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FAR-flung 1102
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Posts posted by FAR-flung 1102
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tlr56,
Sounds like this may be a service...it's maintenance after all, so on the off chance that the header indicating supplies is not the whole story, I will venture. If services, you may want to carefully read the inserted language of the option clause. Depending upon the language used, it is possible (perhaps some might say even likely) that the time period within which the option may be properly exercised extends somewhat beyond the performance PoP.
See FAR 17.204 (d) "The period may extend beyond the contract completion date for service contracts. This is necessary for situations when exercise of the option would result in the obligation of funds that are not available in the fiscal year in which the contract would otherwise be completed."
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4 hours ago, ji20874 said:
I think a stand-alone platform is overkill -- an easier and adequate approach in my mind would be a simple certificate from sellers on their own platforms that they accept the GPC -- government cardholders could search the internet for the products they need and make purchases from sellers who advertise the certification -- think of a government label approximating kosher or halal.
For the certificate or a pre-approval of some kind to be effective, it would need to involve a reliable assessment of the vendor's current terms and not just indicate their willingness to accept GPC.
Online vendors not willing to accept GPC is one thing (in my experience there are a few of those vendors).
It's another thing to have an online vendor whose routine practices involve terms that are contrary to those a GPC holder can accept while staying inside the bounds of federal law & GPC rules and regulations (in my experience there are a lot of these vendors).
Absent some sort of pre-approval or implementation of a portal, the issue of unacceptable terms can easily get missed or misunderstood by the only Government personnel in a position to spot it before the purchase happens: a GPC cardholder or their approving official.
And even when spotted ahead of time, resolution may not be easy. Online vendors would probably have little ability or incentive to change their business system accommodate the unique needs of a party wanting only one or a few purchases.
I've seen one such GPC issue elevated all the way to an agency Chief of Procurement who engaged with the company head before concluding that source could not be used.
In 2015 GSA a GSA identified 15 types of terms commonly used by vendors in their agreements that the federal Government cannot agree to...I've linked to it recently in another thread.
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You might be surprised at how many online vendors would have the cardholder commit to terms and conditions that are inconsistent with use of GPC (as a method of purchase). This should solve that.
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1 hour ago, Voyager said:
Agencies do have to decide if they trust a standard user agreement to meet the Government's requirements. I have read a little about the law around standard user agreements, enough to know the basics that the general public can sign them without reading them, trusting that anything a court determines unreasonable in them should be granted to the user as relief. I doubt that's good enough for some requirements owners, if it even applies to federal commercial buys.
GSA created their own order of precedence see MV-15-03 Supplement #1 (sorry, I could not get their link to copy).
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19 hours ago, Vern Edwards said:
Readers must apply some critical thinking to this kind of speechifying.
We need more substantive writing in Contract Management, please, and less rah-rah malarky.
Interesting.
Sorry, I can't reach the article to read it so maybe I should just keep my words to myself...but I have heard Gen Holt speak in person and been paying attention to him since 2018. So I'll share a few thoughts.
Even if the sense of it did not come across to you, I know that there is substance behind the parts you've quoted...an impressive amount of substance, actually.
In addition to the examples Jamaal cited let me mention some of the more memorable ideas or practices, some realized and some which proved only aspirational aims...
Written instructions to address use of ordering procedures to avoid more formal and unnecessary practices,
A meaningful emphasis on creation and use of tools (not rules) to meet mission requirements.
Tackling the urgent national need for respirators at the beginning of COVID crisis,
Confronting a vendor model based more in sustainment than up front costs (my characterization not his), incentivizing a different profit model for industry.
Locally re-programming funds freed up for better use
Contracting personnel turning to peers as mission partners instead standing apart as in the traditional view of "customers", inspiring mission focused business leaders to be more than they currently are.
You might see hints of some of the above in the article...I do in the parts you referred to.
Gen. Holt worked for a boss (Will Roper) who wanted us to increase virtualization of prototyping (raising formula one race cars as an example...there is no physical prototype of the race car and every part is virtualized) and pursue iterative development to change the industry incentive from "winner take all" efforts (and massive and expensive sustainment costs) to something smaller, sooner & faster (iteratively) with improvements in each new generation. He cited the 100 series of jets as a model. That addresses your emphasis on competing with near peers.
The tenure of both Gen Holt & Will Roper leave me with the distinct impression from their words and actions that they each gave us quite a bit, but both still had more to offer than we at the time had room to receive.
I don't think they opened the aperture all the way, but nonetheless they had folks sprinting.
The above are just my personal impressions, not based on anything representative or official and as indicated above not having read the article.
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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.
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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.
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7 hours ago, Vern Edwards said:
How does one negotiate in a competitive arena?
Thank you, Vern in addition to Joel...I kinda see now how mighty a lion that is to tame!
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11 hours ago, joel hoffman said:
I won’t bore you any further with specific project examples due to lack of understanding or application of the FAR Part 15 rewrite, but there are many for both non-price and price.
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!
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26 minutes ago, Vern Edwards said:
In any case, after more than 20 years the policy makers have not seen fit to clear things up, and agencies will do as they like.
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.
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24 minutes ago, GABE said:
i) The acquisition does not exceed the simplified acquisition threshold;
this seems clear. What am I missing?
GABE,
When is notice not required by FAR 5.101?
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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...
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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.
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19 minutes ago, joel hoffman said:
I edited several model RFP’s , including each spec section, that the USACE was using Corpswide, from the passive to active voice and deleted wording like the contractor shall, the contractor must, shall be done, shall be done by the contractor, etc. We shortened each of the models by many tens of pages and it was much more readable.
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?
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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.
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15 minutes ago, Vern Edwards said:
Emphasis added.
Allow me to point out that FAR 2.201 requires insertion of the clause at FAR 52.202-1, Definitions (JUN 2020), in all solicitations and contracts valued at more than the simplified acquisition threshold. That clause says:
So the definitions in FAR 2.101 are contractually binding in accordance with the terms of all contracts that include the definitions clause.
Now look up the words "must" and "shall" in FAR 2.101 and tell us why you think "must" is more definite than "shall."
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...
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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?
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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.
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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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I have a bone to pick for some of the sharp tools that might have been included, but instead are lacking in the typical assortment given to the Contracting Officer when they deal with nonconforming services.
As I understand it, the 2-in-1 Invoice most often used in WAWF (Wide Area Workflow) for FFP Services, does not allow for partial acceptance (it's all or nothing) on invoiced quantities. And often the Unit of Issue modeled in a template or routinely used for the sake of convenience in a line item is "Month" instead of something that might allow for acceptance of lesser quantities such as "sq. feet" or "acres" to give just two examples. I've seen a procedure to make a Govt estimate ahead of time based on such useful measures, but still accompanied by a suggested CLIN structure that specified "month" as the unit of measure...go figure?
Let's think it over. What kind of signal are we sending? What kind lessons might be learned by the contractor if the Contracting Officer does not have the readiest tools available to deal promptly and effectively with nonconforming services which fail inspection and for which reperformance is not possible?
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If Govt was of the opinion that discussions are most likely, but not most desirous, could the Govt truthfully include "the Govt intends to conduct discussions" in the solicitation?
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Thank you, Vern, the history prior to DCMA is almost all news to me.
Knowing this backstory will help when I'm facing divergent views on a need for COR Appointment in DoD where particular facts about a requirement show it might be wise to appoint a COR, but is it's still not required by DFARS PGI 201.602-2(d)(v) (a) or (b), for example a supply contract without reimburseable line items.
Exceedance of IDIQ Capacity with Modification to Existing Task Order
in Contract Administration
Posted
I think the answer to that (whichever it is) once embraced will help us address the matter of how to apply thresholds to MATOCs.
Maybe it's to be found somewhere, but I've looked and not located in policy or regulation, any clear treatment of how to value MATOCs when applying thresholds for such purposes as Agency approvals and applicability of the Contractor Performance Assessment Reporting System (CPARS)...