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About DWGerard1102

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  1. It was changed after this GAO ruling: https://www.gao.gov/products/D09410#mt=e-report I lost all my CFR bookmarks when my computer was reformatted about a year ago so I can't find where in the CFR the changes were made. It was prior to 2016 as that language is being used in the FAR case that Pepe linked in his message.
  2. I agree, but I have had many cases where the KO and the Contracting office have refused to abide by the 13 CFR regulation and only go by what the FAR says. They send in a KO protest to the SBA because the FAR says one thing, then the SBA responds with the CFR regulation and then the SBA has to argue with the KO/Contracting Office on which regulation is applicable. One case where this really needs to be resolved is in the FAR 19.000(b) language. The FAR language is interpreted to mean if a procurement has the slightest OCONUS touch (Product: US; Contracting Office: US; Delivery location: OCONUS), then the procurement is exempt from FAR 19. The CFR has for years indicated that SB regulations apply to US procurements when the preponderance of the process (as above), is domestic and FAR 19 is only exempted when the preponderance of the procurement is OCONUS (Product: OCONUS; Contacting Office: US or OCONUS; Delivery location: OCONUS).
  3. In my experience, Contracting offices rarely if ever go beyond the FAR, and in the DoD offices they are specifically prohibited from using non-FAR regulations without specific approval from well above the KO level. It is frustrating to see CFR regulation changes that allow KO's to do something but the FAR lags years behind the change to the point where people forget that the change has even been contemplated.
  4. Rae, I am a stranger, but I am also someone who has worked as a PCR and size specialist for the SBA for more than 5 years. The fact that company B receives 70 percent of its work may indicate that it is affiliated with company A but that would be viewed by the size specialist under 13 CFR§ 121.103(g). In this case I would look at the trend of other work and determine if the percentage going up, down or remaining stable. More than likely I would lean toward affiliation in this circumstance but could be dissuaded with more information. The mutually employed individual might or might not add to that, depending upon his or her role in the company. If the employee" was more than the usual employee for hire (described in the CFR: "officers, directors, principal stockholders, managing members, or key employees, and the one concern is furnishing or will furnish the new concern with contracts, financial or technical assistance, indemnification on bid or performance bonds, and/or other facilities, whether for a fee or otherwise "), and could control (positive or negative) both companies or could determine what business one or both companies could do, then that would be an added affiliation factor. The prospective Mentor Protégé agreement would not protect the companies from being found to be affiliated, the MP program only protects companies from affiliation from the MP itself or any joint venture established by the MP partners. A MP will not protect companies from affiliation outside of the MP relationship, which is described in this case. I cannot say for certain that your scenario WILL be considered affiliation, only a full size determination could do that. I have been responsible for about 6-10 determinations a year for the last 5 years so I have dealt with scenarios like this; and each case is unique so I would find an attorney who is familiar with the SBA regulations (or a friendly Procurement Technical Assistance Center), and have a complete analysis completed for your case.
  5. DWGerard1102


    Retreadfed, Well, the FAR is part of the CFR so it is the same body of regulations. Its just easier to say "the FAR and nothing but the FAR!" but if there is a law, statute or regulations that is newer, or better defines the intent of the source law, why should Contracting ignore that law, statute or regulation? Cite the regulation and move on smartly would make sense to me, but the current atmosphere in contracting is to wear FAR (and only FAR) blinders and ignore updated CFR regulations that would improve the contracting process. I am not talking about regulations from left field, what DOL or internal SBA regulations say that are not related to contracting for the Government, I am talking about the source regulations that the FAR is built upon. FAR 19 is full of links to SBA regulations that apply to every contracting organization except those exempt from the FAR. It's not that hard (I believe), for Contracting professionals to understand which regulations apply and which are inappropriate and only apply to the SBA itself.
  6. DWGerard1102


    Retread, the CFR has changed many of the regulations dealing with FAR 19 on topic such as the Non-Manufacturer Rule, the Simplified Acquisition threshold, etc. but many organizations will not allow KOs to use those changes until they are added to the FAR. An example: the CFR changed the NMR last year (FY 17) to eliminate the need for a waiver for any procurement valued at or below the SAP (13 CFR § 121.406(d) . The FAR currently states that a waiver is required for all procurements exceeding $25K (19.502-2(c)). Another change is for procurements that are not totally outside the continental US (OCONUS) but have one aspect that is OCONUS such as the delivery location or minor labor costs for set up or assembly. Even when that labor will be the responsibility of US contractors, some procurement offices refuse to deviate from FAR 19.000(b) (applies only in the United States or its outlying areas), despite the CFR change that removed the restriction for all but requirements that were performed totally OCONUS. Currently a requirement can be awarded in the US, with products manufactured in the US, from US contractors, delivered and set up by US contractors (sometimes using foreign subcontractors and sometimes using US prime contractor personnel), to be delivered to a foreign location and the KO will use FAR 19.000(b) to reject a SB set aside despite the ONLY foreign aspect will be the spot where the US product will be placed.
  7. DWGerard1102


    Add to that problem, most Contracting offices are told by their leadership and legal team that if its not in the FAR, then it doesn't apply to their jobs. Things like changes to the CFR, new laws enacted, etc. are not even looked at or if known, are prohibited per those offices. I deal with that all the time when KOs refuse to use the new CFR regulations because the FAR still has the old information.
  8. This is not related to the legislation, but 17,000 FBI employees are moving to my neck of the woods, a LONG way from DC, over the next few years. If Congress doesn't do it, the simple cost of doing business in DC will eventually do it for them. It seems the old FBI building is practically falling down and would renovating it would cost more than moving 17,000 employees to the hinterlands.
  9. DWGerard1102

    Has strategic sourcing gone too far?

    To me, its a shortcut that is of dubious value. First, it relieves the CS/KO from anything close to market research. If market research is actually completed that finds a better way, better price, faster delivery, well, too bad. The agency's "strategic sourcing" contract vehicle trumps all of those. Second, it creates another barrier for small businesses. I have seen so many "strategic sourcing" contract vehicles that had one or no small businesses, and those vehicles have a life that may be exceed 5 years. A small business wants to fulfill your requirement? Too bad, you have to wait for another 4-7 years until the next solicitation is release and HOPE that the CS/KO does their market research and finds that small business and its cohort. Otherwise its another "no small businesses found that can meet this requirement" market research document once again. Remember, the CS/KO for that program may not have done any market research since that last re-compete, so those skills might just be a bit rusty. Strategic sourcing is an insult to the buying ability of the Government. It says the whole procurement team cannot find the best pricing in the market, is not consistent in sourcing those products and services, and they take too long. Whether or not those accusations are true is up for debate, but the system itself is not without blame; its hard to be fast and efficient when the procurement system has so many anchors attached to it.
  10. DWGerard1102

    Real Contracting Pros

    I love the "she comes prepared with fact" part of the admiral's quote! I remember a negotiation I led in 2010 for a defense contractor with Australia's military where being prepared with the facts was absolutely the key. The Aussie's KO threatened to terminate their contract for an aircraft assembly that had not been built since the 1970s where the contractor had delivered a portion of the contract on time but later articles were delayed as the quality of the later parts was being questioned by the contractor QA team. The fly in her (the KO), ointment was that I had actually read the Australian version of the FAR, and I knew she could not terminate the contract as none of the precursors (show cause, etc.), had been issued and the Aussie PM had authorized the delays due to the added security of the QA checks (without the KO being aware of the authorization). The Aussie technical team bought me beers that night, they had never seen the Aussie KO so angry! She left the negotiation in seconds after it concluded and did not come back for the reception afterwards! Knowing the facts (and the associated procurement regulations), is vital for a negotiator. Oh, and the contractor delivered all of the articles in the agreed upon time plus Australia got a couple extra assemblies for free, so they were a happy customer! Being prepared with the facts is absolutely necessary for Contracting professionals, whether assigned as a negotiator or not!
  11. Sorry this is so late, I have been away for cancer treatments and just returned to my office this week. 13 CFR § 121.404(d) states :"Size status for purposes of compliance with the nonmanufacturer rule set forth in § 121.406(b)(1) and the ostensible subcontractor rule set forth in § 121.103(h)(4) is determined as of the date of the final proposal revision for negotiated acquisitions and final bid for sealed bidding."
  12. There is one exception to the rule that the initial proposal including price is when size is established. That exception is when a violation of the Ostensible Subcontractor rule is alleged in the size protest. In those cases the size is established at the time of the final proposal. The reason for that exception is that the contractor may have changed its proposed personnel from its initial proposal when submitting its final proposal which could affect whether or not it was a violation of the Ostensible Subcontractor Rule.
  13. There are more than a dozen different forms that are the equivalent of the DD 2579, and I see a few of them every day in my role as a PCR. NASA has its Form 1787, the CDC has a computer based system without a form number associated with it, GSA uses its Form 2689, plus there are two different versions of the DD 2579 that are being used at this time. The purpose of those documents is to inform the Small Business Specialists at the various organizations what the acquisition plan is in a nutshell so that they can concur with or dispute the chosen plan of action. After that the forms are sent to the appropriate SBA PCR for concurrence. When I receive the forms, I check whether or not the plan is to set the procurement aside or not, along with a check of the selected NAICS code. I frequently send the documents back for incorrect NAICS codes, and I have non-concurred with the acquisition plan to not set the procurement aside on a number of occasions. After that, it becomes a negotiation, in which I show them how they can set the procurement aside, show how their market research was not complete, and how their organization is not meeting a specific goal. If I truly believe that the procurement should be set aside and the KO still refuses, I non-concur with the Small Business Coordination form. After that I can issue a SBA Form 70 which appeals the issue first the local HCA of the organization and if no agreement is reached, it ramps up to the senior HCA at the organization's HQ and the SBA Office of Government Contracting executives.
  14. DWGerard1102

    Contracting Scandals

    In my case it would have been simply to act on the information that was provided, do the right thing and inspire confidence that when malfeasance is discovered, leadership will do something about it rather than punish the one who found the evidence. I was not looking for a promotion, I simply respected the concept of integrity, honesty and ethical work, and when I found something that did not match those ideals to the point of criminal behavior, I reported it. The real failure was how my leadership handled it, I was ridiculed, told to shut up and go back to work and that my evidence was "weak" despite it being well documented with photos of non-existent lay down area, no work being conducted despite more than 50% of invoices approved by the PM, and evidence of earlier fraudulent work being signed off on.
  15. DWGerard1102

    Contracting Scandals

    Joel, Karma played out in the end for the KO, he died less than 6 months after retiring when he had a heart attack while gardening in his back yard. He wasn't a bad guy to work for but he was a coward when it came to standing up to the bully that was committing the crime. I think it weighed heavily on his heart and spirit what he had failed to handle properly, which is a heavy burden for sure.