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REA'n Maker

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Everything posted by REA'n Maker

  1. Specific Performance

    Commercial real estate contracts, yes? It may seem that way to the overtly pedantic, but the topic clearly goes to the whole meaning of a contract, and what you can 'do' with one. Is it a document to compel action, or is it a joint agreement towards a goal? Does it show good faith and fair dealing on the part of the government to include a term such as that ? As Jamaal said, it IS used as a contract term, but within very specific applications. The conclusion is clearly that Specific Performance is not a contractual remedy in the general sense. So why and why not? It goes to the very heart of those 5 words which define the CO's mission: "In the Government's best interests". We can't spend all of our time yammering over the treatment of indirect overheads.
  2. Sealed bid- Late Price Modification

    Is that sequence of events truly accurate?? Who heard the protest? Who directed the "corrective action" of accepting an altered, late bid (as Matthew points out, it was late regardless of "version")? Were both bids low?
  3. Tracking LOE in FFP subcontracts

    ....but you said above you had a CPFF prime contract. What is your rationale for invoking Part 16.202 in regard to your subcontract when it has no relevance to your prime contract? It sounds like the COR is asking that you flow the requirement to track LOE down to the sub. If you have a contract that requires you to track by LOE, you need to track by LOE, subcontractor or no. Whether that impacts your agreement with your sub is a question only you can answer. It's up to you to align any mismatches between contracts, terms, etc.
  4. CPARS comments

    COs have got to stop looking for someone or something else to justify their decision making. CPARS is the ultimate GI/GO system ever produced, and that's all it will ever be: a dump for widely disparate, ad-hoc, self-selected, perspective-based narratives, written many times by people who can barely string a sentence together (although PPIRS is technically the "dump"). Every contract failure has a context that is not universal, and needs to be judged on its own, using sound, professional judgement, with a view towards how any past failure applies to the procurement at hand. No CO worth the paper their warrant is printed on would ever say "There is no need to apply post-award contract surveillance because of the contractor's excellent CPARS assessments", yet centering an award decision on a bad CPARS rating is somehow considered logical. That's what has to change. This is not a software problem.
  5. Specific Performance

    BLUF: What vendor in their right mind would ever sign a contract which gave the CO the unilateral right to demand Specific Performance? Could the CO demand Doubleplus Specific Performance to remedy deficient Specific Performance? Risk = $$. So even if you DID get a vendor to bite on such a term, what are the chances their price would be deemed fair & reasonable? Would you compel a vendor to build an F-35? Would you want to fly that F-35?! I don't think that Efficient Breach and Specific Performance are related concepts. The remedy to an Efficient Breach is liquidated damages, which is the primary factor in the Efficient Breach decision in the first place. And if I am breaching, how could I be held to a 'Specific Performance' term in the contract I am repudiating, outside of a court decision? Also, whither T4D ? Would Specific Performance take its place, or would Specific Performance be in addition to T4D? Kudos on starting a discussion thread that doesn't involve Part 31!!! Hypotheticals like yours are much more entertaining and thought-provoking! (Coincidentally: "Big Tobacco's court-ordered ads make their debut" http://www.cnn.com/2017/11/21/health/tobacco-ads-court-order-bn/index.html)
  6. Specific Performance

    From your own source: "Most commonly ordered in cases involving real property and rare chattels." I'm guessing that it's safe to say that compelling performance isn't really a practical tool in the Government CO's toolbox. It appears that Specific Performance is primarily applicable to real property, because property tends to be unique and its value is subjective. Also, it's not something that could be built into a contract anyway (i.e., it would be the potential remedy to a legal dispute, like paying the protester's costs.) I would also add that logic dictates there would have to be a clear and unequivocal act with a definite outcome that would be compelled, such as transferring title in a land sale. Contrast that with, for example, HHS demanding Specific Performance defined as "a working Affordable Care Act web site"
  7. Access to CLIN funding after POP end date

    Let me guess: they've been issuing funded Modifications instead of proper Delivery Orders to obtain their task-level requirements? My advice to you is to start drinking heavily.
  8. The 2018 NDAA contains an interesting provision being dubbed "The Amazon Amendment", which is described in Section 801 as "....a program to procure commercial products through online marketplaces for purposes of expediting procurement and ensuring reasonable pricing of commercial products." (http://thecgp.org/images/Section-801-2018-NDAA.pdf) Key Provisions: "...is used widely in the private sector, including in business-to-business e-commerce..." "...enables offers from multiple suppliers on the same or similar products..." "...a procurement of a product made through an online marketplace under the program...is deemed to satisfy requirements for full and open competition...[and] to be an award of a prime contract for purposes of the goals established under section 15(g) of the Small Business Act.." "....shall be made under the standard terms and conditions of the marketplace relating to purchasing on the marketplace..." "...the award of a contract to an online marketplace provider ... may be made without the use of full and open competition." "...the Comptroller General of the United States shall submit... a report on small business participation..." It seems obvious that Section 801 is implicitly referring to familiar online retailers such as Amazon, but it also seems companies like Grainger might also be included in the potential stable of eCommerce providers. It's notable that they have acknowledged the potential effect on small business and are creating a reporting requirement to capture that. Is this innovation, or predation?
  9. Privatization

    As a proud former GS-er and 1102 who has gone on to work for firms such as IBM and PriceWaterhouse, I can confidently state that some of the people I worked with in the government are, in fact, some of the most talented and devoted people I have ever worked with. The problem is that the "reservoir" Michaels describes is more like a "catch pond" which is evaporating with each passing day. Good people get fed up and leave, and the poor performers just burrow in deeper as they are passed around from agency to agency like a bad cold. Michaels' idealization of government employees is almost cute (how he is able to impart such sterling qualities on people he has never met and has no experience with* is anybody's guess), but it's ultimately a shame that he has shoehorned his strident politics into such an important topic. The fact he hangs his entire argument on the valor and integrity of people he knows nothing about simply because he believes in the inherent primacy of the public sector, has caused me to lose interest in anything else he has to say. (* https://law.ucla.edu/faculty/faculty-profiles/jon-d-michaels/)
  10. Privatization

    Take a look at the following opinion piece Michaels just penned for the UK Guardian: https://www.theguardian.com/commentisfree/2017/nov/07/donald-trump-dismantling-american-administrative-state Is it just me, or does it look like it was written by someone with other than objective, scholarly intentions?
  11. Precisely. The question should be: Is checking SAM prior to spending taxpayer dollars a sound business practice? Contractors' circumstances change all the time. I just had one show up with a "Delinquent Federal Debt" flag in SAM prior to executing a mod. As a procurement professional, how would it look if you didn't know that you were sending tax dollars to someone who owed the American public a monetary debt, especially when the information was literally at your fingertips? What would you say if an auditor asked why you obligated funds to someone with a delinquent federal debt? What does a delinquent federal debt say about that contractor as a reliable business partner going forward? How about the fact that (in my case) a little further research showed that this vendor had a previous Federal Debt flag?
  12. New Info after proposal submission

    Once again, the Government cuts off its nose to spite its face. Why is it better to throw out an entire proposal that is otherwise acceptable because of the normal churn and burn of participants in a market-based economy? Not allowing an offeror to improve their evaluation results in case of a substitution is the simple fix. No wonder people hate this town so much - it defies logic and reason in favor of mindless agendas, all in the service of C'ing Your own A.
  13. Thanks for the schooling on this topic. Depot/Repair contracts make perfect sense in this scenario. My mind was locked into the scenario more akin to Vern's example, whereby services are being performed at the government's behest in changing locations, that are impossible to precisely predict prior to award. Always something new to learn in this business!
  14. I had reviewed all the relevant prescriptions prior to making my post. 22.109-4 is just a more detailed rendering of the clause (which reads like a provision as much as a clause....). I'm trying to figure out: 1) what sort of bizarre scenario would lead the government to let the contractor define the possible place of performance, and; 2) why a contractor would accept a risk such as an unknown place of performance. OK; now that makes sense.
  15. Privatization

    Not to be trite, but the Agency Problem is no less a "threat" to good government than privatization is. Privatization at least requires a satisfied customer prior to money changing hands.
  16. LPTA Question

    I use "approach" as a reference to an abstract idea or procedure which can (and should!) be altered by experienced reality, hence, my trepidation at applying an LPTA approa...err..."methodology", to a technical approach. Believing that it is in the government's best interests to procure an approach and not a result is nonsensical and self-destructive; any properly evaluated approach must be conducted in light of its ability to achieve a result. Otherwise it would be like (subjectively) evaluating production methods in lieu of (objectively) testing the end-products.
  17. I wish I understood how that provision/clause is supposed to work. The vendor can ask for any wage determination in addition to the ones named in the solicitation (based on what criteria?), even though the government admits the actual place of performance is unknown (so how did the CO pick the included wage determinations?), but regardless of actual place of performance, no price adjustments will be allowed to the proposed rate after award?
  18. That was your scenario, not mine....I was willing to concede that rather questionable example in favor of the overall gist of your argument. Henceforth, I shall endeavor to couch my agreement with your arguments in a more pedantic manner to avoid future confusion and/or criticism. Beginning: there's a fire. Middle: deploy to fire zone. End: Put out fire. Ergo, a terrible application of an FFP-LOE. To your point above, one potential outcome of an FFP-LOE is "there is not enough available information to reach a conclusion/result at this time", and that places the government at a huge risk. Hence the $150K threshold. There are sound business reasons for discouraging contracts that may produce little or nothing of value, and when it's an absolute necessity to employ such a vehicle, placing strict limits on your exposure. That's not "doctrinal"; that's ethical and professional. I don't need the FAR to tell me not to do stupid stuff.
  19. I would say "wildlife observation, tracking, and control; wildland fire-fighting services; testing; non-R&D investigations; inspections and other QA tasks; observation services of various kinds;" would fall into the Special Studies arena.
  20. I view it more as "respecting the intent", which is 100% clear, as further indicated by the "Limitations" section: Trying to shoehorn a non-R&D type effort into an FFP-LOE is just flat-out game playing and unprofessional, particularly if you are trying to extend the concept to a multi-million dollar effort not related to R&D/special studies. If a contracting office makes it harder to award an FFP (the government's preferred contract type!) than to waive the restrictions on a FFP-LOE , they should be immediately disestablished, and their warrants ceremoniously burned. I would also argue that "may be used only" is synonymous with "shall" in this context (think of the "may be used only on public roads" language in a rental car agreement.) Please don't tell me they also avoid the hassle and scrutiny of optioned FFP Supply contracts by awarding Fixed-Ceiling-Price Contracts with Retroactive Price Redetermination!!
  21. On that note: What would the government have to gain by maintaining a draconian approach to Key Personnel? I'm convinced that there are Key Personnel provisions/clauses floating around out there that are probably illegal, as they read more like Mandates for Indentured Servitude than solicitation provisions. And are you really going to T4C someone because one of their people had the temerity to (gasp!) change jobs?? (Cutting off your nose to spite your face comes to mind.) As a contractor, wouldn't you out of normal business practice inform the government of a material change to your offering before award, such as an obsolete part# or model#? What responsible businessperson would propose a product or level of service they knew they couldn't provide? If Key Personnel are SO critical to success such that a change of name(s) would affect your evaluation, should you be in the R&D or Grants arena? The FAR isn't necessary to the formation of rational decisions on either side.
  22. It's akin to awarding an "FFP" contract whose SOW consists solely of the words "contractor must deliver 1880 hours". 1880 hours is a BOE, not a contract term. I'm not sure "disingenuous" is the word you're looking for here...I'm saying I'm 100% within my contract rights to invoice for the full FFP amount whether a particular FTE was in the office on a particular day or not; it's disingenuous of me to suggest that the 1880 hours used in the BOE have any bearing on that right, certainly. Remember: Per FAR 16.207-2, FFP-LOE is for R&D <$150K only. I would also maintain that the "FFP-LOE type" is redundant and unnecessary anyway: you're always measuring the suitability of the output in an FFP environment, based partially on your assessment of the inputs and achievements against goals, and on a common understanding regarding the LOE required. An R&D SOW would merely define those desired goals more abstractly than (for example) a program support SOW.
  23. You might try "the FFP contract is based on an 1,880 hour standard" shtick. Despite the glaring logical fallacy, it has always worked for me (I don't know whether to be pleased or horrified).
  24. IDIQ Decision

    "Shall" does not imply "choice": 15.403-4 Requiring certified cost or pricing data (10 U.S.C. 2306a and 41 U.S.C. chapter 35). (a)(1) The contracting officer shall obtain certified cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403-1(b) applies. Nor is it a 20-year-old "anecdote"; it is a 100% valid and relevant scenario to this day, particularly in DoD. The CO did make many, many judgement calls based on imperfect information, as was his job. I myself was very adept at explaining in a PNM how DCAA misinterpreted a specific cost treatment; I was the one having the ongoing negotiations after all, and DCAA had only one shot at it. But spit-balling is not an option when procuring a developmental item/major system. Perhaps you didn't understand the core point: the CO could do nothing about a contractor who pulled back a negotiated Part 15 proposal due to the fact that the contractor could not certify the C&P data (or even GAAP for that matter), i.e., they didn't have a priced proposal on the table. The fleet wasn't going to wait to deploy until the bean counters worked their magic, and negotiating with yourself is generally considered poor trade-craft... (PS - If any CO "relied like a crutch on DCAA", they'd spend their entire career hopping around on one leg. )
  25. Warning To Proposal Writers (and Agency Evaluators)

    It's pretty clear: they wanted the offerors to do the agency's job (impute meaning, define relevance, and quantify value). But heck; I'm going to follow the AF's lead, and state the eval criteria on my next RFQ as "quotations shall be IAW with the FAR and other applicable regulations, which will be evaluated on a 2-step, pass/fail basis".
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