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Matthew Fleharty

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Posts posted by Matthew Fleharty


  1. I'll second Vern's point of order.  For those of you who may think that his point of order is nitpicky, read George Orwell's essay Politics and the English Language (attached to this post) and then see if you think differently.  Word choice matters.  See the following opinion article from the NYTimes just this morning regarding the use of the word "collusion":

    https://www.nytimes.com/2017/11/02/opinion/collusion-meaning-trump-.html

    HonorsOrwellPoliticsEnglishLanguage.pdf


  2. 19 minutes ago, ICE-CO said:

    Is that something they would be held accountable for?

    What do you mean by "held accountable for?"

    Based on your first post and this one, I think you may have a habit of worrying too much.  Take a deep breath and read the following FAR excerpts until they're permanently ingrained in your contracting psyche:

    Quote

    FAR 1.102(d) "The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority"

    FAR 1.102-4(e) "The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound."

    Don't paralyze yourself over rules that may or may not exist.  Research thoroughly, but if you come up empty and your actions are reasonable, based on sound business judgment, and documented, you won't find yourself in trouble (just don't do anything illegal, unethical, or immoral).  If someone does try to punish you for such actions, you're probably in the wrong organization to begin with.


  3. 14 hours ago, FAR-flung 1102 said:

    I plead guilty. No, I have not read the book. 

    Then how can you make statements like:

    On ‎10‎/‎31‎/‎2017 at 5:23 PM, FAR-flung 1102 said:

     I don't think the author has taken this one question seriously and it's the one most worth asking. 

    Vern, I have the book on order and I plan to read it while I'm stuck on planes this month flying around to a couple honeymoon destinations.  I look forward to engaging in the discussion when I return at the end of the month.


  4. 44 minutes ago, Fara Fasat said:

    Given the regs' priority requirements, DPAS clearly expects suppliers to put themselves in potentially breaching positions with other customers in order to meet a rated order's deliveries. That tells me that the overall mandate of DPAS is "meet your delivery date regardless of other impacts." 

    I think you might have gone a bit too far - what if the order was a cost type contract and the Government ran out of money to pay for the effort?  Would the contractor(s) still be required to "meet [their] delivery date regardless?"  I'd think not, so why would a subcontractor have a requirement to perform in spite of prime contractor's breach of contract?  Since a breach of contract can be grounds for termination (none of us, except maybe Fara Fasat, know the terms and conditions of the subcontract), maybe this subcontractor should terminate the current order and then refuse subsequent orders under the authority of 15 USC 700.13( c )(1).

    Quote

    (c) Optional rejection. Unless otherwise directed by Commerce, rated orders may be rejected in any of the following cases as long as a supplier does not discriminate among customers:

    (1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;

    Question: why wouldn't your same logic apply to the prime contractor's contractual responsibilities (one of which is timely payment for deliveries)?  Your argument is essentially under rated orders, contractors have a requirement to perform contract obligations in spite of whatever hardships may arise - if we accept that premise, the prime has an obligation is to fulfill its promise under the subcontract (payment) while the subs fulfill theirs (delivery).  Maybe an argument could/should be made that the prime is the one in violation of 15 USC 700 - by not paying in a timely manner the prime has not given rated orders the "preferential treatment" required by the DPA.


  5. If you used GSA, why are you looking in FAR Parts 13, 14, and 15 when FAR 8.404(a) states:

    Quote

    (a) General. Parts 13 (except 13.303-2(c)(3)), 14, 15, and 19 (except for the requirement at 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5). BPAs and orders placed against a MAS, using the procedures in this subpart, are considered to be issued using full and open competition (see 6.102(d)(3)). Therefore, when establishing a BPA (as authorized by 13.303-2(c)(3)), or placing orders under Federal Supply Schedule contracts using the procedures of 8.405, ordering activities shall not seek competition outside of the Federal Supply Schedules or synopsize the requirement; but see paragraph (g) of this section.

    Maybe you'll find the answer to your question somewhere under FAR Subpart 8.4.

    Also, this topic should be in a different sub-forum (probably Contract Award Process)...


  6. From last year's NDAA (the DFARS does not currently reflect these changes):

    Quote

    SEC. 811. MODIFIED RESTRICTIONS ON UNDEFINITIZED CONTRACTUAL ACTIONS.

        Section 2326 of title 10, United States Code, is amended--
                (1) in subsection (e)--
                        (A) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B);
                        (B) by inserting ``(1)'' before ``The head''; and
                        (C) by adding at the end the following new paragraph:
        ``(2) If a contractor submits a qualifying proposal to definitize an undefinitized contractual action and the contracting officer for such
    action definitizes the contract after the end of the 180-day period beginning on the date on which the contractor submitted the qualifying
    proposal, the head of the agency concerned shall ensure that the profit allowed on the contract accurately reflects the cost risk of the
    contractor as such risk existed on the date the contractor submitted the qualifying proposal.'';
                (2) by redesignating subsections (f) and (g) as subsections (h) and (i), respectively;
                (3) by inserting after subsection (e) the following new subsections:
       ``(f) Time Limit.--No undefinitized contractual action may extend beyond 90 days without a written determination by the Secretary of the
    military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition, Technology, and Logistics (as applicable) that it is in the best interests of the military department, the Defense Agency, the combatant command, or the Department of Defense, respectively, to continue the action.

    ``(g) Foreign Military Contracts.--(1) Except as provided in paragraph (2), a contracting officer of the Department of Defense may not enter into an undefinitized contractual action for a foreign military sale unless the contractual action provides for agreement upon contractual terms, specifications, and price by the end of the 180-day period described in subsection (b)(1)(A).
         ``(2) The requirement under paragraph (1) may be waived in accordance with subsection (b)(4).''; and
                (4) in subsection (i), as redesignated by paragraph (2)--
                        (A) in paragraph (1)--
                              (i) by striking subparagraph (A); and
                              (ii) by redesignating subparagraphs (B), (C),
                          and (D) as subparagraphs (A), (B), and (C),
                          respectively; and
                        (B) in paragraph (2), by striking ``complete and meaningful audits'' and all that follows through the period and inserting ``a meaningful audit of the information contained in the proposal.''.

     


  7. 3 hours ago, here_2_help said:

    In the 20 year-old anecdote that you put forward to justify the status quo, the fault was the CO. Instead of negotiating the CO relied like a crutch on DCAA to tell them what to do. ("... C&P data required some level of DCAA blessing before we could conclude negotiations.") No, it didn't. The CO was under no obligation to request field pricing assistance. That was a choice. And it was obviously a poor one.

    Where do you get this idea that the CO is some almighty with unilateral authority to do whatever he/she pleases?  The CO is only a CO because he/she has a certificate of appointment from some higher authority - usually in the case of UCAs, that higher authority is also the CO’s clearance authority and the CO has to obtain that individual’s approval prior to definitizing the contract action (per the regulations, local procedures, AND to keep his/her certificate of appointment and job).  That clearance authority typically requires field pricing assistance whenever the DFARS PGI says the CO should obtain it.  So foregoing field pricing assistance isn’t necessarily a choice the CO can make on his/her own.


  8. 16 hours ago, here_2_help said:

    If the contractor submits a definitization proposal then it's fulfilled its responsibility and everything else is on the government team.

    ***

    Hey, look at that reservation way over there!

    I guess that means the contractor has no responsibility to negotiate in good faith, provide timely counter offers, etc.  This is the same garbage I heard once in negotiations:

    • Contractor: "We submitted a proposal with cost and pricing data, so the price is the price." 
    • Government: "Well, we analyzed your proposal/data and found these mistakes in your proposal.  We also disagree with the analysis in these BoEs.  Therefore, we think the fair and reasonable price is actually lower than what you proposed."
    • Contractor: "Well, we put a lot of time into that proposal and we submitted cost and pricing data, so the price is the price."
    • Government: "Well, we would like to discuss our findings, ask some questions, and work towards reaching agreement on what a fair and reasonable price is..."
    • Contractor:  "What more do you want from us?!  It's all in the proposal and the data.  The price is the price."

    I suspect you know this, but just in case, when a UCA is in place, the two parties have yet to reach an agreement on the full terms and conditions of the contract (that's why it is called an "undefinitized contract action").  Now this is the part where you seem to be on an island with your bandwagon: when two parties have not reached an agreement, both parties have the responsibility to negotiate in good faith until they reach an agreement (or agree to go their separate ways).  A CO/PM cannot do that on their own and it is naïve to think otherwise...by it's very nature, an agreement requires a responsible/authorized individual from each party and the CO/PM only represent one of the two parties (think of it as a mathematical equation: Government Concurrence + Contractor Concurrence = Agreement).  The qualifying proposal will probably have errors and will certainly have areas that the Government takes exception to - when that happens, if we accept your proposition, the contractor would have no responsibility to engage the Government in discussions over their findings and disagreements.  How is that productive?  Agreement would be impossible, so...on this island with your bandwagon, it seems contractors would merely submit qualifying proposals and then Contracting Officers, "with the approval of the head of the contracting activity, [would] determine a reasonable price or fee...subject to Contractor appeal as provided in the Disputes clause" (DFARS 252.217-7027( c ))...I'm not sure that's preferable to the status quo, but you've yet to provide a sound argument as to why that would be better than negotiations (even when they experience a delay in reaching agreement) or why prohibiting UCAs in the fourth quarter or holding COs and PMs personally liable are good policies.

    Just to see if your views are consistent, should members of the contractor's team be held personally liable for failure to submit a qualifying proposal IAW the definitization schedule?


  9. 46 minutes ago, here_2_help said:

    No problem.

    As soon as you hold COs and PMs personally liable for failing to definitize in accordance with statute. Otherwise, I'm not going to burn that bandwagon.

    Because the failure to definitize in accordance with statute is always solely the fault of the COs and PMs...

    This is the type of reactionary behavior that, if it catches on and snowballs, would result in poor acquisition policy (though I'll gladly eat these words if you provide a sound argument for your "bandwagon").


  10. I don't know why the FAR should not instruct requiring activities...it instructs agencies, HCAs, SPEs, etc. in addition to contracting officers.  Someone on that team needs a reminder that the FAR is not merely Contracting's regulation, but the entire Acquisition Team's.  In addition to FAR 1.102-4( e ), see FAR 1.102( c ) which defines the Acquisition Team:

    Quote

    The Acquisition Team consists of all participants in Government acquisition including not only representatives of the technical, supply, and procurement communities but also the customers they serve, and the contractors who provide the products and services.

    That aside, I don't think this is a substantive change - if the contracting officer "shall obtain" something, that means some entity will still need to prepare and provide that something...


  11. 1 hour ago, Vern Edwards said:

    I guess the Air Force just didn't know it had such a prodigy handling its procurement.  If only you'd had similar skills of persuasion. ^_^ The USACE should have just kept you to itself.

    While tongue in cheek, anyone reading this should heed the lesson - without the authority to make the decision, a good idea will go to waste unless the you have the ability to convince the other party that the idea is, in fact, good.  You may have to try by speaking, writing, or briefing (and that medium will likely be chosen for you).  Practice those skills so that when you have a good idea, you'll be ready.  If for some reason you feel you're inadequate or unlikely to succeed (you may lack the trust or "political capital"), have the humility to find someone who is and let them help (by pitching the idea on your behalf, drafting the letter/email/document, or reviewing your work) so that the good idea is more likely to be accepted.


  12. Three individuals have reached what I also think is the right conclusion so I'll add my voice to the chorus.  The exception to utilize an appropriation for severable services beyond its period of availability was passed specifically for annual appropriations, not multiple year appropriations, (as evidenced by the language "a fiscal year") in order to allow agencies reliant on annual appropriations more flexibility for funding contracts for severable services.  As a result, it had/has no impact on the use of multiple year appropriations.

    Do the acquisition community a favor by saving and circulating the GAO letter (B-317636) and the corresponding analysis/conclusion amongst your fellow acquisition professionals - from my own experiences, this nuance is not widely understood as I've heard this question before on multiple occasions.


  13. 10 minutes ago, jwomack said:

    As an auditor, would it be wrong to only review acquisitions made in September?  It may be statistically skewed but the weaknesses would certainly be identified.

    That wouldn't work - if you're trying to establish that acquisition outcomes for awards made in September are "weak" that requires a basis for comparison (worse than what?).  If you only review/sample acquisitions in September, you'll only be able to compare them to one another which wouldn't allow you to properly test the hypothesis.


  14. Let's not forget that while size (or quantity) can increase complexity, complexity is also a function of clarity (or quality).  I'd encourage anyone concerned with FAR complexity to visit http://www.plainlanguage.gov/ and read the "Federal Plain Language Guidelines."  Those who do will likely find him/herself wondering what the FAR (and other Government regulations/documents) might look like if they followed such guidelines.


  15. 23 minutes ago, Weno2 said:

    I have waived amounts due under the authority of FAR 1.602-2 - Responsibilities. 

    Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment (self-added emphasis).

    How does FAR 1.602-2 override FAR 32.610?

    Quote

    32.610 – Compromising Debts.

    For debts under $100,000, excluding interest, the designated agency official may compromise the debt pursuant to the Federal Claims Collection Standards (31 CFR part 902) and agency regulations. Unless specifically authorized by agency procedures, contracting officers cannot compromise debts.

     


  16. Well myfrogleaps that's what you sometimes get when you ask for free advice ("beggars can't be choosers").  I don't have any experience using Special Standards of Responsibility, but I'll try and set you down the right path:

    First, you should think about the difference between a standard for responsibility and an evaluation factor.  The latter is supposed to focus on areas that will discriminate amongst potential offerors during the evaluation process while the former is a requirement for award eligibility (in all cases I'm aware of they are binary [e.g. Is the contractor debarred? Does the contractor have adequate financial resources to perform the subject effort?] so they're not discriminators, but they are hurdles an offeror must clear in order to receive a contract award).

    See FAR 15.304(b):

    Quote
    (b) Evaluation factors and significant subfactors must --

    (1) Represent the key areas of importance and emphasis to be considered in the source selection decision; and

    (2) Support meaningful comparison and discrimination between and among competing proposals.

    Second, if you do a standard Google search for "Special Standards of Responsibility" one of the top returns is the following DFARS link (http://www.acq.osd.mil/dpap/dars/dfars/html/current/252237.htm) which provides an example of a Special Standard of Responsibility that is required when contracting for audit services.  If you read the clause, it details necessary requirements for a potential contractor that intends to provide audit services, but those requirements would not be discrimators amongst the offerors as to which one offers the best value.  That's presumably why they're treated as a responsibility standard instead of an evaluation factor.


  17. There is tremendous variation/sloppiness in the use of acquisition terminology period

    I learned a valuable lesson on "linguistic precision" as a 2Lt when my first PAR and SSDD were reviewed by my boss.  The documents came back with more red ink than I had ever seen on any of my college papers due almost entirely to using various words inappropriately.  For example, I used the words "price," "cost," and others interchangeably to try and improve the documents' flow and readability; however, the result was a set of documents rife with inaccuracies that made even less sense due to my monologophobia.

    My recommendation: call out and correct linguistic imprecision whenever you can.  Hopefully it will make a lasting impression on the individual(s) and the entire workforce will gradually be better off for it.


  18. 3 hours ago, Vern Edwards said:

    I don't get the concept of "breakdown activities."

    I read the article, but the main example that it gives--of a nurse observing and reporting on patients--does not help me understand what is a breakdown activity in contracting practice. (The article was really a sales pitch. HBR should be ashamed.) Do breakdown activities include all tasks in which poor performance can cause "mission failure"? Is breakdown activity another way of saying "critical task"? If so, what are the characteristics of critical tasks in contracting?

    I need clarification and elaboration.

    I initially had a similar reaction (which is why I was only able to quote one sentence from the article), but two weeks later I'm still stuck thinking about what contracting activities high performers perform better than low performers.  Maybe I need a re-vector, in which case I'd be happy to hear any thoughts there as well.

    As for trying to clarify and elaborate, I'd like to leave the prompt broad (for now), but here are some examples of "breakdown activities" I've been considering (so much for trying not to "lead the witnesses"):

    • Reading and interpreting contracts/regulations/statutes
    • Deductive reasoning
    • Negotiating

    An example of an activity that I don't think fits the bill:

    • Using contract writing systems (PD2, ConWrite, etc.)

  19. I'm drafting some thoughts/recommendations on improving training for the contracting workforce and I'd like to solicit input from those of you who frequent these forums. 

    Specifically, I'd like to know what each of you think are the "breakdown activities" for our workforce. 

    "Breakdown activities" are defined as those "tasks that differentiate high and low performers." 

    The term comes from an article in Harvard Business Review that I read last month - for those of you interested in the complete article, you can read it here: To Better Train Workers, Figure Out Where They Struggle.

    Thanks in advance for any input!

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