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Everything posted by PepeTheFrog

  1. Thank you, @joel hoffman. PepeTheFrog appreciates it, and has learned a great deal from your full response.
  2. joel hoffman, please provide PepeTheFrog the same patience and respect PepeTheFrog has afforded you. This is an important topic and is relevant to anyone who deals with cost-reimbursement contracts. Inquiring minds need to know! You made these assertions, quoted above. Don Mansfield and others asked you a specific question whose answer potentially falsifies your assertions. That question is: You refused to answer the question, several times, in several different ways. One potential explanation is that, if you answer accurately and honestly, it shows that you did not consider a key section of the FAR on this topic, namely FAR 31.101, which allows contracting officers to deviate from the cost principles with advance approval of the agency head or designee. PepeTheFrog does not know of a special exception to this rule (that you can deviate from cost principles) pertaining to your income taxes example at FAR 31.205-41(b)(1). You seem to think there is a special exception to this rule. If so, where is this special exception to FAR 31.101 (deviating from cost principles) regarding FAR 31.205-41(b)(1) (income taxes)? Alternatively, you seem to think that your personal opinion outweighs the plain language of the Federal Acquisition Regulation, when properly read "as a whole" and harmonized with FAR 1.602-1(b) and FAR 31.101. If so, why do you think that your personal opinion outweighs the plain language of the FAR? Alternatively, maybe you are just not capable of acknowledging when you have a "learning moment." But those "learning moments" help both you and the entire Wifcon forum. If there is some other explanation, PepeTheFrog is waiting to hear it. This is directly relevant to the award and administration of cost-reimbursement contracts, and you are a valued source of knowledge in this forum. PepeTheFrog thanks you in advance for your reciprocal patience.
  3. joel hoffman, is this all some elaborate hoax? You still have not answered the question! It's almost like you're dodging the question because your answer will cause you some discomfort. Could that be the reason?
  4. No. PepeTheFrog's understanding is that the contracting officer can seek an individual or class deviation from the cost principles, including those at FAR 31.205-41(b)(1). That's one reason why PepeTheFrog is curious to hear any else's opinion or analysis, like joel hoffman's. FAR 31.101, Objectives, states: "In recognition of differing organizational characteristics, the cost principles and procedures in the succeeding subparts are grouped basically by organizational type; e.g., commercial concerns and educational institutions. The overall objective is to provide that, to the extent practicable, all organizations of similar types doing similar work will follow the same cost principles and procedures. To achieve this uniformity, individual deviations concerning cost principles require advance approval of the agency head or designee. Class deviations for the civilian agencies require advance approval of the Civilian Agency Acquisition Council. Class deviations for the National Aeronautics and Space Administration require advance approval of the Deputy Chief Acquisition Officer. Class deviations for the Department of Defense require advance approval of the Director of Defense Procurement, Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics."
  5. PepeTheFrog was not asked the question, but is willing to answer Don Mansfield. No, a contracting officer is not prohibited from deviating from the cost principles, provided they complied with FAR 1.602-1(b). Yes, it is possible for a contracting officer to deviate from the cost principles while also complying with FAR 1.602-1(b).
  6. joel hoffman, the bystanders are patiently and eagerly waiting for your answer about the specific question. The answer might tease out a rule or principle-- the guiding light to "[fit] every circumstance." That's how someone can learn. Your specific example is not helpful for learning, it's just a guarded example for you to dodge a reasonable question that might lead to a learning moment. Can a contracting officer comply with FAR 1.602-1(b) and also deviate from the cost principles? What do you think and why?
  7. This is like that religious story where the rabbi argues with God and supposedly wins the argument.
  8. @Lionel Hutz Well-stated. You are someone who has the capability to think and understand contracts. Some things cannot be taught.
  9. It ends when you have adequately described what you're doing and why. Citing only one modification reason ("authority") for several different changes, each of which relies on a different reason ("authority") is not adequate. You might cite 10 authorities if you have an especially complicated modification that draws on the processes or rights or procedures outlined in 10 different FAR clauses. That would be an extreme example, but in such a case, wouldn't it be helpful to explain how those 10 different FAR clauses relate to each of the 10 changes in the modification? Like PepeTheFrog said before, using the (inherent, systemic, design) limitations of FPDS (e.g. forcing you to input only one modification authority) as a "guide" or a "hint" on how to document or explain the modification is not a good idea. Do you understand why? Here is another translation: FPDS is not as important as the contract or modification itself. FPDS does not (cannot) record all aspects of the contract or modification. It has limitations. It asks for certain data, and does not ask for other data. It asks for certain data in a predefined format, in many cases. By all means, continue to use a poorly designed system that is considered to be absolute garbage in terms of user interface and accuracy of data. Just don't expect intelligent colleagues to criticize you for it. This kind of thing is why some people view contracting professionals as administrative assistants, clerical flunkies, paper-pushers, and glorified secretaries. PepeTheFrog encourages you to think this through, again. Sure, follow FPDS procedure. Pick one modification for FPDS. Who cares? FPDS is "garbage in, garbage out." But forget about FPDS. What about the contract modification itself? PepeTheFrog finds it difficult to understand how someone could prefer "picking one" explanation ("authority") for a multi-prong modification with several different changes from several different clauses. It saves some typing time. It saves you the trouble of thinking. Best of all, it complies with FPDS! @coolarmydude and anyone else who thinks you should only cite one modification reason ("authority"), please tell PepeTheFrog which single authority to cite for this modification (forget about FPDS, forget about even Block 13, just tell PepeTheFrog how you would explain this modification in the document itself, or in an accompanying memo using a single authority): Incrementally fund $500,000. Exercise option period 3. Change the security classification form. Change the statement of work. Hint: There are four changes. Each of the four changes corresponds to a well-known FAR clause. Each of the four changes can be accomplished unilaterally. (PepeTheFrog would cite FAR 52.232-22 (Limitation of Funds), FAR 52.217-9 (Option to Extend the Term of the Contract), FAR 52.204-2 (Security Requirements), FAR 52.243-X (Changes), respectively.)
  10. That's just, like, your opinion, man. You haven't provided any good reason why only one modification authority can or should be cited. Can you provide any valid or persuasive source that states that each modification of a federal contract should cite only one modification for its authority? Have you considered the ridiculousness of this position, given that many single contract modifications accomplish several different changes and are therefore based on more than one single reason (authority)? It seems like you allow the limitations of FPDS to significantly affect the way you conduct procurement. That is a mistake. The FPDS feature implies that FPDS was designed that way, and not much else. Divining any wisdom or knowledge about contracting from the arbitrary software or user interface design of FPDS is a mistake. FPDS is a reporting and data warehousing system; a system of record. Think it through. There are modifications that are clearly based on more than one authority. This isn't a complicated idea or a controversial statement. Your solution is to ignore the other authorities and simply pick one out of a hat? Or pick the authority that provides the most flexibility? Examples: (a) exercise an option and also change the SOW (b) incremental funding and also changes to the security requirements (c) incremental funding and period of performance extension (d) incremental funding and period of performance extension and change to the SOW and change to the security requirements Under your preference, which is not supported by anything convincing, the contracting officer should simply pick one of the authorities and ignore the others. That's not helpful or illuminating to others who review the file.
  11. Interesting question. 1. What would you cite instead in the situation? 2. What are your thoughts on contracting officers citing FAR 43.103(a) or 42.103(b)? That's related to your question. Those two FAR citations are descriptive. They describe unilateral and bilateral modification. Those two FAR citations should not even be found within the contract, and are usually not found within the contract. Yet PepeTheFrog sees them cited as the "authority" on many modifications. 3. What do you think about citing "mutual agreement of the parties" as the "authority"? That also seems hollow or superfluous. Aren't the two parties memorializing their mutual agreement by their respective signatures?
  12. C Culham, PepeTheFrog thought the text after your quotation, which you did not quote, made it clear that the "risk factor" referred to bid protests: Allow PepeTheFrog to elaborate: The incumbent contractor is not a risk factor for a bid protest triggered by providing sole-source work via modification. The incumbent contractor will not protest the award of work to itself. Contractors like to receive new work. It's generally good for business. They may, however, refuse to perform the work if the money isn't adequate or if the work is not appealing for some reason. That is a type of risk, but not bid protest risk. In such a case, the incumbent contractor may refuse to perform the work and say it is a cardinal change, out of scope, breach of contract. But there will be no bid protest from the incumbent contractor. Bid protest risk comes from sources other than the incumbent contractor. Bid protest risk comes from the other competitors, who are upset that the government awarded "new work" (out of scope work) on a sole source basis via modification.
  13. All of it. Think beyond your conception of the word "scope." You're thinking about a section in a contract or solicitation that you call "scope." That's not going to save you. You can't just use magic words. Don't think of your "scope" section. Instead, think about the scope analysis, which is case-by-case, and relies on specific facts. You can write the best "scope" section in the world, and the GAO or some other analyst could find that whatever actions you took were not within the scope of the contract and/or competition. Your "scope" section is helpful, but the scope analysis will consider much more than your "scope" section of magic words. Think substance over form.
  14. If you have a "scope of the contract" problem, the contractor may or may not comply. Contractors generally like more money for more work. The incumbent contractor is not your risk factor. The other contractors or potential offerors are the risk. If they find out that the government modified a contract for work that could be found to be out of scope, and therefore a cardinal change, they might have a valid basis for the protest. Once they protest, that's where the "scope of the competition" analysis by GAO comes in. The other contractors could gain GAO jurisdiction for a bid protest by saying (a) the modification was new work, not within scope; (b) the new work was not competed, and was instead effectuated via sole-source, albeit in a modification; (c) there was no J&A (or the J&A was defective or inadequate-- although it's tough to fight a J&A) or any other reason to go sole-source; and (d) therefore, the modification was a violation of the Competition in Contracting Act, which requires full and open competition unless there is an exception, etc.
  15. For ammunition with your battles with supervisors, consider the same factors that the GAO considers. Is this modification reasonably contemplated by the competition (solicitation, scope of the competition) and the contract itself (scope of the contract)? Is there a material difference between what was contemplated and the actual modification? Did the solicitation adequately advise offerors of the potential for this change? Could this modification be reasonably anticipated under the Changes clause or some other language in the contract? Each scope analysis is highly fact-specific. Factors: materiality, type of work (services, supply...time and PoP changes matter much more to a services contract), performance period, actual difference in price, contract type, requirement, solicitation, contract, past procurements Here's the GAO copy pasta they use, over and over again: “…consider whether the solicitation for the original contract adequately advised offerors of the potential for the type 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.”
  16. apsofacto, to accomplish your battle goals, you should also consider crafting language in the solicitation. The GAO will consider both the "scope of the contract" and the "scope of the competition." Scope of the contract is familiar to most. Scope of the competition is the ignored factor which deals with the solicitation and what is communicates to potential offerors. A more narrow and precise solicitation gives less wiggle room for modifications. A broad and sweeping solicitation, that describes a very large potential area of work (scope) gives more wiggle room for modifications. So, consider using your tactics in the solicitation, not just the contract.
  17. You have a good point. PepeTheFrog has heard that the government intends to consolidate FBO into SAM.gov. It does seem contrary to intent to have so many other websites and sources for government opportunities. Perhaps the new Administrator of OFPP can tackle this problem. President Trump nominated Michael Wooten for Administrator of OFPP recently.
  18. You have a subcontract, a contract between your company and another company. Contract A. The other company has a prime contract with the government. Contract B. Don't look in the FAR for help with Contract A. The FAR does not apply to Contract A. You need to look at the contents of Contract A, no matter what Contract B or anything other contract says.
  19. Why? The IDIQ was established, presumably, using FAR Part 15 procedures, thus satisfying the full and open competition requirements of the Competition in Contracting Act. Why would you go through that process, again, and again, and again, each time you evaluate and award a task order (TO) pursuant to the IDIQ? Why wouldn't you use the procedures for evaluating and awarding task orders found in FAR 16.505? Those FAR 16.505 procedures have a much lower standard of competition - fair opportunity. Why would you subject yourself to FAR Part 15 instead of the fair opportunity requirements of FAR 16.505? Does any of this make sense?
  20. 1. Your description of what your attorney supposedly said is a little bit off the mark, but this sounds like someone imprecisely describing the Christian doctrine. You can search that term. Keep in mind that the Christian doctrine applies to the relationship between the prime contractor and the government. If you are the subcontractor, it's not directly relevant to your situation with the prime contractor. 2. You're right to question how all of the different versions of FAR clauses dealing with equitable adjustments could possibly apply to the same contract. That's nonsense. There are different versions of similar FAR clauses to apply to different contracts. It would be incoherent to apply all of the different versions of similar FAR clauses to a single contract. Again, this is a concern for the prime contract with the government. The contracting officer for the federal government is supposed to select the proper clause(s) to include the prime contract with the prime contractor. 3. As a subcontractor, your concern is the contract between the subcontractor and the prime contractor. Your problems and disputes will be adjudicated based on the content of the "subcontract," not the "prime contract." The government may have failed to use the "right" clauses in the prime contract. The prime contractor or subcontractor may have failed to use the "right" clauses in the subcontract. Examine the subcontract and determine if there is a clause or any language that controls your situation. This is generally how contracts work. You read the contract to determine if there is any guidance for the current situation. Forget about the government for a little while. Sit down and read your "subcontract" and try to find the answer. 4. The plural of a Federal Acquisition Regulation (FAR) clause is FAR clauses. The singular FAR references the entire set of regulations. Writing "FARS" or "one but not another FAR" discredits you and will confuse your peers.
  21. forget about improving your COR's brain you can't fix stupid in federal government employment, you can't even fire stupid remove stupid people from the process
  22. Following in the footsteps of giants like William Faulkner, Henry James, James Joyce, and Virginia Woolf.
  23. The idea is that the success of the BD guy is not necessarily tied to the success of the company. They are related, but if the incentives are wrong, the BD guy can have "success" and commissions while the company fails. It happens. The BD guy might bring in the wrong type of work (high risk, low profit, cuts off other pipelines due to conflicts). The larger point is that it's important to create incentives and limitations for the BD guys (or sales or marketing). The issue you brought up seems to be such a case-- where the BD guys need different limitations or incentives, and might cause the company harm.
  24. Some of the Pentagon re-organization details came straight out of the Section 809 Panel recommendations. That's Executive Branch activity, not legislation, but it was "accepted" (or maybe there was collusion).
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