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About PepeTheFrog

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  1. PepeTheFrog


    Morrison & Foerster LLP published this paper on its website, with permission of Thomson Reuters: https://media2.mofo.com/documents/180700-mystery-data-rights.pdf http://govcon.mofo.com/intellectual-property/taking-the-mystery-out-of-data-rights/
  2. Ok, which one? (i) If you evaluated the +1 offer that was the second lowest price and technically acceptable (ii) If you use the "first LPTA discovered" method (iii) If you compare it with current or recent prices
  3. To the naysayers of the "first LPTA discovered" method of starting with the lowest price and awarding to the first offeror that is technically acceptable (without evaluating other offers)... Do your concerns vanish if the method includes evaluating at least two offerors? Find the LPTA, starting with the lowest price, and then stop when you found +1 offer that is also technically acceptable and higher in price? Personally, PepeTheFrog likes the easy and fast "first LPTA discovered" method, but maybe the marginal cost of evaluating just one more offer will satisfy supervisors who are sticklers or skeptical. Yes, that seems reasonable. Did you get adequate price competition? Yes, under the FAR 15.403-1(c) definition of "adequate price competition." There are three options and the contracting officer should be able to apply one of the three.
  4. PepeTheFrog

    Small Business Participation Plans

    Great question, C Culham. All that is required is "good faith" effort to comply with the plan. Because of that standard, the small business subcontracting plans don't have much "teeth" to enforce them or penalize the contractor for non-compliance. FAR 19.701 states "“Failure to make a good faith effort to comply with the subcontracting plan,” means willful or intentional failure to perform in accordance with the requirements of the subcontracting plan, or willful or intentional action to frustrate the plan." FAR 19.702(c) states the statutory requirement of imposing liquidated damages: "As stated in 15 U.S.C. 637(d)(8), any contractor or subcontractor failing to comply in good faith with the requirements of the subcontracting plan is in material breach of its contract. Further, 15 U.S.C. 637(d)(4)(f) directs that a contractor’s failure to make a good faith effort to comply with the requirements of the subcontracting plan shall result in the imposition of liquidated damages." It is extremely rare (how many times has it ever happened?) for a contractor to get successfully slapped with liquidated damages for failure to make a good faith effort to comply with the subcontracting plan. Many of these plans include boilerplate language about activities that will qualify as good faith efforts. The contractor has to engage in those activities, but the contractor doesn't necessarily have to meet the concrete, percentage goals.
  5. PepeTheFrog

    Small Business Participation Plans

    joel hoffman, PepeTheFrog does not know. It seems to be something Don Mansfield is interested in.
  6. PepeTheFrog

    Small Business Participation Plans

    This is an interesting question because PepeTheFrog has seen presentation slides and heard presentations from DOD federal frogs who say incorporating the small business participation plan is a "best practice." In other words, they evangelize the entire DOD contracting workforce to do this. They are adamant that this is a good idea and everyone should do it. These evangelizing DOD federal frogs are typically the small business or SADBU specialists (frogs that mostly deal with the DD2579 and meeting with small businesses, for instance), not contracting officers. @Don Mansfield Have you ever confronted a small business or SADBU frog about this potential conflict with the Regulatory Flexibility Act or other statutes? If so, what do they say? Have you ever brought this up to any frogs in Defense Pricing and Contracting (formerly DPAP)? If so, what do they say?
  7. For Vern, @NenaLenz, and any others: Would you charge a client for reading a law firm's blog? Would you charge a client for reading any website other than Westlaw or LexisNexis or an official website for government records? Would you charge a client for speaking to a trusted and knowledgeable colleague on the phone about a research topic? PepeTheFrog thinks its reasonable to charge a client for speaking to @Vern Edwards or anyone at his level about a research topic.
  8. The FAR is applicable to federal employees conducting acquisition. The FAR is only relevant to federal contractors as far as a FAR clause or section of the FAR is included or incorporated into the contract. If your (sub)contract states that you are supposed to flow down a clause in your subcontracts, then that is what your (sub)contract requires. Your questions are more about the risk for your company and the risk for the prime contractor. You are focusing on compliance with the FAR, but the FAR does not apply to your company. It sounds like (a) the government failed to include appropriate clauses in the prime contractor, (b) the prime contractor failed to include appropriate flowdown clauses in your subcontract, or (c) some combination of (b) or (c). These are problems for the government and the prime contractor. The government can't really do anything to you. The government doesn't have a contract with you. The prime contractor might try to make its problems your problems.
  9. It sounds like you have a subcontract with a company that has a prime contract with a federal agency. Your subcontract is between your company and the other company. Your company does not have privity of contract (a contractual relationship) with the federal agency. You are not obligated to flow down any FAR clauses unless your subcontract says that you are obligated to flow down any FAR clauses. What you do as a matter of supply chain risk or "keeping your prime contractor happy" (like correcting its mistakes and omissions) is another story.
  10. As many lament, contracting duties include plenty of administrative, clerical, data entry, repetitive, boring, or routine tasks. Copy these characters from this file, put them in this box, and save it to this file. Check this website, print a PDF file, and save that document into the contract file. Pull this data from these files, enter it into this system, and submit it to this other system. Pull the following information from the contract file, include it in this pro forma letter, and send it to the contractor on day X. Stop the madness! There's gotta be a better way! 1. Do any federal contracting shops use automated software tools to reduce this drudgery and speed up the process? This could include special add-on software programs, templates with auto-fills, templates that automatically pull information from other systems. Consider as broad a definition as possible-- anything that can be purchased or copied or replicated that make (boring, repetitive, routine) contracting tasks easier. 2. Do any private sector contracting shops use tools like this that could be "ported" over or converted for federal 1102 usage? 3. What are these tools? What do they do? Are they commercial or developed "in house"? 4. What administrative, clerical, data entry, repetitive, boring, or routine tasks do you (a) want to see automated and (b) think can be easily automated with such tools? Examples for #3 Software that automatically pulls data from the contracting writing system for standard letters or documents, e.g. COR appointments, notifications of intent to exercise options, determinations and findings Software that automatically checks the status of a potential contractor in SAM.gov and creates a PDF file confirming that status
  11. PepeTheFrog is an old frog and has not looked into the program since the major changes during the Obama Administration, sorry Milkenheim.
  12. PepeTheFrog


    one of the best military and human capital quotations, ever
  13. As usual, @Don Mansfield and @Vern Edwards are spot-on. Subcontractors, Don't rely on the federal government to get primes to honor their promises, subcontracts, "assurances," or anything else which are made to subcontractors. There are some laws and regulations meant to help you, but don't rely on them. There's a privity of contract problem that the federal government has not and probably will not be able to solve. The way to get primes to do what they said they would do is by... ...contracts, subcontracts, teaming arrangements, workshare agreements, etc. Don't outsource your legal and contracting duties to Uncle Sam. He's got bad past performance and horrible references in those areas. Don't be one of those subcontractors that gets screwed over. Pay for excellent legal and contractual representation.
  14. Proposals are how potential prime contractors "promise" things to the government. Your concern is what the prime contractor "promised" to you, the subcontractor. Do you have an enforceable teaming agreement with a statement of work? If so, enforce it. If not, and you're relying on the promises the prime contractor made to the government, this won't end well for you. Remember that you don't have privity of contract with the government. The prime's contract or promises to the government are between the prime and the government. Lesson: Always get an enforceable and specific teaming agreement or contract. Pay an attorney to make sure it has "teeth." Don't rely on the government to bully prime contractors into giving you subcontracts. That's not a long-term strategy.
  15. PepeTheFrog

    Master Degrees

    The return on investment of paying a "resume expert" who knows the government contracts industry is much higher than any degree. Paying $500 or $1000 to increase your lifetime earnings potential is a good idea. Consider paying someone to improve your resume and translate what you've done into something recruiters and hiring managers can digest. At a minimum, find job postings/descriptions and individual resumes that match who you want to be. Think three or four jobs ahead, i.e. "What will this next position add to my skill set? What are intermediate steps to get to my goal?" Degrees, in general, aren't valuable because of what you allegedly learned. They're valuable as a signalling and sorting mechanism. Think about that. Some of those fake degrees you mentioned signal that the person is serious about government contracts, but isn't intelligent or connected enough to know better. Maybe they can get you into a mid-level contracts manager position, but not the more prestigious positions. The MBA and lawyer crowd will eat your lunch in that tier. Yes, at the higher levels, they will. @LucyQ Contracts positions are all over the map as far as titles, pay, responsibilities, seniority. What is your desired salary range? Do you expect subordinate employees? What size company (revenue)? Those factors make a difference as to what your experience and credentials should be.