JMG

On ‎6‎/‎27‎/‎2016 at 8:48 PM, Scorpimouse said:

Jamaal - Good thoughts thanks.  This isn't a "repair" or "maintenance" contract in that sense, so that exception wouldn't apply.  It's more like a BOS contract where they "operate and maintain" the base, and by base I mean a small remote Air Force Station. 

I also wouldn't consider the property I'm talking about "incidental" as I believe the FAR defines that term.  Some things certainly are "incidental" and those will be provided as such ( tables, chairs, and large ovens and walk-in coolers in the industrial kitchen, etc.)  The stuff we're talking about here is things like shop stock (nuts and bolts, connectors, etc.), tools, extension cords, small appliances, spools of cable and wire, etc.

I believe FIAR requires EDA be the central repository, but I don't know for sure - I'm definitely still researching that stuff.  However I do know the Air Force has chosen to implement it by attaching the property to the contract and uploading to EDA. 

I believe property that is used in performance of a contract can only be assigned to one contract at a time, so there shouldn't be a case where multiple contracts are attaching the same property, resulting in a double-counting situation.

 

Navy is experience the same asset management policy, but I think the AF is ahead of the game. FIAR is a huge focus now. It will be interesting to see how it evolves and if it makes it way into acquisition regulations. This is an interesting post. Thanks for sharing. Please keep us posted on the strategy you take.  

Thanks Todd. So I hope we have answered the OP's question.

On ‎5‎/‎7‎/‎2016 at 9:30 PM, Todd Davis said:

 Is there something in your contract that requires them to use the proposed labor categories?  Just because the proposed something (e.g. specific labor categories or specific means/methods, it doesn't mean they have to stick to it unless their proposal was incorporated into the contract or the contract otherwise required them to use the stated categories or means/methods. Therefore, they would be entitled to an adjustment for those employees (regardless of classification/category) in accordance with 52.222-43.

Unless it is necessary and stated in the contract, the Government should not be in the businesses of telling contractor's who they can and cannot use to preform the work required by the contract.

Vern covered this politely in his last post, and I am surprised he did.... By this rationale, a contractor can enter into a FFP arrangement with the Government, for an agreed to price, then switch every labor category on which that FFP was based.  Also, by this rationale, as long as the contractor is conforming to any labor mix within the SCA WDs, they can request a price adjustment to the contract without previous CO review and approval of the deviations. I don't think that's a good business deal for the Govt, do others? Please let me know if I am off here! I'll own up to it.

Do you consider the added labor categories out of scope of the contract or the original competition?

Thanks Vern. Would another example of standards, taken from the DOD Source Selection Procedures, be relevancy of past performance (p.27) ? The standards for relevancy being :

Very relevant; relevant; somewhat relevant;  not relevant 

(setting aside your opinion of the document)

Ref: https://acc.dau.mil/docs/DoDSSP/Source%20Selection%20Guide%20and%20Memo%201%20April%202016%20ljm.pdf

Just a note: other observers are interested on how ji20874 is executing past performance evaluation without standards in his office. A method was mentioned by another post, but I think it is worth further discussion. Thanks.

Olga- What does the CPFF CLIN state? Are the estimated costs and fee specifically identified?

If you are talking about not awarding immediately after the 5PM posting ? Yes, I have heard of that.   

He is an O-10. I'm pretty sure he understands how acquisition works. Army's Program Managers are O-5s.  We have a requirements problem. Again.

“We are not talking about nuclear subs or going to the moon here. We are talking about a pistol.” Said the General (the requirements lead)

$365 M, for what appears to be a commercial item, and two years of testing? Terrible. 

The solicitation states LPTA for award of multiple contracts? Or the task orders will use LPTA procedures?

Vern,

Thanks! I will dig.

46 minutes ago, joel hoffman said:

So, I think you are asking why FAR doesn't address not using a defense to defective pricing when there was no specific agreement on "total costs" within the "total price" but there is agreement on total price, correct?  

Yes.

How is it possible to agree on total costs but not on profit, then agree on total bottom line price based upon total bottom line cost plus unagreed profit? 

If you are negotiating at a bottom line price you have no agreement on total costs. I don't know why you would go bottom line if you had agreement on total costs; that doesn't make sense to me.

 

Quote

 

13 hours ago, Vern Edwards said:

JMG:

I'm going to hit it back to you. What sort of defense would 'agreement on total price" be? So the parties agreed on a total price -- so what? How would that be any kind of defense if the government could establish its five proofs? What would the contractor say? Yeah, but we agreed on a total price? How would it follow from agreement on total price that a government defective pricing claim would not be valid?

I don't think its a good defense, but I am just posing a question to what the defective pricing clause states. It must state total cost, and not total price, as an invalid defense for a reason? Why not total price or total cost?  It's a FAR based question. I get all the answers- all good. Good discussions. Thanks.  

I appreciate the references and burden of proof requirements. Any opinions, or experience, with the posed question. I like how Vern phrased it:

"What do you think? Since the defective pricing clause does not prohibit a "bottom line price" or "total price" defense, can a contractor defend itself against an accusation of defective pricing and false claim by saying that the parties agreed on a bottom line/total price"?

Curious for feedback...

Does settlement at a bottom line price, of a sole source contract over the TINA threshold, impact the reliability of a defective pricing claim? FAR 52.215-10(c)(1)(iii) states the contractor cannot use agreement on total cost as a defense, but what about total price (when profit was not specifically agreed to)? Any pertinent case law would be appreciated. Thank you.

Thanks Help. Interesting. So DCAA will still review but just provide objective results? I tend to think DCMA lacks the local knowledge to perform such reviews; they would have to reach out to a cost/pricing center or other team (similar to CPSR).

28 minutes ago, govtacct02 said:

As a follow up - my local DCMA office provided the adequacy review program, that includes conformity.  If you need it, you can ask your DCMA, who now has disclosure statement adequacy determination responsibility that DCAA once had.

Can you qualify this? I understand it to be that, while DCMA has determination responsibility, they rely on DCAA to perform the review and compliance. At least in my recent experience.

Weather window? Is this construction?

If it is going to competitive, and you believe the preparing contractor will propose, why would you let that happen? Has market research been conducted?

Under what contract vehicle is said contractor writing your SOW? You may have an Agency OCI clause in that contract which backs your intuition.  

brent- Ask your DCMA CA. You might get invoice/voucher/ financing rejections when your contractor bills. You will then have to do a contract mod. DFAS is really strict on payment instructions per the PGI 204.7108 . Also see PGI 204.7103

Michael700- Agreed. This approach should not be used to developmental or complex acquisitions. For A&AS where its CPFF LOE where the solicitation of provides the estimated hours and labor mix, it is a sound approach; and supported by GAO if you read the case.

Possible, but you how could you determine the costs are unrealistically low in this manner? I don't think, as long as you are consistent, the realism analysis would be successfully protested. It would be a reasonable and realistic representation of what the market offered.

I cant figure out how to paste a link here, but please check out GAO case B-408959: Jan 6, 2014, QMX Support Services. This is a statistical method that I think works well if LOE hours and mix are provided in the solicitation. For direct rates: the number of data points (offers) to have a justifiable standard deviation would need to be greater than five, presumably (as supported by GAO in the provided case). I have also seen use of glassdoor or salary.com and their standard deviations, if applicable to the situation. For indirect rates: many times you will not have FPRR/FPRA for small businesses. In this case you can use the provisional billing rates established by DCMA, or request actuals (Government channels first per FAR 15.403-3(a)(1)). By the way, this case is not clear on if the statistical analysis was conducted at each discrete cost element level or at the burdened labor rate level, to include indirect costs and fee. It is possible the Navy may have verified the direct rates via market tools, and the indirect rates via DCMA, but actually ran the statistical analysis at the burdened level to ascertain cost realism. I would really like to know the answer to this; or if someone has a differing opinion based on the read please provide (note that the comparative analysis as described was at the "proposed labor rate"- is that direct or burdened?)

Here is an excerpt from the case:

The agency received five proposals by the RFP’s May 29 closing date....With regard to the agency’s cost evaluation, the record reflects that the agency examined the cost elements of each proposal and conducted a statistical analysis of proposed labor rates by comparing them to the averages of the labor rates proposed for each labor category. AR, Tab 13, Business Clearance Memorandum, at 16-18. Since TechFlow’s rates were within two standard deviations of the average of the rates proposed, the agency considered them realistic. Id. Additionally, the record reflects that the agency obtained and considered audit information from the Defense Contract Management Agency (DCMA) in finding TechFlow’s proposed costs realistic. Id. at 19-23.

Just my thoughts on the proposed topic, but hopefully it spurs some new ideas.