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FAR-flung 1102

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  1. Vern. Thank you for the history, it's good to learn more about where we've been. I am trying both to lift where I stand and orient to the horizon and not just the immediate surroundings. It's relational contracting that I'm getting ready for.
  2. Govt2310, The advice I give folks in setting up a performance based service contract includes the need to create a summary in the Performance Based Work Statement of the contract's most important performance objectives. We call this a Service Summary. Our performance objectives are snippets of the PWS pulled from the most important shall statements in the PWS. In my world we try not to complicate things and typically try to limit the Service Summary to twelve performance objectives...usually much less. This Service Summary and it is set up as a matrix or table within the PWS and is also duplicated in the Government's Quality Assurance Surveillance Plan, where it does get one additional column not placed in the PWS service summary: a listing of the methods of surveillance applicable to each service summary items. The QASP is kept out of the contract so that the Government may change the method and intensity of surveillance in light of the contractors performance; when shared with the contractor this information in the QASP itself can be an incentive to contractor performance. In the Service Summary, for each performance objective, we establish a minimum acceptable threshold value for performance which we call the Performance Threshold. The Performance Threshold is based upon some sort of metric, occurrence or event. Our best practice is to specify at least one service service summary item falling in each applicable rating area (Quality, Schedule, etc) of the Contractor Performance Assessment Reporting System (CPARS) and carefully specify a range of several rating criteria for each service summary item. In our monthly/quarterly surveillances we like to use as many as practicable of the five rating criteria used in the CPARS Annual Evaluation (Exceptional, Very Good, Satisfactory, Marginal, and Unsatisfactory). Some service summary items might be compliance or safety items which only lend themselves to Satisfactory/Unsatisfactory rating criteria, but we typically have a number of service summary items for which we can use all five of the rating criteria. The Satisfactory rating criteria itself is anchored to the Performance Threshold described above and the other rating criteria are set according to measured performance levels above and below the Satisfactory levels. Sometimes we can't set ratings for all five, so we may choose just three or four rating criteria for a particular service summary items. The idea is to give the contractor a non-monetary incentive toward greater contract performance than just recognizing a Satisfactory levels of performance. Without implementing this practice Government folks are usually left with a choice of giving Satisfactory/Unsatisfactory Ratings each surveillance period (typically monthly or quarterly), which after a year of performance can leave little basis from which to give anything other than a Satisfactory or Unsatisfactory CPAR rating for contractor performance We do surveil performance outside of that specified in the service summary and when doing Annual CPARS Evaluations we do use and don't ignore the CPAR rating descriptions and notes in the tables at FAR 42.1503 in connection with ratings given. These procedures we apply to services and not Systems contracts, Construction or Research and Development...do help folks get organized and thinking about facets of contractor performance that the Government values and for which the contractor can get recognized without necessarily creating monetary incentives.
  3. Thank you, Vern in addition to Joel...I kinda see now how mighty a lion that is to tame!
  4. On the contrary, Joel, thank you, and please go on if you have more of this...The chance to examine these examples second hand all at one sitting many years later is quite enlightening!
  5. If DoD, see also https://www.acq.osd.mil/dpap/policy/policyvault/USA005039-13-DPAP.pdf
  6. I'm watching to see what will become of the Open DFARS Case 2019-D034, Preference for Commercial Construction Services, which has not had a status update since April 2021.
  7. GABE, When is notice not required by FAR 5.101?
  8. Krimz, Things might be a little easier if it's the case that both are Defense Agencies (within DoD), so please let us know if that is the case...
  9. Thanks All for hitting the target very well. Vern, you for prompt me to renew discovery of that SOW preparation guide. Not too long ago I had the same concern that formerfed brought up (needless overlap between work statement and CDRL) and found that SOW preparation guide by serendipity. The guide did help me with that issue...yet it left me to wonder why I had not seen it years earlier in training or topical resources on in some other breadcrumb trail. When I checked out the guide I was happy to see that earlier revisions are also available, so at least through comparison I can learn a little of the history of things. I'll also check out the other links. Joel, you nailed an immediate concern...the need to clearly and simply establish the performing party. As for elimination of shall statements, I think I may have some unlearning and unwinding to do.
  10. Joel, would a list under the heading Contractor Duties, each of them in a numbered paragraph (and maybe with sub-paragraphs as well), all using the active voice and no shall statements, fit what you are describing?
  11. Thanks. So, I just now got an online version of Bryan Garner's Legal Writing in Plain English, Second Edition. It has an entire section titled, "Delete every shall."...it comes with exercises, too.
  12. I no longer think that. You're right, I had not been going with FAR definitions...and I've been taught in the past to check on that to! Thank you. I'll do my homework better. That's a quick lesson...
  13. I really like the effort to do the Government's business in plain language, but find myself foot dragging rather heavily on a major tenet: The historical Government use of "shall" vs the plain language use of "must". Please first see https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/ I've reviewed quite a few draft work statements over a number of years. It's easy to spot and deal with a lot of ambiguous wording up front. I won't say anything more about that. My concern is with the ambiguities which can emerge later during performance as unforeseen circumstances arise (to be clear, I'll call these, latent ambiguities). I'm of the opinion that widespread replacement of the term "shall" ("the contractor shall") with the the command "must" ("the contractor must") in the spirit of implementing plain language in work statements, would have a downside not touched upon in the linked article. I think that using "must" in place of "shall" in work statements would run a considerable risk of prompting thoughtless or given human nature, even sometimes malicious, compliance on the part of the contractor in situations where latent ambiguities arise. Let's contrast the two approaches: First, let's consider the current commonplace contracting environment with the contractor performing under a "shall" statement. When the contractor encounters, due to previously unforeseen circumstances, a latent ambiguity, my view is that the contractor is more inclined to turn to the Government for clarity before performance and this can more quickly result in simple resolution of a latent ambiguity. In fact, the contractor might even see foresee the circumstance earlier than the Government, for example when reading through the work statement with the Government at a Post Award/Pre-Performance Conference. Next, let's consider a contracting environment where the government routinely prepares a statement of work with many, perhaps hundreds, of "the contractor must" statements within the statement of work. By using "must" the Government is being both more definite (though not necessarily correctly so) and less open to other considerations. A contractor faced with the same latent ambiguity may see (indeed may actually have) less need to seek clarity from the Government before performance. The full result of the latent ambiguity will surface only after performance and given the conventions of contract interpretation may be the Government's responsibility to bear. When iterated for years over many performances on many contracts, I think the cumulative effect of a decreasing use of "shall" and an accompanying increased use of "must" would be significant and not in a good way. The risk of harm from latent ambiguities seems to me to be both greater and more common than the incremental benefit from any amount of Government wins before deliberative bodies that could reasonably come from universal adoption of "must" over the current use of "shall". Maybe the chief benefit of "must" over "shall" is an avoidance of conflict that I have yet to see and understand. If any of you see that as the case, then please help me see how it is so. Otherwise, it would seem that the linked article should really be counter-balanced by the kind of marginal analysis I've hinted at in this paragraph. Even a little practice in this field will quickly show us that it is hard when preparing work statements to adequately cover all situations that could arise, whether in the fog of war or other emergent conditions. So, latent ambiguities in a work statement are both a hazard and a fact of life. Prevention measures against latent ambiguities in a work statement (by way of spending additional time to consider more careful, particular language, yet avoid pedantry) will have a modicum of success, but will also serve as a time sink, a cost to be paid now toward an uncertain benefit to be paid back later in greater or lesser amounts, and as such would not and should not be a 100% solution. if we're efficient and smart we'll always recognize this ever-present tradeoff...and so we don't want to just assume away the harm from latent ambiguities. It will always be with us to one degree or another, to serve as a counterpoint to any agressive use of "must" language in the work statements written by the Government. i understand that what I have stated is largely notional and I haven't provided evidence, but what else is weak with this thinking? We really are faced with this decision and, unless i've missed something, we aren't likely to get meaningful data for a while... What will you decide to do? Why?
  14. Guardian, if your agency's specific statutory authorization is not a help, you may want to check out what the DoD Financial Management Regulation (FMR) has to say about miscellaneous advance payments. It includes the exception that you have mentioned for subscriptions to periodicals, among other things. You'll find it in Vol 10 chapter 4. at https://comptroller.defense.gov/Portals/45/documents/fmr/current/10/10_04.pdf.
  15. A few ideas. Read, think and think again. Seriously consider volunteering for the assignments that others don't want. Learn something (strike that, learn everything) well enough to share it with others. Look for opportunities to do so. You'll gain more than one skill if you do that right. Repeat often. Pick a special skill to focus on and do that better and more reliably than anyone else. For example, for a newcomer taking exceptional notes and minutes can come in handy. Agreeable to who is running a meeting with a contractor, be the note taker... Arrange to distribute a draft for correction and follow up with a final version. Pay careful attention to details like dates and actions for follow up from each party. Find out whom to in include in the Distri (contractor?). Record everything you learn now as a newbie so you can be a help to the next newcomer. Do your homework...before asking a question look for answers...you may find what you are looking for or it may help you ask a better question. See here:
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