Matthew Fleharty

If hightytighty is in the situation I think he/she is in, the contractor's concern regarding providing a Certificate of Current Cost or Pricing Data for orders stems from being required (contractually) to use predetermined rates to price out work that one, two...five years down the road will almost certainly be different than the rates they're realizing. The contractor is likely arguing that it is, therefore, impossible to execute the required certification that the contractually required rates are accurate because their actual rates are not the same as the rates used to price out the work.

Not to pile on, but I agree with the position that utilizing or attempting to utilize a "blind" source selection process is not a wise approach. Your time and energy would be better spent researching other, more impactful techniques, such as avoiding an "essay writing contest." If you search these forums I'm sure you'll find plenty of helpful information. Look here for starters: For example, try oral presentations (FAR 15.102). Maybe you could even have your evaluators wear blindfolds if you're still concerned with the identity of offerors...

(Emphasis added above) Sounds like your issue isn't just with labor rates, but also with the inability to discriminate between levels of technical competence amongst shooting instructors...

I'm not sure the example used by Representative Duffy in his press release is indicative of the problems facing Federal employees on a day-to-day basis... https://duffy.house.gov/media-center/news/duffy-connolly-bill-offers-additional-protections-for-whistleblowers

Without knowing the particulars of the contract in question, I hesitate to offer any advice on how to handle the situation; however, since you asked "where to begin," a good place would be the FAR 52.212-4 clause, specifically paragraph (l) regarding Termination for the Government's convenience which states in part (emphasis added): Sounds like the notice of termination was never issued until now (or maybe still has not been issued), so ask yourself: what work was performed by the Contractor prior to the notice of termination? On the other hand, if the Contractor insists on submitting a claim you should follow FAR 52.233-1 per paragraph (d) regarding Disputes: Ultimately, be reasonable about the situation and use your best business judgment - what costs did the Contractor incur in preparing or trying to fulfill the contract?

What's the alternative? Or is there one? I'd imagine there would have to be because, according to the Constitution, Congress has the power of the purse...

Why?

Read the prescriptions and you'll notice the difference. FAR 52.217-8 is for services while FAR 52.217-9 is for other instances in which an extension of a contract with options may occur (think about the use of options in supply contracts).

This topic was covered recently in the following forum thread (don't be deterred by the use of "contingency" in the title...the posting/notice requirements from a general standpoint are discussed at length throughout):

Pepe, What authority would a contracting officer use to do this? I'm not aware of any (but I may be mistaken)...

Let's first clear up the "Christian Doctrine." The existence of the "Christine Doctrine" does not give the Government authority to make a change to a contract - if you read the case and the resulting legal analysis regarding the "Christine Doctrine" it will state something along the lines of: That does not mean the Contracting Officer can make that determination and then incorporate the clause into the contract unilaterally. If you're relying on the "Christine Doctrine," the clause will not appear in the contract, then you'll roll the dice when/if a dispute arises causing the Government and the Contractor to appear in court. The judge will then decide if the "Christine Doctrine" standards are met. As for the other, larger issue, regarding changes to contracts, that all depends on the contract in question (is it commercial or non-commercial, fixed price or cost-reimbursable, etc.). Read the contract and figure out what the contract says regarding changes to it and go from there. What you won't find in any of the Changes clauses is the ability to unilaterally modify the clauses of the contract. So here are some options to consider (not an exhaustive list): If you and your organization's legal counsel are confident that the clause(s) meet the Christian Doctrine standards, don't bother trying to negotiate their inclusion. If a dispute arises over the issue that the clause governs, per the "Christian Doctrine" the clause will be read in and applied appropriately. If you and your organization's legal counsel is confident that the clause(s) meet the "Christian Doctrine" standards and you want the contract to read correctly, leverage that to incorporate them via bilateral modification with no (or minimal) consideration provided (after all, it would be read in anyways). If the issue is unclear and in dispute between the Government and the Contractor, incorporate them via bilateral modification providing appropriate consideration (if warranted/necessary).

Don, Not sure if you're a subscriber or can access the article in some other fashion (if not, message me and I'll get you a copy), but the newest issue of Harvard Business Review has an article I think you'll find interesting in light of this post titled Why Leadership Training Fails - and What to Do About It by Michael Beer, Magnus Finnstrom, and Derek Schrader (https://hbr.org/2016/10/why-leadership-training-fails-and-what-to-do-about-it).

Still trying to figure out how to obtain a copy of this (or "these" as it appears the Third Edition is two volumes) - thus far my attempts at purchasing through their website haven't work (the "Secure Payment Server" is a broken page full of Asian characters) and no current editions are available on Amazon or elsewhere (at least that I've been able to find). Also, welcome to Wifcon and congrats on the first post! Huge fan of that book Jamaal - lots of tidbits of useful information in quick, digestible chapters that are easy to read independently (and share with others - as you experienced). If you enjoyed that book, I'd also recommend Duty by Robert Gates (https://www.amazon.com/Duty-Memoirs-Secretary-at-War/dp/030794963X) - certainly a different format (way more biographical), but interesting nevertheless (especially when he begins discussing acquisition program cuts).

I wonder, could you kill two birds with one stone...the contracting textbook might also be the horror novel (after all, I do recall you mentioning FAR Part 15 was written by Satan...)?

I couldn't agree more - one of my first (and still frequent) questions when I entered this career field was for books that I could read to learn about contracting and how to do it well. I was given the answer that most Government contracting professionals were likely given - "read the FAR;" however, the FAR is not very instructional, it's mainly just prescriptive/regulatory so reading it to learn "how to do X" is not terribly beneficial. Therefore, I think having a well-written textbook or two would go a long ways towards improving the way we can educate this workforce. Vern, would you be interested in writing a contracting text instead of that horror novel I saw you mention?

On my way into work this morning, NPR aired a segment on making better predictions (http://www.npr.org/2016/09/01/492203116/want-to-make-better-predictions-researchers-explore-where-we-go-wrong). The research (http://repository.upenn.edu/edissertations/1074/) was focused on predicting sporting events and in cases where more details were given or required to be assessed, individuals made (some) worse predictions. Disclaimer: I haven't completely read the dissertation (it's an EOFY work day and the dissertation is 200+ pgs...), but I couldn't help sharing due to its applicability to the contractor selection process, which is ultimately a predictive process itself. Assuming these issues/difficulties are also present in the contractor selection process, the large amounts information/data requested from contractors could not only be wasteful (in that it doesn't help the acquisition team make a better decision team) it might actually be harmful (in that it results in a worse prediction). Thoughts?

I believe so - at the moment, I cannot see why that would not be the case. Just to reiterate my previous "disclaimer," by no means am I advocating that it is a sound approach to incorporate FAR Subpart 15.3 procedures (or procedures that are substantially the same) as the ordering procedures for multiple award IDIQs - I'm just stating that it is possible that could be the case as the framework established by FAR 16.505(b) does not prohibit doing so (FAR Subpart 15.3 does not violate any of the criteria at FAR 16.505(b)(1)(ii) (A) through (E) or FAR 16.505(b)(1)(v))...FAR 16.505(b)(1)(ii) just states that FAR Subpart 15.3 does not apply by default to the ordering process.

Correct.

To know whether or not compliance is required, I'd read the IDIQ's ordering procedures. The ordering procedures may refer to FAR Part 15 or it may simply use the same (or similar) language/procedures from FAR Part 15. I'm not advocating anyone establish an IDIQ that does so, just that it isn't outside the realm of possibility.

With one exception: if the office decided to use a process identical or similar to the FAR Subpart 15.3 process when they wrote their ordering procedures, the office would be required to follow those procedures in spite of the rulings you allude to. govt2310, what do your IDIQ's ordering procedures state? FAR 16.505 provides a framework for those procedures...just because it is silent on an issue does not mean your ordering procedures are as well.

Thanks Don - middle of the workday, otherwise I'd normally do it myself.

Don, Apologies in advance for being lazy, but could you point us to the requirement and the "applicable conditions" - I'd be interested to read and understand them.

I don't think they'll be successful, especially when contingency environments like Iraq or Afghanistan are considered. In those environments, I'd argue that the mission trumps concerns for US small business goals. That is not to say that small businesses should be ignored or precluded - if a small business can offer a fair and reasonable price that meets the Government's requirement (often urgent in those cases), then great, but I can't envision an environment where they'd be the default option. It's also worth considering the impacts of Status of Forces Agreements (SOFAs) the US has with other countries on contractors overseas - in most cases, they do not cover contractors (https://www.state.gov/documents/organization/236456.pdf pg. 1 subscript) and in other cases, the US Government agrees to purchase directly from the local economy (correct me if I'm wrong, but I recall this being the case in Qatar though quick research wasn't able to turn up the specific SOFA). Furthermore, the local requirements and laws of other countries vary considerably as well (for some examples refer here: http://www.au.af.mil/au/awc/awcgate/awc/2006_ratton.pdf ...whether or not the author's conclusion is sound on reducing "outsourcing" to contractors is another conversation altogether, but the examples in the paper do provide some insight into the complications awaiting small businesses in any overseas environment). I think there is more than enough work for the SBA in advising US small businesses on how to properly comply and perform contracts in compliance with US laws and the FAR before considering the difficulties/challenges awaiting those companies in an overseas (potentially contingency) environment.

Don't worry, you didn't miss a thing - the company's remarks were incomprehensible.

Yes, Bob did and if you read his reasoning it was because they were apparently in violation of the terms of use. Try abiding by the rules of the forum by which you're participating...but in order to do that you'll have to read and understand them first.