REA'n Maker

2 hours ago, Vern Edwards said:

I don't know that it "incentivizes" protests.

Maybe I should limit that comment to the CICA stay, which is a huge incentive to file a protest regardless of merit.  The incumbent can make way more money continuing to bill for a month or two on a $100M contract than they will ever spend on a protest.  All they have to do is ask and viola, CICA stay, and the money keeps rolling in!

(I have to say; I got a good laugh out of Vern's post regarding approach. So true.  Everybody uses it as a key term in solicitations and evaluations, but the implication in common English is that to approach something is a precursor to actually doing something.  "OK, now that you've approached it, what do you plan to do when you actually get there?" 🤔😄🤣)

Just got my first protest, from someone not even in line for award. 

But that still means a CICA stay and hundreds of hours charged by lawyers and others on a protest that is going to ultimately fail.  The only one who wins is the pre-award incumbent (and the protestor's attorneys of course).

How about mediation as the first avenue of a protest? I realize GAO is a pseudo-mediator but they are still a bureaucratic government agency with all the attendant baggage and sclerotic timelines. 

Or, maybe a more formulaic ("hurdle") approach whereby protestors would have to demonstrate competitive prejudice, standing, etc., before they are even allowed to file a protest.

I do agree that the current system incentivizes protests and is wasteful and expensive.  It seems we are more focused on avoiding protests than providing sound business advice. 

3 hours ago, Vern Edwards said:

Every majorr reform has failed, including, as you will see, commercial items (products and services).

I think treating issues related to public-sector procurement as business problems is a fallacy.  Public grants and contracts are used as political tools like no other, and contract reforms have never addressed how to balance business considerations with the 800 lb. socio/political gorilla on the other end of the see-saw.  (But maybe I'm too cynical after having just sat through a 2-year pre-award SBA size protest.)

Does any 1102 disagree that if we used purely economic/business logic, there would be the same three ginormous conglomerates winning every single federal contract?

I think the practical answer is 'no':

Quote

 

17.207 Exercise of options.

(a) When exercising an option, the contracting officer shall provide written notice to the contractor within the time period specified in the contract.

(b) When the contract provides for economic price adjustment and the contractor requests a revision of the price, the contracting officer shall determine the effect of the adjustment on prices under the option before the option is exercised.

(c) The contracting officer may exercise options only after determining that-

(1) Funds are available;

(2) The requirement covered by the option fulfills an existing Government need;

(3) The exercise of the option is the most advantageous method of fulfilling the Government’s need, price and other factors (see paragraphs (d) and (e) of this section) considered;

(4) The option was synopsized in accordance with part  5 unless exempted by 5.202(a)(11) or other appropriate exemptions in 5.202;

(5) The contractor does not have an active exclusion record in the System for Award Management (see FAR 9.405-1);

(6) The contractor’s past performance evaluations on other contract actions have been considered; and

(7) The contractor’s performance on this contract has been acceptable, e.g., received satisfactory ratings.

(d) The contracting officer, after considering price and other factors, shall make the determination on the basis of one of the following:

(1) A new solicitation fails to produce a better price or a more advantageous offer than that offered by the option. If it is anticipated that the best price available is the option price or that this is the more advantageous offer, the contracting officer should not use this method of testing the market.

(2) An informal analysis of prices or an examination of the market indicates that the option price is better than prices available in the market or that the option is the more advantageous offer.

(3) The time between the award of the contract containing the option and the exercise of the option is so short that it indicates the option price is the lowest price obtainable or the more advantageous offer. The contracting officer shall take into consideration such factors as market stability and comparison of the time since award with the usual duration of contracts for such supplies or services.

 

On 10/24/2023 at 1:16 PM, Oyster said:

"Where an agency does not evaluate an option to extend services under FAR clause 52.217-8 as part of the award, the agency cannot later exercise such an option because it would represent, in effect, a new procurement that must satisfy the requirements for full and open competition under FAR part 6. Major Contracting Servs., Inc., B-401472, Sept. 14, 2009, 2009 Comp. Gen. Proc. Dec. P176 at 6."

I agree with Vern Edwards that the GAO (not 'the courts') decision regarding the -8 clause is ridiculous and should be ignored.  (In regard to Latvian Connection, GAO stated in effect "we don't know if we have the authority to ban a contractor from protesting, but we're going to do it anyway".  GAO is by no means a court of law.) I wouldn't be surprised if that decision was written by a summer intern or someone of equal understanding.  It's an extension of the end date at the rates in effect at the time the extension option is exercised; that's it.  No offeror could possibly be disadvantaged by the exercise of 52.217-8. (Unbalanced pricing is already a criterion that can justify not making an award, which is the only possible discriminator in the "-8 evaluation" scenario).

DHS policy literally says to "evaluate by adding" which no sane person would ever defend as a logical process in any other context. It doesn't even require you to compare it to or justify anything.  Considering that the -8 can be exercised at the end of any contract year, why is adding the last option year pricing to your so-called "evaluation" valid anyway? 

21 hours ago, ji20874 said:

As I understand from this thread, there is no contract that obligates funds for later disbursement -- there is a GPC purchase

So the issue is how to claw back funds?  

Based on my recent experience obtaining my FAC-C Level III (after obtaining my DAWIA Level III in the late 90's) I'm shocked anyone could do a bad enough job providing training to get themselves effectively terminated.  The FAC-C training providers weren't even presenting the correct subject matter and could have cared less when informed of that fact (e.g., teaching and testing DFARS/DoD PGI and the proper use of WPN funding to an audience of DHS employees, among other patent absurdities).

On 9/29/2023 at 9:50 AM, C Culham said:

With regard to the Christian Doctrine remember it is a legal doctrine applied by courts.

Exactly. Has nothing really to do with the FAR per se.  A good CO would certainly consider it as part of a risk assessment associated with a decision, but it's not something the CO can invoke as an authority to direct a contractor.  Unless the application of Christian is crystal clear with some relevant precedent, as a CO I wouldn't even go there at all unless there was a sound legal opinion to back it up (because it's a legal issue as CC points out).  The Christian Doctrine is very narrowly applied for good reason.

How about down-scoping the contract to match what has been delivered, de-obligate excess funds, and Bob's Your Uncle?

 Half of their 'interim guidance' is a political campaign commercial.

How is that different from CPAF?

I would be happy if the newbies just showed an interest in procurement.  I was asked to 'mentor' a GS-13 on a A-E competition and I finally gave up even pretending this person had the slightest inclination to take ownership of anything 'we' (i.e., 'me') were doing.

On 8/2/2023 at 11:09 AM, formerfed said:

First it’s vitally important to start with the right people.  Recruitment is essential.  If you start with the wrong individuals, even at the trainee level, you face an uphill battle.  You want critical thinkers and those that can cooperate and collaborate.

I believe "procurement nerd" is the term you are looking for.  🤓

Show me where the FAR says anything about an "Alt-COR".  Is there such a thing as a FAC-ALTCOR cert?  USAID are a bunch of Birkenstock-wearing-ex-Peace Corps-hippies so I wouldn't put a lot of stock in anything they have to say about procurement (yes, I was there. Very nice people but my assessment stands 😋). What does 'absence' even mean?  'Absence' because the primary COR had to leave early to pick their kid up at school or 'absence' because they were unexpectedly deployed to the USAID Mission in Nairobi?  Do I need to pull T&A records if I am concerned about compliance with my delegation? 

  Hence my statement

On 8/9/2023 at 12:19 PM, REA'n Maker said:

I suppose the CO could prescribe different delegated duties but that just makes my head hurt. 

As a practical matter we have to assume our appointed CORs are competent and acting in the government's best interests, so I trust them to work together. If I can't measure it or enforce it, I'm not going to include it in my delegation.  But that's just me.

Happy Friday!

Has anyone read FAR 45.600?

Back in the 90's when DoD was down-selecting a lot of multiple-source programs like Tomahawk, I had to deal with 20+ years of GFP piled up in McDonnell Douglas GFP cages when we selected Hughes as the sole supplier.

There was a checkoff process that began with the plant clearance officer which ended many times with the government abandoning the GFP in place, at which point M-D auctioned it off to the general public (and let a guy named "Snake" leave the auction with a bunch of aircraft-grade aluminum billets that he never paid for.  You'd think they would naturally keep an eye on a guy named "Snake" but apparently not. It was in Florida after all. lol).  Then we negotiated with Hughes Aircraft over the value of the remaining GFP that they could use on their Tomahawk production line. 

After reading 45.600, I would suggest you catalog your GFP and submit it to the prime for disposition, cc:ing the CO on the original contract.  Personally, I wouldn't worry too much about privity at this point because whatever the prime/sub scenario is, you have GFP you are accountable for. 

Not to be too discouraging, but my Tomahawk negotiation took 2 years to complete.

1 hour ago, C Culham said:

Yet "alternate" COR is not what the OP asked about, it was "co-CORs"

You can call it whatever you want, but it's multiple CORs receiving a delegation from the same CO with each possessing identical superpowers.  Any term other than "COR" is a fiction. I suppose the CO could prescribe different delegated duties but that just makes my head hurt. 

Having set up more contract writing system user accounts than I can count, I can affirmatively state that all it takes is a branch-chief level authorization to set up a new user (e.g., temporary auditor accounts, etc.).  If they can't approve invoices, there's not much point in appointing them COR. 

Part 36 of the FAR talks about qualifications for A-E selection board members, which sounds more like what your customer is talking about. 

Quote

 36.602-2 Evaluation boards.

(a) Members shall be appointed from among highly qualified professional employees of the agency or other agencies, and if authorized by agency procedure, private practitioners of architecture, engineering, or related professions. 

I've worked for two agencies that designated "Alternate CORs" (to me a COR is a COR is a COR, but I digress).  As far as I know there is no statutory limit on how many CORs you can have, but our contract writing system only allows 2 CORs to have designated authority to approve invoices so that's the practical limit.

Do you want 2 CORs signing invoices?  Even if that is not the intent, it may be a result.

On 8/5/2023 at 9:35 AM, formerfed said:

A lot of agencies without their own audit capabilities use DCAA or another agency for audit assistance.

The problem is that DCAA only provides non-DoD audit assistance when they are not doing DoD work.  I have seen funded "DCAA non-DoD audit agreements" in place for years where the actual services provided were zero.  "We'll get to it when we get to it" doesn't really fly when you are running up against an award deadline.

Regardless, unless the audit capability is institutionalized, there should be no "final rate determinations" being made if for no other reason that the vendors turn around and use that assent on their other contracts.  I'm dealing with a vendor right now who declared a change to their accounting procedures and is submitting an entirely new methodology that has not been reviewed or approved by anyone.  How am I supposed to work "audit of new accounting procedures" into a milestone schedule AFTER we received proposals when we don't even have auditors? I looked at the numbers they submitted and they come out just fine, but the propriety of dropping direct O/H on consultants and subcontractors and replacing it with a lower G&A rate on a base consisting of all costs including subs & consultants?  Who knows?  

(My approach has been to only look at the difference between the approved method and the proposed method and only negotiate that amount.  That way I don't have to declare anything "compliant" or whatever the accounting term is.)

2 hours ago, Jamaal Valentine said:

Can you expound on this.

 Because FAR 52.216-7 Allowable Cost and Payment.   

On my $300M nationwide cost-reimbursement contract consisting of 3 JV partners and 15 subcontractors, a final indirect rate determination is required every year based on a proposal (i.e., subject to negotiation and settlement) submitted 6 months following the end of each vendor FY.  There are 3 of these contracts split geographically for a total of 9 JV partners and ~45 subs.  All of them submit their indirect rates directly to me so as not to disclose sensitive corporate information to their JV primes.  Reconciling billed vs final rates is the final step.  Then do all this two more times.  For one program.  (Note that the 52.216-7 states that indirect rate proposals are to be submitted to the CO and auditor.) 

I can run circles around 99% of my colleagues with my contract cost analysis skills, but I have no clue whether (for example) state and local contracts can be included in a federal contract indirect cost base.  (I actually wouldn't be averse to learning how to do corporate-level rate determinations, but I would also need relief from about 95% of my contracting workload). 

 That 3 hours of FAR Part 31 'training' I received as part of my FAC-C Level III cert doesn't really qualify me for this kind of thing.  As Dirty Harry used to say, "A man's gotta' know his limitations".

You are buying a service, not filling a position.  Focus on what needs to be accomplished and assume it's not a personal service until proven otherwise - personal services contracts require very high-level approval so don't even let that term enter your brain unless the requiring activity has already expended monumental effort in that regard.

On 8/1/2023 at 8:18 PM, C Culham said:

If the FAR ever gets completely updated T&M/LH might as well be removed.  T&M/LH are in a way unfunded mandates. 

Ouch (note my lack of disagreement).

The other farce is how agencies with no audit capability are allowed to award cost-reimbursement* contracts at all (the current answer is that they foist audit responsibility onto the COs and call it a day).  The Judicial Branch (at least when I was there) hard a hard prohibition on anything other than FFP just for that reason.

* edit

8 minutes ago, joel hoffman said:

What do you have to “report”?

TCV in FPDS, Congressional Notifications, etc.  

Quote

Guest Vern Edwards

Posted July 12, 2014

Well, I don't think what I proposed is especially complex. It's really rather simple 6th grade arithmetic.

My thinking was that since you can't be sure when you'll exercise that option -- after the first year, after the third, who knows -- an average of all years might provide a more complete and balanced measure. But, if you're going to get upset, we'll do it your way.

Frankly, I think the GAO's decision was stupid, and the agency should have refused to follow their recommendation.

😃😆🤣

Classic

25 minutes ago, joel hoffman said:

I believe that the government is evaluating, as part of the price analysis,  to compare pricing between competitors if the -8 clause would be exercised.

How could 'evaluating' a number you derived by adding 50% of the last option price to every proposal possibly affect an award decision?  It's a wash. (I suppose it's possible that it could affect an award decision if someone's pricing was really unbalanced but that's a problem in itself regardless of any  -8 calculations).

Quote

I don’t think that the full potential government obligation is the concern.  One can’t exercise the -8 extension unless it has funds available at that time. 

I was referring to reporting, not really the procurement process per se.  You can't exercise the -9 without available funds either and we include the -9 options in the total price so why not the -8?  We are under no more obligation to exercise the -9 than the -8.

57 minutes ago, C Culham said:

Point being evaluate as your solicitation says you must.   

 How arithmetic addition equates to an evaluation is beyond me. 

If the point was to capture the full potential government obligation it would make sense, but you literally write a+b=c in the PNM and move on, never to mention or consider the product of your mad math skills at any other point in the process.

I've been doing this since 1992 and have never seen such political micro-managing.  When I first heard someone at my agency say "the White House wants this $70M spent before November 2024*" I thought it was the usual program office BS/flexing, but it turned out to be true. Never mind that there are no bona fide needs identified, but By the Grace of God we're gonna' spend it.

*🤔

Quote

Through President Biden’s Investing in America agenda, we have championed initiatives to fuel our nation’s historic economic growth while reducing barriers and ensuring fair competition in federal contracting,” said Administrator Guzman. “The Biden Administration continues to raise the bar, reaching a record high level of contract spending with small businesses, supporting over one million good-paying jobs in manufacturing, construction, research & development, and other vital industries.

So much for the Hatch Act.

On 7/26/2023 at 9:02 AM, Don Mansfield said:

Why not create a line item for the option?

DHS prohibits creating separate -8  CLINs for the reasons cited by Witty.  But you have to "evaluate the -8 by adding the price for six months of performance to the total proposed price" even though the vendor never proposed it (that's exactly how it reads: "evaluate by adding".)  But don't include it in the contract price. Or in the Congressional Notification. Or anywhere else for that matter.   😐

1 hour ago, General.Zhukov said:

To get the badge, the contractor must (among other things, like a background check & fingerprinting) prove their identity and employment authorization by providing the documents to the GVT agency doing the badging. 

Note the OP said the requirement was for a local driver's license, which for a Federal contract is nuts. 

On 7/10/2023 at 5:18 PM, Retreadfed said:

You've got to come off the notion of invoicing for hours.

Yes to this. When I was a consultant I used to have a similar discussion with my back-office accounting people regarding "rates" on an FFP vehicle.  They couldn't separate the estimating methodology (hours x rates = total price) from the contract terms (FFP).   You should have seen the smoke come out of their ears when I introduced the concept of what IBM used to call a "management challenge" (offering a bottom-line discount to the estimated hours x rates).