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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Matthew Fleharty
    You're clearly hopping past posts then Pepe...refer to the one prior to your scenario and I stated " assessing the good faith effort comes down to reviewing (a) if the prime is meeting the subcontracting goals/requirements and if not (b) reviewing whether or not the prime is following the commitments/efforts to pursue small businesses as subcontractors detailed in the approved plan." That seems to be consistent with my following post which states "the analysis of the good faith effort comes down to an examination of the subcontracting plan which includes actions that the prime commits to taking in achieving those small business goals. If a prime fails to meet their goal a Contracting Officer should then review whether or not those actions stipulated in the subcontracting plan were taken to assess whether or not the prime actually made a good faith effort." There is no one right answer to this question. As I'm sure you're aware, all requirements vary to some degree, but some broad examples could include: Designate a company official to administer/monitor small business subcontracting Specify procedures for consideration of subcontractors that maximize opportunities for small business participation Maintenance of subcontractor selection records demonstrating compliance Outreach or liaison efforts to seek small businesses Depending on the requirement, the prime, and the small business opportunities potentially available (informed by market research) those requirements would be more specific (and should in order to enforce it properly when it comes to the "good faith effort" test). For example, the prime could commit in the subcontracting plan to hosting annual or semi-annual outreach efforts for small businesses. If a prime then chose not to or forgot to hold those outreach efforts and failed to meet their goals, one could make an argument that, based on the commitments in the subcontracting plan, the prime did not make a good faith effort. Just because the plans are written poorly/nebulously and then approved by COs does not mean that they cannot be written with more appropriate specifics that then give the clauses teeth when it comes to the "good faith effort" standard. Let's not forget, the overarching requirement is "maximum practicable opportunity to participate in contract performance consistent with its efficient performance" (FAR 19.702).
  2. Matthew Fleharty
    Not by incessant whining that they didn't meet the goal % without any consideration of other factors which is what your scenario consists of. If you'll refer to my previous post, the analysis of the good faith effort comes down to an examination of the subcontracting plan which includes actions that the prime commits to taking in achieving those small business goals. If a prime fails to meet their goal a Contracting Officer should then review whether or not those actions stipulated in the subcontracting plan were taken to assess whether or not the prime actually made a good faith effort - the term may be nebulous in abstract, but it shouldn't be when there is an accompanying subcontracting plan.
  3. Matthew Fleharty
    All I've heard are complaints - I've yet to see a valid alternative proposed. I keep reading about this thing called a "requirement," but I still have no idea what that means, what authority a PCO has to do impose such a "requirement" (short of an approved deviation), and why that would be an overall desirable outcome for a contracting arrangement (let's remember that small business considerations are not the primary purpose for contracting...fulfilling the requirement/Government's need is). Also, that straw man characterization of yours is not how I would pursue liquidated damages and ignores my previous remarks.
  4. Matthew Fleharty
    Even "requirements" of the subcontracting plan only require a good faith effort by the Contractor (based on the clause that governs it). Part of assessing whether or not the prime makes a good faith effort to meet those goals or requirements of the subcontracting plan includes, but is not limited to, examining how efficiently or more effectively it (or others) can perform the work. More broadly, the subcontracting plan stipulates the efforts that the prime will take in order to comply with the goals/requirements - assessing the good faith effort comes down to reviewing (a) if the prime is meeting the subcontracting goals/requirements and if not (b) reviewing whether or not the prime is following the commitments/efforts to pursue small businesses as subcontractors detailed in the approved plan.
  5. Matthew Fleharty
    Joel, I understand the concern - the way that subcontracting is specifically stated in the base contract is through the subcontracting plan. Sure the plan has goals, not "requirements," but (a) the plan still has to be approved by the Contracting officer and (b) the Contractor has to make a good faith effort to follow it. I know that Pepe has alleged that the good faith requirement is a low hurdle to jump, but I don't think that a Contractor could merely choose to self-perform any/all task orders and ignore the agreed to subcontracting plan. It has teeth if agencies care about the subcontracting plan and proper contract administration. I've still yet to see/hear of an alternative that would impose these so called "requirements." What are they and where does their authority stem from?
  6. Matthew Fleharty
    You miss my point - they are evaluated on it in the status quo, both prior to award (establishing an acceptable subcontracting plan and even evaluating their past performance related to achieving small business goals) and during performance (via compliance with the T&Cs as well as through CPARS), neither of which establishes the requirement you seek. Your only way around the "good faith effort" language under the required FAR clauses is a deviation (see FAR Subpart 1.4).
  7. Matthew Fleharty
    How is that substantively different from the requirement of FAR 19.702(a)(1) which requires that "the apparently successful offeror to submit an acceptable subcontracting plan. If the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer, the offeror will be ineligible for award"? Subcontracting plans include a % of dollars that are to be subcontracted to various small business concerns. That plan, short of a deviation, is then governed by the clauses already provided and, therefore, only requires a good faith effort...maybe I'm missing something, but I don't know how that proposed requirement is substantively different. If an agency wants/needs to motivate small business participation, they could use a carrot rather than stick approach by incorporating FAR 52.219-10 "Incentive Subcontracting Program" (refer to FAR 19.708(c)(1)) into the contract.
  8. Matthew Fleharty
    JIR17, The way the Government holds contractors accountable is through terms and conditions in the contract. Short of a deviation to the required T&Cs I've already referred you to, I don't know where this so-called requirement with teeth is going to come from or what it would look like. Maybe a small business office or expert knows better than I do - have you tried contacting the SBA?
  9. Matthew Fleharty
    I disagree - if a contractor does not show good faith in complying with the contract's subcontracting plan, there are consequences (breach & liquidated damages). I'm not familiar with the requirements you mention. I'm only aware of the statutory requirements outlined in FAR 19.702 (which are implemented contractually by the clauses I previously referenced)...(emphasis added below). Why/how are those insufficient for your agency's needs?
  10. Matthew Fleharty
    Recommend you read FAR 52.219-9 "Small Business Subcontracting Plan" & FAR 52.219-16 "Liquidated Damages - Subcontracting Plan" to see if those answer your question. Can you elaborate on the distinction you seem to be drawing regarding "goal" and "requirement"?
  11. Matthew Fleharty
    Did you read the clause I referred you to? You may have consent to subcontract requirements in which case the CO would certainly have such authority.
  12. Matthew Fleharty
    That's quite possible if the prime contract was not a T&M contract. Is clause 52.244-2 "Subcontracts" in the prime contract?
  13. Matthew Fleharty
    DAS1220, Read the clauses of your contract, specifically FAR 52.22-41 which should state: So to answer your question, as long as your payments from April 2016 through September 2016 were IAW the wage determination attached to the contract at the time, no, you do not have to go back to April and adjust all the affected salaries even though the updated WD was not incorporated into your contract.
  14. Matthew Fleharty
    I rather enjoyed reading Gen. Mattis' remarks on the importance of reading...though (similar to Bob's comment about being "a world of 140 characters or less") I think we could also add writing to the list as well.
  15. Matthew Fleharty
    Is it inconceivable that a contract for or including commercial items could be awarded with the wrong, non-commercial clauses? Fair point - I suppose I'm a bit jaded from seeing too many commercial contracts awarded using the UCF and wrong (non-commercial) clauses. In the event that the description(s) of the supplies/services in the IDIQ included commercial items, I don't think the clauses (or lack thereof) would trump those description(s). Given the information provided thus far, I guess we cannot make a reasonable conclusion one way or another.
  16. Matthew Fleharty
    Based on the facts provided by the OP, I don't think this is a reasonable assumption or pertinent to the discussion here. We don't know the extent of what items/services may or may not be procured through the IDIQ, only the T&Cs that govern the resulting task orders. As I read the issue, the problem is not that one is unable to procure commercial items through the IDIQ, but that if one were to procure commercial items through the IDIQ, the T&Cs would not include the appropriate commercial clauses.
  17. Matthew Fleharty
    I agree, to an extent - my remarks/concerns are for instances where those other clauses would conflict with the clauses in the IDIQ - in those cases, wouldn't that require a deviation to FAR 52.216-18 which states "All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control." I suppose this is just another example where an ounce of prevention is worth a pound of cure.
  18. Matthew Fleharty
    Theoretically, contractors should be more amenable to the standard commercial clauses versus any non-commercial counterparts (for example, consider in a commercial contract, all changes must be mutually agreed to IAW FAR 52.212-4( c ) whereas other Changes clauses, FAR 52.243-1 through 52.243-6, allow the government to unilaterally make changes to the contract). Still, if a disagreement or dispute amongst the parties arises, Don is right that the basic IDIQ contract's clauses would govern in the event of a conflict, so I'm not sure how much use it would be to pursue incorporating commercial clauses when they could/would be overridden anyways IAW FAR 52.216-18.
  19. Matthew Fleharty
    Don hit the nail on the head with respect to the clauses so I have nothing to add there. You stated that the department's contracting officer said "the IDIQ contracts were intended for commercial and non-commercial use" - have you seen a copy of the ordering procedures? It's doubtful, but there may be separate procedures/T&Cs for commercial and non-commercial items stipulated there.
  20. Matthew Fleharty
    Yes.
  21. Matthew Fleharty
    I don't think the HUP is an analogous situation - one argument that could be made is that the Government has an interest in its employees having office software access at home (for example, when teleworking) which is why HUP is included as part of the license agreement. I think comparing the HUP to the original scenario and Mettec's proposed solution is only muddying the waters. I also don't think there are any further arguments for me to make on this issue - if I haven't convinced you or Mettec yet, I doubt I will.
  22. Matthew Fleharty
    Jason, I still think you're missing the point (apologies if I wasn't clear enough previously). The objection raised was in reference to requesting the contractor extend a discount to all government employees - not whether or not discounts for all federal employees (and accepting them) are ethical/unethical.
  23. Matthew Fleharty
    Mettec, Your analysis ignores the second part of the restriction: "or other item of monetary value" as well as paragraph 7 "employees shall not use public office for private gain." Do discounts have monetary value? Does asking a contractor to extend a discount to all Federal employees so one (or an agency) can take advantage of it result in private gain? You and Jason (conveniently) ignore the particulars of this situation: the contractor is only offering the discount to a specific agency. Barring any interference, the contractor is unlikely to change their behavior. Mettec's proposed solution was to take the proactive step of asking the contractor to extend the discount to all Federal employees. That action, in my opinion, is unethical (see above). A more sound/ethical alternative would be to formally notify the contractor that the current discount for the agency's individuals is inappropriate IAW...(everything provided above)...then allow the contractor to make an independent decision on what to do. As I see it, they'd have two options: (1) to withdraw the discounts entirely or (2) extend discounts to all military or government officials...but asking/encouraging the contractor to do the latter so the agency can continue to use the discounts would be an abuse of one's official position. Is the Home Use Program a free offering from Microsoft or does the Government pay for home use licenses for Government employees? I don't know the answer to that question, but this is an important distinction with a difference.
  24. Matthew Fleharty
    I agree with Vern. If the discount is bargained for or contingent on a contractual relationship with the Government, it's wrong. Bargaining for the discount would violate the General Principles in 5 CFR §§ 2635.101 "Basic obligation of public service," specifically paragraph 4 which states: You could also make an argument that it would also violate paragraph 7 which states:
  25. Matthew Fleharty
    ContractSpecialistTJohn, Certificates of Competency are not unique to FAR Part 15 (reference FAR 9.104-3(d)(1)) - read FAR Subpart 19.6 and see if that answers your question with respect to your particular situation. I would also recommend you touch base with a knowledgeable Contracting Officer in your organization to go over the structure of the FAR, particularly the Scope and Applicability portions, so you can better understand when a requirement in a particular FAR Part is applicable to a contract action and when it is not. Also, don't stop short when reading the FAR - twice now, sections you've cited have referred to another Part of the FAR which contained the answer, yet it seemed you stopped short of seeking it - when FAR 15.101-2 cites "Subpart 19.6" or 15.3 cites "Subpart 9.1" go read them and you'll be able to find the information that answers your question (or, if not, at least adds more context so you can ask a better question).
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