Matthew Fleharty

🙄

I’m not a contractor and I agree with @here_2_help‘s remarks on the value of advance notice.  I don’t think advance notices merely constitute another administrative to-do: such notices have real value for contractors (and their employees) so they can plan for either continued performance or new work.

Here's a hypothesis: the Government may assume that travel costs for contractors should be no different than travel costs for the Government.  Since Government employees don't typically see the G&A behind their personal travel costs (they merely see the direct travel costs: airfare, rental car, hotel, per diem, etc.) the use of that as a baseline would result in the disconnect discussed here when trying to determine what travel costs the Government should or should not reimburse.

2 hours ago, lotus said:

What happens to the KO's career if puts his foot down, saying "you guys dawdled around too long, and I'm happy to watch you suffer the consequences"?

I think Don and Vern answered the mail just fine on this one...

Here's a defense related example from today's news (emphasis added below):

Quote

Because Boeing is locked into a fixed-price contract that makes it responsible for paying any costs above the $4.9 billion award value, it has had to use its own funding to pay for improvements to the RVS. Gibbons declined to comment on how much the company is investing on the system.

However, Gibbons and Martin stressed that the Air Force’s original requirement for the system, written almost a decade ago, left much up to interpretation. For instance, the RVS requirement calls for a system with “sufficient visual acuity to be able to perform aerial refueling in all conditions,” a qualitative description that doesn’t lay out exact parameters.

The requirements also included no information on the acceptable number of undetected contacts, Gibbons said.

That may be why Leanne Caret, the head of Boeing’s defense business, said the company’s most significant lesson learned during the course of the program is that all parties need to make sure they’re on the same page in regard to requirements.

“How do you define the spec appropriately? How do you make certain from a verification and a validation perspective that the intent as well as the exactness of it is there?” she told reporters May 3.

20 minutes ago, lotus said:

Can an agency let a contract run to near its expiration, then use that it is near its expiration as justification of "unusual and compelling urgency" to award a bridge contract to the incumbent?

See FAR 6.301(c)(1): 

“Contracting without providing for full and open competition shall not be justified on the basis of (1) A lack of advance planning by the requiring activity...”

11 minutes ago, sdvr said:

Does that mean 80% of protests go to Corrective Action?  

No, just as agencies can take corrective action, protesters may withdraw their protest(s).

I think @Vern Edwards' thoughts are spot on.  The only item I'll add to his list of arguments to explore is that the effectiveness of sealed bidding and competitive proposals contracting is undermined by a shrinking defense industrial base (see below): 

@PepeTheFrog 

This: "There are other, effective ways to negotiate beyond relying on or using deception."

&

This: "...deception is a fundamental part of negotiation."

are mutually exclusive statements.

If you can explain how they are not mutually exclusive, please do so, but "sloppy, sloppy, sloppy" is not an argument.

2 hours ago, PepeTheFrog said:

True, but that doesn't falsify that deception is a fundamental part of negotiation.

Yes it does.  See definition of "fundamental"

Quote

forming or serving as an essential component of a system or structure; central

If one does not need to use or rely on deception to be an effective negotiator (which you just agreed was "true"), it follows that deception is not essential and therefore, not a "fundamental part of negotiation."

43 minutes ago, PepeTheFrog said:

That's like saying competition and violence shouldn't happen. Or that hierarchy should be abolished. 

No it’s literally not - stop drawing false equivalences, it’s bad form.

47 minutes ago, PepeTheFrog said:

You're implying that all tactics that involve deception will destroy your credibility and integrity (and that you will get caught every time). Putting aside getting caught, not all forms of deception rise to the level of the synonyms you listed like fraud or treachery. Fraud or treachery will likely destroy your credibility and integrity. Successful bluffing will not have any effect. Unsuccessful bluffing might reduce it. Guile will not likely destroy it; your opponent might respect you more for it. Lying may or may not reduce or destroy it. It depends on the lie and whether you get caught. 

PepeTheFrog thinks many of you have an emotional reaction to the word and concept of deception. Deal with it. Face reality. 

PepeTheFrog would say that some of you are living in a world that doesn't exist, or that you are playing by rules that nobody else follows. But PepeTheFrog doesn't believe some of you are being honest and fully transparent....instead, you're being deceptive about your potential for and comfort in using deception. Or maybe you're just deceiving yourself. 

“Putting aside getting caught...”?!?!?! Who is living in their own world now Pepe?! You cannot just wish away a strong argument against your position because it’s convenient for your point. You’ve ignored the fact that (a) inevitably deceptive practices will be caught if repeated over time and, further (b) trained and prepared negotators know how to identify deception.

There are other, effective ways to negotiate beyond relying on or using deception - period.

@PepeTheFrog I don't recall anyone here saying that deception doesn't happen, but there are plenty saying it shouldn't.  

39 minutes ago, bob7947 said:

What about # 7.  Wouldn't that cover just about any system produced or in production?

BTW, according to the Departmenr of State, our contractors sell $150 billion worth of weapons to foreign contries annually.

Section 847 of the 2018 NDAA already included a “to multiple foreign governments” criterion for commercial items.

In addition to C-130Js, I think satellites might fit the definition.  I know some defense contractors use the same satellite bus (and facilities and presumably workforce...though they only need one of the three under the (4) definition) for commercial satellites and DoD satellites - the only difference between the two satellites/“products” are the specifications.

Thanks for sharing your thoughts @Retreadfed

I’m going to save my pointed questions until others have had a chance to chime in to avoid leading anyone.

34 minutes ago, bob7947 said:

Mathew:

My original thought was that.  I can call the forum starting from scratch.  After that, we could add one thing at a time and we could eventually complete the process.  If we take Vern's suggestion, we could hash out CICA and when that dies out, we could move on to the next area of discussion.  When we are done with our components or building blocks, we might have a thorough look at the acqusition process.  I can move things around to fit our structure and needs.

For example:

The forum might be called:  Federal Contracting, Starting from Scratch.  Our first area would be CICA, as Vern suggested.  Once that is discussed to our heart's content, we could move on to the next block and build on our structure.  That way we could stay focused on one thing at a time.

Under CICA, we could discuss Vern's bullets one at a time.

Sounds good to me, though maybe we shouldn’t call it CICA if we’re starting from scratch - let’s call it “Contractor Selection” or something to that effect.  Two additional topic areas could be: (1) Ethics & (2) Public Policy (after all this is the federal contracting process).

I like the “from scratch” idea, if only because those who choose to discuss the topic can focus on principles, policies, and procedures of a new contracting process and the merits of such ideas rather than the “well X idea still conflicts with Y regulation/statute” conversations.  

As for where to start, the beginning of course:  “Begin at the beginning," the King said, very gravely, "and go on till you come to the end: then stop.” - Lewis Carroll -

Representative Thornberry has introduced a discussion draft of his proposed FY19 acquisition reform efforts.  In it he proposes to separate the definition of "commercial item" into "commercial product" and "commercial service."  The following is the proposed definition of "commercial product" (emphasis added below):

Quote

§ 103. Commercial product

In this subtitle, the term ‘commercial product’ means any of the following:

‘‘(1) A product, other than real property, that— ‘‘(A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and ‘‘(B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public.  

‘‘(2) A product that— ‘‘(A) evolved from a product described in paragraph (1) through advances in technology or performance; and ‘‘(B) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation.

‘‘(3) A product that would satisfy the criteria in paragraph (1) or (2) were it not for— ‘‘(A) modifications of a type customarily available in the commercial marketplace; or ‘‘(B) minor modifications made to meet Federal Government requirements.

‘‘(4) A product that— ‘‘(A) is produced in response to a Federal Government drawing or specification; and ‘‘(B) is ordinarily produced using customer drawings or specifications for the general public using the same workforce, plant, or equipment.

‘‘(5) Any combination of products meeting the requirements of paragraph (1), (2), (3), or (4) that are of a type customarily combined and sold in combination to the general public.

‘‘(6) A product, or combination of products, referred to in paragraphs (1) through (5), even though the product, or combination of products, is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor.

‘‘(7) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that— ‘‘(A) the product was developed exclusively at private expense; and ‘‘(B) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.

I'm curious to hear others' interpretations of the meaning of paragraph 4 (in bold above).  Thanks in advance to anyone willing to share her/his thoughts.

On 4/24/2018 at 6:15 PM, Vern Edwards said:

Don't think in terms of regulations! Think in terms of concepts and principles. FAR 12.208 has nothing to do with what I've been trying to tell you, and there is no logical connection between what it says and the conclusion that you reached. Close your damned FAR and THINK!

I'm reading Steven Kelman's (former OFPP Administrator) book "Unleashing Change" about his procurement reforms in the mid 1990s and this comment reminded me of some of his remarks in the second chapter (emphasis added):

Quote

...the most important problem with rules was not what they contained but what they left out.  Nothing in the rules prohibited people from looking for better ways to do business in areas the rules did not address.  Most rules involved processes people needed to follow...No rule admonished "Get a good deal for the government," if for no other reason than that such a "rule" would provide insufficient guidance and hence would not fill the role rules are supposed to fill.  Furthermore, when rules regulate most parts of a person's job, it is natural to conclude that the job consists only in following the rules.  So a rule-based system sent a signal to focus on process rather than results.  Put another way, a rule-based system, by delineating minimally acceptable behavior, easily slides into delineation of maximum performance...An organization cannot put blinders on its personnel and then expect peripheral vision.

47 minutes ago, REA'n Maker said:

There is a certain perverse logic in play here - Government delays the negotiation, and in so doing achieves a lower fee !  I'm assuming at this point you are asking for actual costs plus fee/profit?  As suggested, if I were you, I would focus the negotiation on the portion of fee that is supposed to compensate for that risk component.

Emphasis added - that's an assumption, not a fact of the OP's scenario.

3 hours ago, ContractingCowboi said:

I think you've finally gotten through to me... I was going to say "what about quality assurance plans?" But then I saw FAR 12.208 -- Contracts for commercial items shall rely on contractors’ existing quality assurance systems as a substitute for Government inspection and testing before tender for acceptance unless customary market practices for the commercial item being acquired include in-process inspection.

The more I think of it, you're right -- price/past performance will tell you a lot more than some plan or approach.

Success!  Now spread the goodness to your colleagues 

10 minutes ago, Vern Edwards said:

Hypothetical:

You're in a firm-fixed-price contract negotiation. You've been going back and forth with the other side: offer-counteroffer. Then the other side submits a counteroffer that you believe to be based on a false assumption that works in your favor. They don't say that they made the assumption, and they don't ask you a single question about the matter, but you can tell based on the content of the counteroffer.

Do you tell them that you think they made a false assumption?

On the Government side, I certainly would for a few reasons:

Philosophically, I think Contracting Officers should be objective arbiters of the process.  Sure they must safeguard the interests of the United States and be good stewards of the taxpayers' dollars, but I often say that I've never read anywhere in the FAR a directive to "save as much money as possible" (particularly at another party's expense).  Instead, the FAR says a CO's responsibility is to award contracts at fair and reasonable prices (which with lingering false assumptions can one accurately determine that amount?) and to conduct business with integrity, fairness, and openness.  I think addressing the false assumption is behavior consistent with both of those charges.

Negotiation wise, by raising that issue (assuming it isn't the only lingering one since the scenario does say "you've been going back and forth") I think you'll likely gain a considerable amount of credibility with the other party that could help propel what might be an intractable negotiation towards closure.

Lastly, if not acted on, unexpressed assumptions inevitably rear their ugly heads during contract performance and that could have two implications: (1) the differing expectations during contract performance could jeopardize successful and smooth performance & (2) if it's apparent or becomes apparent that you knew about it and said nothing, that's going to damage the relationship (the implications of which have already been discussed enough on this thread).

On the Contractor side, I'd like to say I would as well - hopefully, I'd be able to sell the positive long term benefits to my boss so that I could keep my job 

30 minutes ago, ContractingCowboi said:

This is true. So, what if you included in the solicitation that all terms offered in the quote/proposal shall be binding and incorporated into the PWS. Any terms such as "We will do X, Y, and Z" should then be binding, no? So while they may have a flashy proposal-writing team, the flashy terms they propose should then be binding. 

Vern made a comment on a different thread last week that I thought all contracting professionals should read and think about:

"You don't get "guarantees" with contracts.  You only get promises and there is no guarantee that you can enforce them, not even in court."

One of the biggest problems with an acquisition system that takes to long is that it robs the Government of the ultimate incentive for good performance: future work.  If we had an acquisition system that was fast, it would be easier for the Government to cut loose a poor performing contractor and move on to someone else - that would create a persistent incentive to perform well.  Simplified acquisitions could have that, but everyone over-complicates them by executing FAR Part 15 Source Selections instead of using FAR 13.5 or (pertinent to this discussion) assuming that we need to evaluate technical proposals in order to make sure we get a competent contractor (which lengthens the acquisition planning and evaluation processes).  It's unnecessary and it's created a vicious cycle that we can't break out of (because most of our training is OJT most people just do what was done last time and find reasons to explain why after the fact).

Here's a challenge for you - try what Vern and I and others are advocating for just once and see what happens - I think you'll be pleasantly surprised.

And check your PMs.

41 minutes ago, ContractingCowboi said:

Fair point. But if I'm going to sign my name to something, I want to make sure the contractor knows what they're doing. Because once they are awarded a contract, in my opinion, they are a reflection of me and my team.

Well you're not convinced by Vern's framer example, so let's try this:  There is an entire business segment dedicated to writing proposals for companies seeking Government contracts (Google "Government Contract Proposal Writing Services").  The information you're "evaluating" in the technical narratives may not even be from that company and yet you're relying on it to assess whether the contractor knows what they're doing...

41 minutes ago, ContractingCowboi said:

I'm curious to know what you think would be better data to look to determine a contractor could perform rather than a technical narrative? 

You should re-read FAR 9.104-1, there is a wealth of criteria there to consider when it comes to responsibility that a Contracting Officer can consider in order to avoid being bamboozled without needing a technical narrative:

Quote

To be determined responsible, a prospective contractor must --

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104-3(a));

(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

(c) Have a satisfactory performance record (see 9.104-3(b) and Subpart 42.15). A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9.104-2;

(d) Have a satisfactory record of integrity and business ethics (for example, see Subpart 42.15);

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors). (See 9.104-3 (a).)

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9.104-3(a)); and

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also inverted domestic corporation prohibition at 9.108).

Keep SAP Simple.

16 minutes ago, ContractingCowboi said:

A 3-5 page blurb of how the contractor intends to meet our needs isn't overly burdensome, as long as you keep it simple.

The problem with that approach is that you likely end up in what Vern's coined an "essay contest" because that "3-5 page blurb" probably contains zero promises.  Useful evaluation factors are those that either evaluate the promises of an offeror or their capabilities.  A "3-5 page blurb" of what an offeror could do is not a promise and does not demonstrate their capabilities (it only demonstrates what they think they are capable of...but most likely it merely parrots the SOW/PWS).