently this panel has produced a draft proposal for a "Streamlined Procurement Procedure" that pertains to "awards of $10 million or less" and is currently putting together a roundtable of representatives from various DoD agencies to discuss/provide feedback on the procedure. The proposal describing the new procedure was provided to the entire contracting workforce in my agency. The proposal is pretty awful.
  6. Let me be more specific with my question. I’ll preface with a statement: Logically, if a small business concern truly provides best value for a specific acquisition, they will receive the contract award regardless of whether or not the acquisition is set-aside for small business concerns. Therefore, by setting aside acquisitions for small business, the Government, at best, only matches the value that it would receive under full and open competition, but there’s also the chance that the Government receives sub-optimal value. What evidence do we have that small business preference programs provide enough surplus benefit to overcome this issue, or are taxpayers subsidizing small business concerns at the expense of the economy as a whole? I am specifically interested to know if there is a study that addresses this question or something similar to it. I’m not interested in *any* study. The relative tax burden of small businesses and corporations don’t tell me whether or not taxpayers, as a whole, derive a net-positive economic benefit from FAR 19. I want data, not rhetoric.
  7. While we're on the subject, can we get rid of FAR 19 and the applicable sections of its statutory basis? I'll settle for a study on whether or not the policies implemented through FAR 19 provide a net macroeconomic benefit.
  8. Software Maintenance - IT Brand Name

    Step back and think about what you’re actually purchasing for a moment. If this is a typical commercial software maintenance requirement, you’re not actually purchasing individual bug fixes, updates, etc directly. What you’re actually purchasing is a subscription for a fixed period of time (typically one year) that provides access to the bug fixes, updates, etc. The contractor’s priced deliverable would be the subscription itself, usually priced per software license/user. Again, this is assuming we’re talking about a typical commercial software maintenance requirement. What you’ve been told makes no sense. You can have multiple deliverables under a single contract, all of which could be covered by a single brand name J&A. Even if you had multiple contracts, you could potentially write a class J&A. What would make sense to me is if what you were told relates specifically to the renewal of software maintenance subscriptions. If you don’t include options on your software maintenance contract for future annual renewals, you’ll need to award a new contract each year to renew the subscription. Each iteration of the contract would require its own brand name J&A.
  9. Basic question: If a contractor employee, based in the United States, goes TDY to an overseas location during the course of performance of a DoD service contract, does the Defense Base Act (DBA) apply? Background: Suppose you have a DoD service contract where performance occurs within the United States, with the exception of an annual TDY that requires a contractor employee to travel overseas. The employee (a U.S. citizen) lives in the United States and, aside from this TDY, also works in the United States. The DBA clause is not included in the contract. Assume that, since the employee is a U.S. citizen, there is no applicable waiver from the Department of Labor. FAR 28.305(b) specifies, “The Defense Base Act (42 U.S.C. 1651, et seq.) extends the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. 901) to various classes of employees working outside the United States…” In determining whether or not DBA applies, FAR 28.305(c) simply refers to 42 U.S.C. 1651. The interpretation of 42 U.S.C. 1651 is very broad. For instance, DPAP released a policy memo in 2003 titled “Inclusion of Defense Base Act Clause in DoD Overseas Contracts” which states, in part, “the Defense Base Act clause at FAR 52.228-3 should be included in all DoD service contracts to be performed (either entirely or in part) outside of the United States…” So, based on the above, I make the assumption that even a single TDY overseas could be considered performing, in part, a DoD service contract outside of the United States. Therefore, the DBA applies and the clause needs to be included in the contract. This would have pretty enormous implications because this situation is pretty common, and the DBA clause is rarely included (at least in my agency) in contracts unless contractor employees are actually living and working overseas in places like Afghanistan/Iraq/Pakistan. There’s really a dearth of information out there on the DBA specifically as it relates to its applicability in Gov’t contracting. My relatively fruitless searches are crowded out by a mass of results originating from the DBA industry, which apparently must be pretty lucrative.
  10. For the purpose of the question at hand, whether or not the employee is covered by DBA insurance does not concern me. I am specifically concerned with whether or not the Act applies.
  11. So I wonder what happens if the priest receives that 11th emergency call; does he say it's not in his contract, or does he answer the call but later submit a claim to the Government? I also wonder how typical it is for a priest (or any individual, really) to be hired in the private sector on a lowest price technically acceptable basis. How often are individuals hired because they meet the minimum qualifications and are willing to accept the lowest salary?
  12. I once worked in an office that used to prefer to give post-award debriefings in person and have an open dialog with the unsuccessful offeror. However, after a couple of contentious briefings in which protests were later filed, the office instituted a policy of providing only written debriefings. The offeror then has a limited timeframe in which they could submit questions, also in writing. I can understand why contractors would be put off by that.
  13. Funny or tragic? Part I

    Most of the poorly written J&As I've seen in contract file audits have been those written and approved solely by a lazy contracting officer, and often they also fail to publicize the J&A. J&As that are reviewed and approved by multiple higher-graded contracting/legal personnel (in this case, two GS-14s and a GS-15) are typically not so poorly written and justified. You have to keep in mind, too, that this probably went through some kind of policy review prior to the CoCO or competition advocate reviews. It reflects poorly on an entire contracting organization as opposed to one CO.
  14. Funny or tragic? Part I

    The obfuscation of FAR 8 and 16 in this document is not very surprising to me. When I worked in a USAF contracting office, I knew of COs that believed that the AF NETCENTS contracts were federal supply schedules governed by FAR 8 rather than FAR 16. I had hoped that maybe the CO in this case lazily chose the wrong document template (i.e. a FAR 8 template in lieu of a FAR 16 template), but the numerous errors in the section titles, such as section "Y" and VII, lead me to believe that they manually typed up this little number.
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