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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Commercial Item and Commercially Available

    Vern, Just out of curiousity, where is your definition from?
  2. Commercial Item and Commercially Available

    Don't assume just because the term was used in an RFP that it was proper - I second Retreadfed's recommendation. Ask the drafter and reference the individual to the two definitions that the FAR actually contains while noting that the standalone term "commercially available" is not one of them.
  3. Commercial Item and Commercially Available

    Whynot, The FAR provides two separate definitions for each term (though the term you use of "commercially available" is used in the FAR as "commercially available off the shelf" (COTS))...see FAR 2.101 and FAR 12.103. Are you asking about the distinction between those two definitions in the FAR or someone/somewehere else's attempted distinction?
  4. I'm not here for one either H2H (which is why I've also tried to propose ways to make the current construct work better), but that quote of mine that you reposted is not synonymous with your scenario in point 1. Read the two one after another...my example deals with them outright not holding the events - yours takes issue with the number of attendees (a point I didn't bring up). You and I are on the same page with respect to your comments in paragraph 3 - (see my first and second bullet). We've even both stated that to encourage proactive behavior by the prime, one should consider the use of incentives. So if you want to characterize me as missing the issues, go ahead, but I think our positions are more closely aligned that you're indicating.
  5. The contract is governed by the terms and conditions which includes the FAR clauses, but Contracting Officers have a responsibility/requirement to ensure "all requirements of law, executive orders, regulations, and all other applicable procedures...have been met" (FAR 1.602-1(a)). In other words, a CO does not get to cherry pick the statutory and FAR requirements as they see fit - but clauses that are not applicable or required are not included. In the example you mention, the FAR does not require a subcontracting plan for small business concerns (see FAR 19.702(b)(1)) so the resulting clauses are not required - why would they need to be?
  6. What does this even mean? The FAR has specific requirements for when a subcontracting plan is required and when it isn't. Are you advocating that in situations where a subcontracting plan is not required by FAR 19.702 there should be? Do you even know if the clauses I provided you previously are in the subject contract you're concerned with? What does this mean?
  7. H2H, You seem to be putting a lot of words into my mouth. At no point did I advocate holding the prime responsible for the number of attendees or imposing a "requirement" (still have no idea what this would mean) beyond the good faith effort standard. What I took exception to were Pepe's remarks that the good faith effort was completely nebulous - I'll grant it can be, if the subcontracting plan is written poorly/broadly and contract administration is poor; however, the good faith effort standard can be made less nebulous by including specific standards and/or actions for the prime to take that are consistent with the FAR requirement to provide maximum practicable opportunity to participate in contract performance consistent with its efficient performance. How is that missing the mark? I'm trying to provide advice on how to make the current FAR construct/requirements work better rather than throwing up my hands (as it seems many would do in this case) and accepting that this is a completely futile situation...maybe I'm misguided in trying, but I'd rather try and fail than do otherwise.
  8. 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).
  9. 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.
  10. 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.
  11. 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.
  12. 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?
  13. 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).
  14. 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.
  15. 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?
  16. 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?
  17. 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"?
  18. CPPC

    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.
  19. CPPC

    That's quite possible if the prime contract was not a T&M contract. Is clause 52.244-2 "Subcontracts" in the prime contract?
  20. WD's - when are they effective on a contract?

    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.
  21. The Importance of Reading

    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.
  22. Adding Commercial Clauses to a Task Order

    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.
  23. Adding Commercial Clauses to a Task Order

    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.
  24. Adding Commercial Clauses to a Task Order

    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.
  25. Adding Commercial Clauses to a Task Order

    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.
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