cdhames

jwomack, that seems in direct contradiction to FAR 13.303-5(c) and (d).

well, let's assume historical workload and pricing wouldn't be a concern. Under a Requirements contract, how would you award a TO within 4 hours starting at 12AM on a Saturday?

That would be the natural assumption since both delivery and quantity are unknown (assuming single award). The problem is that TO's couldn't be consistently issued with a 2-4 hour response time. What if something broke on a Saturday or at Midnight? The contractor is going to be required to be on call 24/7 to meet the 2-4 hour window but how do you issue a TO against it? Do you park money on an annual TO? I don't think a C type service contract would be appropriate either (disregarding that fact that quantity and delivery are an unknown). What kind of unit of issue would you use? We've just been debating the scenario back and forth and no one's been able to propose a good answer. Someone suggested a 5 year BPA to meet the "long-term" requirement but as in the IDV example, you either do a single award with J&A (assuming FAR 13.5 above SAT) to comply with the emergency nature and 2-4 hour response time, or are compelled to get competition which you would then be unable to comply with the 2-4 hour response time. Thoughts?

How would one structure a long-term emergency services vehicle for the remediation/restoration of facilities (for example a water pipe rupturing)? The contractor would need to arrive within 2-4 hours after notification and immediately begin restoration service. Let's say an incident occurs on a Saturday and base services are not available (other than to shut off the flow of water). The only way I can think of doing this would be foregoing the "long-term" portion and single sourcing a BPA to a vendor 12 months at a time. Anyone have experience under a similar requirement?

I'm not new to federal contracting but I thought this would be a good place to ask this question, and hope that in some eyes, I'm not overcomplicating things. I've often ascribed the borrowing of FAR Part procedures as the borrowing of a section of a FAR but I've been asked whether that's accurate and didn't have a good enough answer. For example someone in my office wants to borrow 1 line from part 15 in a FAR Part 13 acquisition. My answer was that they're borrowing the evaluation procedure, not the evaluation sentence under FAR Part 15 yada yada. But then I'm asked what the definition of a procedure is and I didn't have an answer. It's not defined under FAR Part 2. So my question is, what is a procedure in the context of using a "combination of procedures" from any parts of the FAR to craft an acquisition?

If the basis of labor cost is lower than that of the prevailing wage, the estimate wouldn't appear to be accurate IMO. If we require a contractor to use RS Means, and labor cost is $10 dollars, and the bare cost is $20; and the prevailing wage is $20, and material is $10, but the contractor proposes $20 as required (based on RS Means), is that fair? What contractors tell me is that they normally pad labor cost (extra quantity) to adjust for the difference. That's fine if a CO wants to accept it like that (his/her decision). I'm just asking if there's a better methodology. I'm sorry if I'm not coming across clearly. What if the contractor has a requirement where they have to propose only labor costs and by contract are required to estimate using RS Means cost data? Or what if there are Non-Priced Items (NPI's) that require a contractor to use RS Means "crew size" cost data to calculate labor cost? Assuming Task Orders are fixed price.

Good morning and happy EOFY16. I'm interested in knowing how other construction teams structure their IDIQs in terms of reconciling RS Means labor rates with Prevailing wage labor rates (assuming RS Means is the required pre-priced UPB required under contract). Here are my assumptions: I've looked through the RS Means cost data labor rates at the back of each cost data book and note that the national union rates are generally up or down, but mostly below prevailing wages. I've noted that RS Means uses a City Cost Index (CCI) to apply a rate adjustment based on locality which is often a rate increase per locale, but often after application, the wage is still under the prevailing wage (under the latest Construction Wage Rate). I understand that using RS Means comes with issues and there is an ongoing debate about whether it saves the Government money (I understand many feel RS Means prices are inflated and does not save the Government money). So I've been perusing SABER IDIQ Specifications/Statement of Works that incorporate RS Means as a UPB and Costworks, or e4Clicks as the estimator (or Timberline for older specs). I see a lot of the specifications request that the contractor use total bare costs, based on national average rates, defined by the RS Means price books. What I hear from contractors is that these rates do not often match the prevailing wages, and so they are forced to provide "extra" labor hours to compensate for the cost of the prevailing wage they are operating under. I've heard it's possible to integrate a custom set of labor rates depending on the estimator a contractor or agency is using (such as plugging in prevailing wage rates in the estimator of choice) but I haven't actually seen this laid out in a Spec/SOW example. My question is, how are your agencies handling this issue (is it a issue?), or is there a generally accepted better method to pre-price construction projects than using RS Means that your agency is using? I admit I may not fully understand all of the issues with using RS Means so please understand I am on the learning curve.

If I could use an example to articulate a request for help: Let's say a DoD agency has a construction requirement for the installation of HVAC. The contractor proposes a "custom" HVAC unit. During negotiations, several elements are negotiated down to "standard" units in order to save on cost. After some reluctance, the contractor agrees to the revised specs at a reduced price. Assume the contractor negotiated in good-faith. Fast forward 6 months. The contractor has substantially completed the effort but states they cannot obtain the efficiency levels with the "standard" units, and cannot locate any other "standard" sources in the market to meet the required efficiency levels. The subject matter experts, after review, also cannot find any "standard" units in the market to meet the required efficiency levels. The CO in charge of the contract asks both parties what is needed to meet the "efficiency levels". Contractor replies only a "custom" HVAC unit. The customer, at this time wants the contractor to comply with the stated efficiency levels. If the Contractor has to eat the cost, then they feel the Contractor has to eat the cost -they agreed afterall to the reduced scope. After lengthy negotiations, the Customer finally agreed to revise the SOW and re-add to it, the original requirements that were removed, due to the fact that neither party can find a "standard" source to meet the efficiency levels. The CO would like to come to a fair and equitable solution. The contractor is operating at a loss now, and has agreed to a further discount on a revised proposal due to their part in not identifying this issue up-front; and has essentially re-proposed the "custom" solution to include additional labor to remove the "standard" units. After another review, the customer has returned to their original position and wants the Contractor to eat the cost. CO has been advised by various parties that this could be a differing site condition, but believe this is really a sourcing issue, on top of poor planning by all parties and is pushing for an equitable solution. Assume things are at an impasse now. Based on the facts as stated, how would you have dealt with/resolved this situation?

joel, I'd be interested in finding out how the USACE handles the DoDi 5000.72 COR requirement as well since they're DoD.

I agree with the sentiment but I'm still not sure I agree with the way you're going about it. FAR Subpart 46.4 discusses the need for a surveillance plan, and how to define them (i.e., the plan should specify all work requiring surveillance; and the method of surveillance). FAR 37.604 is just a reference to FAR Subpart 46.4 as you stated. FAR 46 states that "This part prescribes policies and procedures to ensure that supplies and services acquired under Government contract conform to the contract’s quality and quantity requirements." I have a construction contract with a requirement for quality surveillance, IAW DoDi 5000.72. Assume I plan to appoint a COR. Does Part 46 apply? If you define services acquired under Government contract as non-construction, then no, although I don't know why you wouldn't (we're attempting to define construction in terms of whether Quality Assurance applies, not a clause). But I don't have a right answer here (this is part of my question). If FAR 46 does apply to construction, then the assumption is 46.4 applies as well. In that case, we do need to ensure that services acquired under Government contract conform to the contract's quality requirements, and we should specify work, and method of surveillance. Assuming you don't agree with this line of reasoning, how do your CORs conduct surveillance?

Thank you. I'm not sure how FAR 52.246-12 answers this question in terms of what to use for COR surveillance; particularly when compared to FAR 52.246-4 which essentially states the same thing but for FFP Services. Are you referring to the first paragraph which states, "The Contractor shall maintain an adequate inspection system ..."? Both clauses essentially state that the contractor is responsible for inspection; but that the Government reserves a right to step in and inspect at any time. As far as using specifications for surveillance, I agree; but what specification document are you suggesting? For many construction projects, only Statement of Work and drawings exist, to include mention of any "widely recognized standards or specifications promulgated by governments, industries, or technical societies" as stated by FAR 36.202(b) which opens surveillance up to every published regulatory specification in the U.S. concerning construction. I think this is where a QASP simplifies things -where a COR or QAP (for old) can condense the relevant "widely recognized standards" into a manageable surveillance plan. My question is, is a QASP right for construction? There seems to be no clear guidance on what construction surveillance consists of in the context of appointing a COR.

I'd be interested to know how Operational DoD offices have been handling the surveillance requirements for construction contracts. Under FAR 46.4, - Quality assurance surveillance plans should be prepared in conjunction with the preparation of the statement of work. Under DFARS 246-401 - For contracts for services, the contracting officer should prepare a quality assurance surveillance plan to facilitate assessment of contractor performance, see 237.172. ... (this seems to imply FAR 37 Service contracting - does FAR 37 Service contracting include construction? Under Subpart 37.3 - it discusses Demolition and Construction Wage Rates - it seems the argument on whether Construction contracting can be considered a Service is becoming more obscure, instead of clear). DoDi 5000.72 - Table 2 (Minimum requirements for Types A, B, and C training are described in Tables 2, 3, and 4, respectively.) infers that a Surveillance Plan is required. Perform technical and administrative contract surveillance and reporting responsibilities in accordance with the letter of designation and surveillance plan. However in DoDi 5000.72 - Table 1 it suggests a QASP only under performance-based services (not mentioning a QASP anywhere else in the DoDi). 24. For a performance-based services contract, order, or agreement, perform on-site surveillance in accordance with the QASP Otherwise, the DoDi is silent on surveillance. Does this mean the agency should determine their own surveillance requirements for construction? There doesn't seem to be anything written that says we shouldn't build a QASP in conjunction with construction Statement of Works. But for those that do construction contracting, it seems redundant to do so. In fact, the entire COR designation requirement for construction seems redundant since the majority of Program Managers already perform inspection (blue books, daily inspection logs, etc IAW with their own internal Civil Engineering procedures... which are ultimately handed over to contracting as part of the close-out file). How do your office handle surveillance?

I read the following quote from Vern Edwards today, under a different discussion and I wondered: Should we always make the assumption that our Government SME's are capable in their field? I know this might be a profound (or even unintelligent) statement but... Bear with me a moment. I realize the question might immediately beg for a quick and decisive answer, but my thought is this: Our law and regulation is crafted in such a way that it automatically assumes a sure and competent hand of the Government executes something in a sure and competent manner. There's really no room for error. Our FAR regulation is stated in a specific manner, to be interpreted (for the most part) a specific way and implemented in such a way. Sure, there is sometimes, difficult to discern language but we normally reach consensus on how that something should be interpreted. GAO could loosely be described as such a consensus builder. The Supreme Court as another. My point being, in the general context of day-to-day activities, regulation is somewhat unforgiving. It assumes expertise. Vern's statement above does the same. Now generally I would agree with the sentiment; a Program Manager "should" be able to draft a recently reliable SOW. But in operational reality, most of us know this just isn't the case. Error and fallacy is built into human nature. Awhile back, I read a Quora post by Kostadis Roussos, former Chief Software Engineer at Zynga (article here: https://www.quora.com/Why-would-anyone-want-to-work-for-Zynga ). A short time after Zynga went public their common stock fell off the proverbial cliff, from somewhere around $15 to $2 (where it's been sitting nearly ever since). During the fall, an exodus of talent took place as top executives left the company. Zynga attempted to counter the exodus. Roussos' article on Quora was one such attempt. In the article he discusses market disruption in the field of software engineering in the mid to late 1990's. How one group at MIT who thought provocatively and in a different way about writing software, changed the industry. It's about a 50 year model of determinism that was disrupted by new, randomized thinking. As the context goes, what if software engineers planned for failure? Instead of ignoring failure, and attempting to reduce it through a deterministic model, what if they planned for failure instead, and respond to failure through intelligent modeling. So as a former, aspiring software developer, this article had a profound effect on me and I've since thought back often about it. I look at the FAR now, and the way our Government programs and policies are set up and I can't help but ask, why do we have such a hard time with failure, and wouldn't it be better to plan for it in our acquisitions? To write contracts that attempt to error check and deal with it, instead of forcing failure into the standard model of deterministic outcomes? When I read the quote above, I both agree and disagree at the same time. I'd like Government experts to be experts, but I know the vast majority (myself included) are not; and we make mistakes. Some of us don't know what we don't know yet. Some of us can't write a SOW yet (or we can write one, just not a capable version of one). There's an inflexibility with regard to the incapable, or untrained. A built in intolerance that I think we might be able to redefine. So that might sound a bit lofty, but I'd be interested in starting a discussion on it, in more than a candid fashion. What if we allowed a contractor to write a SOW, or take part in it's development? What are the takeaways? Would it make it better, and would it put the Government in an unfavorable position? I'm not suggesting the contractor write the SOW, and then the Government accept it as is. I'm referring to a collaborative effort. What's best for all parties, the public included.

See FAR 37.602(a) which says: (a) A Performance Work Statement (PWS) may be prepared by the Government or result from a Statement of Objectives (SOO) prepared by the Government where the offeror proposes the PWS. additionally... (c) Offerors use the SOO to develop the PWS; however, the SOO does not become part of the contract. The SOO shall, at a minimum, include— (1) Purpose; (2) Scope or mission; (3) Period and place of performance; (4) Background; (5) Performance objectives, i.e., required results; and (6) Any operating constraints.

Thanks Vern.

Under FAR Clause 52.222-11 - Subcontracts (Labor Standards) , does the actual reporting requirements stop at the Prime, or at the contracting officer? Fixed Price Construction IDIQ. All contractors/subcontractors are SB. As an example: Prime uses one subcontractor. The subcontractor (acts like a prime and) subcontracts all of the actual work. The Prime does not interpret 52.222-11 to mean that all of the document generation requirements under this clause get sent to the CO; rather, submittals like Payroll, Form 1413, Apprentice Certifications and such stop at the Prime. Prime believes they only need to submit said documents on the first tier subcontractor. Initially I read the clause and disagreed; it seemed an easy way around Federal labor laws if this were the case. After reading through para (d)(1) and (d)(2) of the clause a few more times, what seemed clear at first no longer seems so. Para (d)(2) states that the Contractor shall deliver an updated 1413 for additional subcontracts, which seems to imply that additional lower tier subcontractors do not generate a new 1413 -they just get added onto the current one. After thinking about this some more, I think it's a poorly worded and confusing clause. I think the intent may be that a subcontractor should read (d)(1) as if he were the Contractor being referred to in the clause, and therefore the requirements apply to himself/herself as well. I want to say that in (d)(2), any subsequently awarded lower tier subcontracts get updated on the 1413 for that subcontractor. In turn, the lower tier subcontractors have to repeat this process until no more subcontracts occur. Can anyone weigh in?

Regarding the use of Unit Pricing Books such as RS Means which provides pre-priced, construction cost data for estimation purposes -for those you out there that use this method for price comparison in your Construction contracts, do you consider your evaluations to be accurate? What if your Prime is a construction management firm that takes 15% and subcontracts the rest out?

I may be missing something; maybe a memo published in an earlier year -it's been awhile since I worked small services; but the DoD (and AFFARS) regs still seem to require a 2579 filed for any requirement over $10K. The publishing threshold under FAR 5.101(a)(2) changed awhile ago, from $10k to $15K (to display in a public place for 10 days; or in lieu of a public notice board, any electronic means, i.e., the GPE FBO -i hear some agencies allow $15 - $25k to be posted on Facebook but that's a different discussion). On the DD Form 2579 there's a little box (Block 13 - Synopsis Required) where we're supposed to check whether or not a synopsize a requirement: Yes or No. If No, we're supposed to cite the exception to publicizing (it even has a note that reads, "if 'No', cite FAR 5.202 exception"). I have a project that falls within this awkward range of $10K to $15K. Accordingly, DFARS 219.201(c )(10) requires review for all projects over $10K, and that review must use the DD Form 2579. AFFARS 5319.201(d)(10)( B ) reiterates this requirement for a $10K review on the 2579. So, to summarize, there's no publishing requirement for contracts valued at, or under $15K. Yet we're required to file a DD Form 2579 for projects above $10K and cite a reference for an exception to synopsize. I spoke with my Small Business specialist and that person could not provide specific guidance, however; that person does expect me to use a FAR 5.202 exception, or to synopsize the requirement. I don't blame them because the regs seem contradictory but clarification would be nice. Has anyone experienced this, and what are your solutions?

Great idea Don. Unfortunately this name is taken (GPARS.com) but there is available GPARS.CO. Irony is quantifiable.

Vern, Thanks for the reply. I guess my point is that we have the FAR specifically calling out procedures for when Evaluation Factors are used; and yet it doesn't clearly define what an Evaluation Factor is (granted the provision may be used). Why say Evaluation Factor when a phrase like competitive procedures would fit better, if the intent is to distinguish between sole source and competition? I will give your reply some thought.

I realize it may seem evident but I'm somewhat confused. I was reading through FAR 12.602(a) and it reads as such: This seems to imply an option not to use evaluation factors, which seems straightforward enough; but in the absence of evaluation factors, what is there to evaluate? I assume this part of the FAR means to imply that if other factors are used in lieu of just Price, then you can go ahead and use xx provision. It gets more confusing under FAR 12.301©: Here again FAR Part 12 seems to imply evaluation factors are not always used. I'm even less confident that Price is to be understood as an Evaluation Factor, and should just be it's own little thing. However. In FAR Part 13, Price is commonly referred to as a Factor. (I assume Factor, and Evaluation Factor to be synonymous but maybe I'm wrong?) FAR 13.106(a)(2): FAR 13.106.2( B )(3) FAR 12 seems to imply Price alone isn't an Evaluation Factor; and FAR 13 seems to do the exact opposite. So which is it? Should I assume that when using Price alone, that no evaluation exists, and therefore the use of Evaluation Factors is irrelevant?

DoD, AF I have an environmental study requirement that culminates in a Final report. Until the Final report is generated, the Government receives no benefit, but there is a Draft Report that gets submitted prior to the Final. The Study consists of a study, inventory and data collection of wildlife and intends to cross multiple fiscal years. We're currently using annual appropriations, O&M. Because the Government receives nothing until the Final Report is submitted, I'm inclined to call this a non-severable service; and this is how I've presented this to my CO, Policy and Legal. They all tentatively agree, based on the data available, that we can use O&M funds crossing fiscal years, for a non-severable service. My question is related to CLIN structure, particularly how to structure payment? I've read through the AFFARS guidance at AFFARS IG5304.7103 and DFARS 204.7103. At DFARS 204.7101 it defines "Nonseverable deliverable" as a deliverable item that is a single end product or undertaking, entire in nature, that cannot be feasibly subdivided into discrete elements or phases without losing its identity. My Question: If I divide the requirement into elements for CLIN/payment purposes, does this then violate the definition above? I can't imagine a contractor working for 2+ years without payment. Am I looking at this wrong?