REA'n Maker

I was trained that incorporating a proposal is a bad idea. Too much possibility of contradiction. If there is something in the proposal that adds value to the award, incorporate it. Adding the whole proposal is just sloppy and, as several have pointed out, isn't really a substitute for a jointly-developed SOW/SOO, which is the concept which (apparently) drives the need for incorporating the proposal in the first place (i.e., the Government did an incomplete job in describing the requirement.) Finally, I worry about adopting a contractor's proposal and presenting it as a government work product. Does the contractor give up ownership once it is incorporated? Can the contractor file a claim/REA in regard to a SOW that they wrote?

On a related note, FAR 52.215-22/23 are two nominees for "Dumbest clauses in the FAR". Q: Can a contractor charge pass-throughs? A: Yes, but with caveats Q: What kind of caveats apply to pass-throughs? A: Caveats that prohibit excessive fees, of course. Q: What constitutes excessive? A: You know; when added-value doesn't justify the pass-through. Q: OK. Since 52.215-22 applies only to subcontracts comprising >70% of TCV, can I pay excessive pass-throughs on sub contracts comprising <70% of TCV, regardless of added value? And why 70%? A: I dunno; 70% just felt so right. Q: Considering that every key term and provision of 52.215-22 is subjective and/or arbitrary (e.g., "excessive", "value-added", "70% of TCV"), what is the point? Every negotiator already has the right to every piece of information mentioned in the clause (or at the very least, to develop an independent position which outlines what "excessive" means in the context of that negotiation). A: But we wrote a clause... Well thank God you wrote that clause, because 1102s everywhere were just wandering around like idiots paying excessive pass-throughs up the wazoo!

Framing the fee justification in terms of risk always helped me during my Part 15 days. Justify the negotiation fee objective on perceived risks and how they can or cannot be mitigated. You made several good points regarding risk and risk mitigation in your post. And this! It took me years to realize that developing a detailed negotiation position didn't mean negotiating the details, and agreeing on a total number didn't mean the parties agreed on how they each arrived at that number. Craft your PNM to support the total number, not each cost element. Hence the Art & Science of Procurement.

Part of the problem here is that you are relating this story from the perspective of a subcontractor. Have you seen the prime contract modification? How do you know the Government "just unilaterally issued an extension as an administrative change and [is] expecting us to "fix" the "errors" for free?" Get a copy of the prime contract mod, verify the authority under which it was issued, and read what it says. Until then you are just guessing. If I were you, I would be concerned that you may have become unfairly caught up in an issue that was in fact the fault of the prime, and the prime is using you as an excuse. It's extremely hard to believe that a prime contractor would just accept an unfunded extension solely for the reasons you stated; it's far more likely that the prime provided the PoP extension as consideration for some acknowledged deficiency on their part. As Joel points out, PoP extensions aren't usually part of remedying a defect anyway. $100 says the prime screwed up and is trying to minimize their losses by directing you to take on some of the costs of fixing that screw-up (e.g., maybe the prime's failure to communicate that optics were important resulted in the deficiency). It seems clear that the prime's extraordinary request to provide work for free more than justifies a peek at the mod that supposedly compels that free work.

This whole case is very obtuse - the contractor is not saying that the government actually did anything to harm them under the terms of the contract, but that the government owed them money under the terms of an accounting standards clause that had nothing to do with actual performance ("a failure to intervene in a qui tam action"). It also introduces the concept of an FFP being immutable regardless of circumstance. I had an REA filed against one of my contracts back in the early 90's, but it was related to a defective data package provided as GFI. The contractor had very detailed cost records related to their diagnosis and corrective action, related to building compliant rocket solid motors ("compliant" in this case meaning "motors that don't blow up" 😁). This one seems to have started in relation to a data package, but that issue kind of faded into the background quickly. Was anyone else startled to read this part?: Part 50 doesn't predicate rights to an adjustment on a modification being issued. Does anyone know what the referenced decision says in full? (e.g., does it talk about "implied" or "constructive" modifications?) In the meantime, I'm going to pop some corn and watch this drama unfold in the COFC.

Having worked both places, and having completed my contracting internship there, I would recommend DoD. Stay away from the Pentagon though.

It sounds a lot like contractor-run depot maintenance. For Naval aviation anyway, we used Basic Ordering Agreements, under which we could issue orders for teardown and the resulting maintenance as separate actions. Many times the maintenance part ended up being ceiling-priced based on an FFP per hour estimate, with consumables and parts priced at-cost.

To what end? Are you actually going to throw a sub off the contract based on their re-bid? What does your subcontract agreement say about options? Did you include the quals of your sub(s) in your proposal/quote? I would be worried about creating the impression in the client's mind that the prime was pulling a bait-and-switch, i.e., it looks kind of sneaky.

I told them the basis for my decision in this example: price and delivery for a compliant product, i.e., give me your best price for your best delivery. There is nothing in the FAR which requires a (literal) calculated decision below $5M. And the FAR allows "broad" discretion at that.

I can say the procedure involves "the best value combination of price and delivery" and leave it at that. I wasn't suggesting I can decide after I get the offers; I was saying that I can set the general parameters of what I will look at and use CO discretion based on the responses. Fair Opportunity is the only real requirement for a 16.505 Order. Per your cite:

Why would you want to state 'target qualifications', unless you are saying that qualifications that exceed the target are not desirable?

Why would I box myself in with contract language when I am allowed to use my professional judgement based on the specifics of the scenario at hand? 1102's are at the top of the government pay scale for a good reason.

The answer in regard to 16.505 competitions is "whatever approach is in the best interests of the Government". If you think it might result in a better price, send out to all who you originally sent it to - why not? Unless it's over $10M... Part 16.505 is as close to exercising common business sense as the Government gets. Learn it. Live it. Love it.

I've seen potential vendors go to their counterparts in the program office with questions, thinking that doing so is synonymous with "responding to a solicitation". I ignore any question that comes in through that route, simply because I'm not convinced that the question is being posed by an individual authorized by the vendor to submit one.

"Upgrades" in DoD typically refer to system capability enhancements (e.g., "Tomahawk Block IV upgrade"), which are typically done at the Department, Program Office level (Navy PEO-T, etc.) As Vern mentions, DLA typically takes over procurement responsibility from the Departments once a system/item moves to the sustainment stage of the product life cycle; oftentimes these items are common across Departments. You originally made it sound like end-of-life replacement of an obsolete item. So are you "upgrading" systems, or "replacing" items with a similar (currently available) capability?

You could always include "FAR 52.217-10 Vulcan Mind Meld (Sep 1966)" . (I hereby declare this horse "dead").

Nothing in your anecdotes has anything to do with the point of professional services not being readily transferable to a "backup". I've actually written these types of contracts for physicians at the VA, and they are comparable to personal services. So no, I'm not grasping.

Whoever issues licenses to practice medicine. So you're saying that every position has to actually be filled by 2 people, who are certified in advance, so that in case one is out, the other can parachute in at a moment's notice?

Let me know how that goes. "Substitute Doctor" isn't really a professional designation I'm familiar with. Who certifies on a moment's notice that Dr. Backup is qualified? Nothing says quality patient care like the words "Hello; you don't know me, and I've never seen you before in my life and am not familiar with your case, but you'll be putting your life in my hands until further notice".

The whole concept seems like a way for a schedule-holder to act as a front for less qualified entities, with the onus on the CO to certify the arrangement. The obvious question is "why"?

For SCA-covered work, sure. I was thinking of the professional services world (MOBIS, etc.), i.e., you can't just pull Engineer 2 from storage and have them bang out code without interruption when Engineer 1 is sick.

You can't just write a contract that says "I own you for 40 hours a week". Employment and Labor law comes into play regardless. This is why people "love" the government so much: "do as we say; not as we do". Happens all the time - ever seen what happens when an onsite support contractor asks for a reasonable accommodation? I've seen Feds get indignant to be even asked that question....as they sit at home with their government-provided telecommuting equipment while their office sits empty, because of their tinnitus, or hangnails, or foot fungus, or other innumerable imaginary maladies..

Ok; fair point. I guess my point was that, for example, if during contract performance an end-user is willing to trade schedule for increased capability, the metrics approach to performance measurement doesn't really account for that (i.e., a consideration agreement doesn't make value judgments). And 'compliance' is typically a regulatory issue of no concern to the user (does a user really care if the prime subcontracted at the levels promised in the proposal?)

My favorite section of 52.219-16 is the part where the CO is required to transfer the liquidated damages extracted from the prime to the sub or subs who were harmed by the prime's non compliance....SAID NO ONE EVER!! 🤣

Meeting the customer's mission is the only important outcome: ordinance on target, new software capability, replenished copier paper before the tray runs out, or any other way of stating "on time/on budget/on target". Acquisition supports the mission; it isn't the mission. "Compliance, timeliness of delivery/performance, cost/price" are secondary measures. Sort of like how a starting pitcher's ERA, which, while interesting to aficionados, doesn't necessarily determine who will score the most runs in 9 innings on any given Saturday afternoon.