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PepeTheFrog

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About PepeTheFrog

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  1. PepeTheFrog wants to find the Truth with a capital T about whether or not the proposal itself is considered cost or pricing data (rather than, say, facts that prudent buyers or sellers would reasonably expect to affect price negotiations significantly and which may or may not be used to prepare the proposal itself). Like most on the this forum, PepeTheFrog wants to learn and gain a deeper understanding of key issues in government contracting. When people provide false or misleading or murky or questionable information, PepeTheFrog and others question it, as they should. Retreadfed stated that a proposal is not cost or pricing data and provided a citation to a Board of Contract Appeals case. You responded by talking about your personal experiences and then posted a PowerPoint presentation by Natarsha and Dawn. Then you shifted the goalposts by saying that cost or pricing data is part of the proposal, which implies that you are walking back your assertion that the proposal itself counts as cost or pricing data that can be used as part of a defective pricing claim by the government. Of course, you are not walking back your assertion. You are doubling down and squirming around by shifting the terms of the debate. That is bad form. So far, PepeTheFrog finds Retreadfed to be persuasive and finds your various explanations and significant changes in argumentation/position to be severely lacking. @joel hoffman Please do not think that PepeTheFrog is picking on you, personally. Truth and order are very difficult and require significantly much more work and effort than lies and chaos. With no vigilance or curiosity, lies and chaos will win every single time. Finding Truth via negativa (by eliminating falsehoods or errors) is a great method and some people say it's the very heart of the scientific method. For your final question, the government does not have to prove intent or fraud to administrative seek and obtain a price reduction based on an assertion of defective cost or pricing data. The proof of intent or fraud will come about in litigation, as you know. Now it seems like your position is that the government should try to get away with whatever it can, as long as it can fool the contractor into compliance, even if what the government is doing is not based on sound principles, case law, legislation about certified cost or pricing data, etc. Throw out scary words like "defective pricing" (even if that situation does not apply!) and just get it done because you won't have to prove intent or fraud unless the contractor moves the entire ordeal into litigation. Well, fine. That actually might work! That is a form of advice you can provide on the forum, but you should make it clear that you're just telling the government to push around the contractor based on false, misleading, murky, or questionable information. Instead you keep trying to make it seem like your advice is based on something true or backed up by respected or acknowledge authorities, like laws, written policies, regulations like the FAR, or court cases.
  2. @Retreadfed provided a citation to a Board of Contract Appeals case which is supposedly related to this issue. In response and in opposition, joel hoffman cites to a PowerPoint presentation by "Natarsha Goode" and "Dawn Hampton," two employees of Defense Logistics Agency. Which is more persuasive as a source of reference or citation for a contracting professional? Natarsha and Dawn, or a Board of Contract Appeals case? The choice is yours! By the way, even if Natarsha and Dawn, two employees of Defense Logistics Agency, are more persuasive than the Board of Contract Appeals, PepeTheFrog does not see where the PowerPoint slides support the assertion above. Slide 22 states "What is a Cost Proposal? A breakdown by cost element with supporting data..." Is this the magic slide? Or is it the colorful picture of a pyramid representing the "Cost Proposal Package" on slide 40? Here is the other citation: Instructions for Table 15-2 in FAR 15.408. Here is a quotation from that citation: "C. As part of the specific information required, you must submit, with your proposal—(1) Certified cost or pricing data (as defined at FAR 2.101). You must clearly identify on your cover sheet that certified cost or pricing data are included as part of the proposal." @joel hoffman Is this the section to support your assertion? Have you actually thought this through and considered each of Retreadfed's points?
  3. PepeTheFrog agrees with a bilateral modification based on mutual mistake. This does not seem like a classic or provable case of defective pricing (in the term of art for federal contracting, not in the general sense of the two words "defective pricing"). Nobody will disagree that the contractor priced their proposal wrong (and that the pricing was "defective" in some way), but that is different from satisfying the elements of a defective pricing case. Here is the DCAA audit guidance, according to Briefing Papers article, on defective pricing: "(1) The information in question fits the definition of certified cost or pricing data. (2) Accurate, complete, and current data existed and were reasonably available to the contractor before the agreement on price. (3) Accurate, complete, and current data were not submitted or disclosed to the contracting officer or one of the authorized representatives of the contracting officer and that these individuals did not have actual knowledge of such data or its significance to the proposal. (4) The Government relied on the defective data in negotiating with the contractor. (5) The Government’s reliance on the defective data caused an increase in the contract price." https://www.crowell.com/files/Litigation-and-Proof-in-Defective-Pricing-Cases.pdf Numbers (1) and (2) seem questionable.
  4. In America, yes, unquestionably so, if "we" means the average of the entire population of America. The serious decline started in the early 20th century and took a nosedive in the mid-20th century. You face very harsh penalties if you explore how, why, or whether it is a good idea or not.
  5. PepeTheFrog completely agrees. It is difficult to change the ratio of A and B, although PepeTheFrog stresses that goal as critical, fundamental, decisive. If nothing can be done about the ratio, favoring and promoting the A's is the way to go. PepeTheFrog is very old for a frog. PepeTheFrog has seen many A's get the recognition and awards, and even promotions-- but then leave for industry. There is only so much the government can do for the A's. "Cool kid" groups is one gimmick (segregation, advancement, promotion, interesting projects). But sometimes even that is not enough. Many of the A's go to industry for higher pay and more prestige. It is extremely difficult for the government to compete with industry for several reasons, one of which is that industry is (relatively) free to fire every single B, eventually. One of the biggest dangers to organizational success is when this situation is reversed. The B's are in charge. The inmates run the asylum. If there are enough B's at the mid-level and top of the organization, nearly all A's will flee the scene. Then it's Gresham's law, swirling down the toilet. In industry, a new CEO comes in a fires everyone. In government, that's not possible. But it should be!
  6. It's not a network effect (multiplier). It's the reduction of inefficiency from removing waste. B reduces the ability of A. Combining A with A only seems to be a "network effect" because of the elimination of B. Much like pain, loss, and sadness has a greater effect than an "equal" amount of pleasure, gain, or happiness, the negative effects of B outweigh the positive effects of A. Some people are dead-weight loss. Think about your biggest problems (in the form of individual people) as a manager. A single bad apple can wreak havoc. A few can cripple an entire team. A bunch can destroy the entire division or company. Now imagine a federal workforce full of bad apples that cannot be fired. You don't have to imagine it! Welcome to the United States of America, 2019.
  7. PepeTheFrog has some bad news for everyone. If you put John Q. Smith through the absolute best training possible, including "cool kids" internships, and literally anything else you can imagine, John Q. Smith will still have the same potential. Whether you think this potential was created by God, genetics, his childhood environment, or any combination thereof, it doesn't matter. The potential is a limit. "A man's gotta know his limitations." John Q. Smith might meet his potential, but he cannot exceed his potential. This is a tautology, an obvious point. What is never discussed is that if John Q. Smith is a moron, all of the training and intervention was a waste. John Q. Smith's potential was to be a moron. He was not equipped to succeed in a white-collar profession. That's it. Some Americans like to tell every child that he can become an astronaut or a professional athlete. It's not true. Sorry! You cannot fix stupid. These are all fantastic ideas that will never amount to anything because you're not willing to admit that the federal workforce has become a welfare system, not a workforce. Work for welfare. Hiring based on satisfying political constituencies or protected classes. Better training! (Find a way to make dumb people smart.) Different training! (Find a way to make dumb people smart.) "Cool kids" organizations! (Find a way to extract the smart people from the dumb people.) Better rotations for high achievers! (Find a way to extract the smart people from the dumb people.) Special class of 1102 who only perform FAR Part 15 complex acquisitions, leaving simplified garbage to everyone else! (Find a way to extract the smart people from the dumb people.) "It's all so tiresome." (A) Everyone reading this has known one or more people who have a very high potential. You can use whatever word(s) you want to describe this high potential. Smart? Driven? Blessed? You observed how this person rose to excellence with hardly any help, or with less help than others. This person read books, read articles, learned from Internet websites, sought out mentors, etc. They were self-starters. They could teach themselves. (B) Everyone reading this has known many, many people who are the complete opposite of A. Here is a revolutionary idea. Try to find as many closer to (A) as possible, and most importantly, exclude and discriminate against people who are closer to (B).
  8. PepeTheFrog, eternal realist, thinks this statement should be flushed immediately and is a combination of: (1) CEO-speak or platitudes meant to inspire underlings to keep spinning the hamster wheel faster: "everybody is incredibly important to the bottom line" "treat the janitor the same as the CEO, we're all exactly the same and incredibly valuable" "everybody has the potential to be a superstar" (2) egalitarian / equalitarian / tabula rasa / Enlightenment fictions AKA sheer nonsense...everybody is exactly the same, humans are interchangeable widgets, what matters is hiring Big Consulting Firms to arrange the widgets in super efficient dynamic synergistic agile lean-forward tiger team innovation labs (hadn't heard "cool kids organizations" until now) Please don't take this carnival barking seriously. No, PepeTheFrog thinks the (federal and also the federal acquisition) workforce would benefit form narrower, harsher, more discriminating selections. Intelligence or knowledge or competency tests with objective percentile cutoffs. Discrimination between the value of higher education degrees (throw online degree resumes in the trash, give more credit to the state school 3.5 GPA than the 3.5 GPA at PoDunk College of Teacher's Aides). Sure, sounds good. Like what? This is CEO-speak.
  9. @joel hoffman PepeTheFrog appreciates your answers and good faith discussion, thank you.
  10. http://www.wifcon.com/pd6_001.htm "In determining whether a modification triggers the competition requirements under CICA, we look to whether there is a material difference between the modified contract and the contract that was originally awarded" "Evidence...is found by examining changes in the type of work, costs, and performance period between the contract as awarded and as modified" "...consider whether the solicitation for the original contract adequately advised offerors of the potential for the types of changes found in the modification, and thus whether the modification would have materially changed the field of competition" "Thus a broad original competition may validate a broader range of later modifications without further bid procedures" PepeTheFrog thinks it will be similar to the above analysis, and other GAO cases, if a potential competitors butts in with a bid protest. PepeTheFrog doesn't have a direct quotation about this stance; it is intuited or deduced from the principles of how and especially why a scope analysis is performed. Form versus substance. The government can execute many forms, like JOFOC/J&A, or even naked modifications with no JOFOC/J&A or even government-produced scope determination, that can excuse any manner of anti-competitive practices. Those documents, actions, justifications, etc. will not avoid the substance of what the government is doing: circumventing competition (CICA) via sole-source awards of contracts (although cloaked as a modification). If the government could get away with this... ...if scope of the competition analyses resulting from competitors/protestors could exclude, protect, avoid, or ignore certain parts of the contract / solicitation / modifications as @joel hoffman has argued, in great detail, repeatedly, and then somehow also stated that nothing is excluded, protected, avoided, or ignored in the scope analysis (???) ...Then the government could get around competition (CICA) forever by piling on sole-source modifications for increasingly remote and unrelated types of work. At some point, PepeTheFrog thinks that the GAO or Court of Federal Claims would throw a flag on the field in response to a bid protest. If what PepeTheFrog thinks is wrong, then it's "turtles all the way down" and the government can supply an endless train of sole-source modifications for unrelated work using JOFOC/J&A and nobody can do anything about it. In one way, PepeTheFrog is approaching this from a reductio ad absurdum perspective. Interesting questions for @joel hoffman: (1) Is there any limit to the number and type of sole-source modifications, even with JOFOC/J&A, that can be added to a contract? Can an original competed contract for electrical repairs for a ship be modified, each time with a JOFOC/J&A, for air conditioning, pigeon delivery, tiger training, pistol supplies, ammunition crates, research and development on measles, nuclear bomb testing, and fifty other things down the road? Is that a possibility as long as the JOFOC/J&A is there? (2) Will the GAO or Court of Federal Claims ever "strike down" a JOFOC/J&A (such as one attached as part of a sole-source modification)? Like when the dazzling software company Palantir challenged the government using its inferior, in-house software (with a JOFOC/J&A) instead of Palantir's superior software? So for @joel hoffman the scope of the contract refers to the "boundaries of the nature, type and amount of work that is described or encompassed" in the entire contract. The scope of work refers to the "boundaries of the nature, type and amount of work that is described or encompassed in a statement of work and in other parts of the contract." Also, "The contract scope may include more than one scope of work if separate work is added for administrative convenience." "However every contract has a scope. The contract scope may include more than one scope of work..." Yes, semantics. PepeTheFrog does not like your use or understanding of the term "scope of work." PepeTheFrog thinks it is sloppy and confuses any discussion of "scope of the contract" and "scope of the competition." (3) Final question for @joel hoffman, using his term and understanding of "scope of work." If you add ten different "scopes of work" via ten different modifications to a single contract, is the "scope of the competition" ever changed by any or all of the ten different modifications?
  11. Show PepeTheFrog a bid protest where they performed a scope analysis using only a portion of the contract, and did not read and interpret the contract as a whole. If you can perform the scope analysis using only a portion of the contract, it renders the concept of scope meaningless. If you could expand the scope of the contract and scope of the competition via modification, with no limits, what is the result? Will competitors and courts and GAO allow this? Does it square with CICA? Not sure what you mean. Can you provide more detail? PepeTheFrog does not know the answer to this question about CAS applicability, but does know that in a challenge (protest) to the scope of a contract or scope of the competition, you cannot get away with shenanigans by pointing out different CLINs. The CLINs were awarded as part of the same contract. If you split those two CLINs into different contracts with different competitions, then it is relevant to discuss the two different contracts and their two different scope analyses.
  12. This changes everything! Stop the press! PepeTheFrog didn't realize you had 33 years of experience, @joel hoffman, because you've never brought up your experience or anecdotes or personal memory or "war stories in contracting," ever, not even once, on this forum. If you have, in fact, mentioned that stuff scores of times, PepeTheFrog must have missed it or forgotten it. The reason you are one of the best voices in this forum has nothing to do with your ego. You are respected because of the content and quality of your posts. This is incoherent. Now you're saying "separate scope of work" in a discussion about the "overall scope of the contract." Mind your terms of art. 33 years, remember! One of the best voices on the forum! (1) Tell us, what is a "scope of work"? Is that something like the "statement of work" or SOW? Or is it something like the "scope of the contract"? Or is it a sloppy combination of the two in your mind at worst and a sloppy usage of contracting terminology at best? You keep saying there is a separate "scope of work" (!!!)...do you mean a separate SOW or statement of work? If you mean SOW or statement of work, why on Earth would you say "scope of work" unless you don't realize the error in doing so? (2) Even if there are two statements of work, or three, or five, or ten, there is only one contract in this scenario, correct? That's what you said here: One contract, right? One contract, correct? You can come up with X, Y, Z, Q, and anything else you'd like in your own mind, but there is just one contract! You can't split up the single contract in your mind to avoid, protect, exclude, or ignore portions of the contract from the scope analysis. A scope analysis of a change to that one contract will not exclude any of the distinctions (X, Y, Z, X+Y, Q, original contract, modification) that you or the OP have invented in your minds. You keep making the same error, over and over again. Making the same error for 33 years into the future will not rectify it.
  13. PepeTheFrog respectfully disagrees. Your reasoning shows a faulty understanding of the concept of "scope" and how a scope analysis works. For example, you say "adding scope." That an imprecise phrase that confuses the discussion and spreads ignorance. You cannot "add scope" or "de-scope." If you could, you could subvert the Competition in Contracting Act whenever you want. You don't "add scope." You can make changes to the contract (including additions) that may or may not be within the "scope of the contract" or "scope of the competition." Those changes are all subject to a scope analysis. If the concept of "scope" itself could be expanded to allow for more and varied work via modification, don't you think other potential competitors, who lost or who did not submit proposals for the original solicitation, would be upset about that? Shouldn't they be upset? Don't you see how they're left out of the game by your faulty understanding of scope? You think you can just "stretch" the scope of the contract (or scope of the competition) to suit your needs, and that's where you incorrectly insert this phantom distinction between XY & Z. Read up on these concepts, especially "scope of the competition" (rather than "scope of the contract") and think about it more. You will agree with PepeTheFrog. Two distinct scopes? For what purpose? You're falling into the same error as the OP. If a protestor challenges the modification as being "out of scope," and therefore subject to competitive procedures for new work, then the scope analysis will include an examination of the contract, solicitation, modification(s), and even a signed JOFOC/J&A (even though the GAO/COFC will give it strong deference). Splitting XY and Z and Q is not relevant. Stating that XY is already "safe" from the analysis is not relevant. They will all be analyzed as part of the scope analysis. [deleted another example]
  14. PepeTheFrog thought it originated in an episode of The Simpson, Homer Simpson asking the devout Ned Flanders. But maybe they lifted it from Carlin? For the peanut gallery: It's not a paradox if God exists outside of the cosmos as an infinite Creator not subject to limitations of time, matter, energy, or the laws of the cosmos. It's only a "paradox" if god is a watchmaker within and subject to the laws of the cosmos. (So who made the watchmaker? Was there ever nothing?) The question assumes a materialist metaphysics. The OP assumes that a scope determination can or will be limited to what he wants it to be, for whatever reason, whether academic or real-life. In both cases, the questions betray something about the questioner.
  15. Scope analysis is highly fact-specific and case-by-case. The inquiry uses several factors and examines both the contract itself and the solicitation (scope of the contract versus scope of the competition, respectively). Your scenario has no specifics. This is a waste of time. Navel-gazing. The speculation in this comment thread will have no bearing on the actual scope analysis of any real-world situation this is based upon. The "Government's analysis" is the wrong way to frame this issue. Who cares what the government says? If there is a protest, it will be the GAO's or Court of Federal Claim's scope analysis, not the government's. The separation of XY and XYZ and the "assume this" nonsense is nonsense. The scope analysis can and will examine everything relevant. Nothing will be excluded because the protester or the government thinks that it should be excluded from examination. This thread would be more interesting if it asked other trivializing questions like Can God microwave a burrito so hot that He Himself cannot eat it? Was there ever nothing? Did something come from nothing? How many angels can fit on the head of a pin?
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