shall7

14 minutes ago, Vern Edwards said:

That's not true. 

Industry has the answers most of the time?

59 minutes ago, Matthew Fleharty said:

Shall7,

Your assumption that contractors cannot (or should not, I'm not sure which) deliver educational value runs counter to the basic purpose of the federal procurement system as a whole...why is it not okay to use contractors for education/training purposes, but it is okay to use contractors for other services/requirements?  Shouldn't the Government just do everything itself rather than "throw money at the problem(s)?"  Where is the bright line?

I'll just add the following:

• I've been through the DAU courses, the Naval Postgraduate School's MBA program, as well as years of agency designed/delivered monthly training and the best contracting course I've taken was designed and taught by a contractor...so I don't share your concern in the slightest.
• The Government does not have a monopoly on contracting/acquisition information - the best publications, in my opinion, aren't even written by Government/DAU officials.  Should Government acquisition professionals not utilize those works and instead be tied to only DAU resources?

You highlight some great points.  This has all been very helpful.  Industry does have the answers, not the government.  I see your point.

1 hour ago, PepeTheFrog said:

PepeTheFrog's curiosity has shifted to utter bewilderment.

shall7, please, PepeTheFrog begs you, share your thoughts:

1. Are you aware that if you were to switch out your federal badge for a contractor badge, you would remain the same person?

2. Why do you seem to imply that the results will be better if federal employees of FAI or DAU create or teach courses, rather than non-federal employees?

3. Have you sat through more than two DAU courses? Have you sat through more than two industry courses? Which ones? What was your experience?

4. In your interests you listed entrepreneurship and capitalism. What do you like about entrepreneurship and capitalism?

 

 I see your point, and I agree.

1. Yes.

2. The results would probably be worse if the government relied only on its own processes to solve the problem.  I see your point.

3. I have been through course through 280 for the Level II cert in Contracting.  I felt the courses' content was good but the time allotted to do them was far too long.  The courses could all have been reduced in time by at least 50%.  I have always thought the DAU courses could be improved. I see your point.

4. Industry is almost always better at finding solutions to problems.  I see your point.

So the FAI (and DAU?) course content is created by contractors?  Instructors are contractors at FAI?  Perhaps a better approach would be for the FAI or DAU to create a new course?

An interesting draft SOW came across my desk the other day.  A customer (high level office in the Pentagon) is seeking to hire contractors to help its own contracting officers/specialists and other agencies' specialists learn how to write effective SOWs...

The goal would be to create a training program that teaches contract specialists how to write effectively.

This appears to be completely backwards (circular Excel reference error comes to mind), and quite honestly, very embarrassing for this agency as well as government as a whole.

Their apparent solution to the problem:  If the DAU can't create a course to accomplish this or an agency lacks competent leadership to teach its employees to write effective SOWs, just throw money at the problem (ironically with a bad SOW probably) and see what sticks?

Any comments, thoughts?

In case anyone was wondering what happened to this, the Defense AT&L magazine has stated that it intends to publish my final article on this subject in its March 1st 2017 issue.  I hope you all like it!

On ‎5‎/‎24‎/‎2016 at 4:30 PM, Vern Edwards said:

After 40+ years of experience in contracting, which included time as a government contract negotiator, contracting officer, chief of two contracting offices, and headquarters staffer, I'd turn contract writing over to contractors in a heartbeat. That's the way it ought to be, the offerors offer and the Government accepts. That's the power. The Power of Acceptance or Rejection. Let the offerors write the statements of work, just like they do in the SOO process.

Think of it. Free from all that RFP-Contract writing hassle. By God, why didn't I think of it?

Great idea, shall7. So now what? Don't let it just die. I'd toss that baby frog out without a second thought.

Somebody--propose it as an innovation!!!!

My plan is to start with where I am  - the Navy Secretariat.  I will contact the Chief of Staff at the Deputy Assistant Secretary of the Navy for Acquisition and Procurement (DASN AP) and if no traction occurs I'll move through some NAVSUP channels outside my sphere of influence.  If NAVSUP balks at the idea I will move onto the CNO's "Rapid Innovation Cell" and see where it goes from there.  I could also try to talk to someone at the Assistant Secretary of the Navy for Research Development and Acquisition (ASN RD&A) or possibly even the Under Secretary of Defense for Acquisition Technology and Logistics (USD AT&L).

My main problem of course, is lack of rapport or any concrete solution.  It will be a challenge to gain traction, no doubt.

On ‎5‎/‎26‎/‎2016 at 5:48 PM, Boof said:

Ok I am back.

I was only pointing out that when going out to small business I don't think we can expect them to write our complicated contracts for us without undue burden on them.  We can thank Congress for the complexity with having us enter socio economic preferences, labor law, buy american/trade agreement, subcontract reporting, trafficking in persons, corporate responsibility and a bunch of other terms and conditions that must be in the solictation and contract by law.  

I think it is better we write and they sign.  According to some congressional act, the contract writing system should be linked to the financial system and operate as one.  We went out ten years ago and got a whole new system just for this reason.     After 10 years of enhancements it can actually save a lot of time if you choose to use it correctly and smartly. Too bad at least half the staff choose to complain about it versus learn to make it work for them. It is being enhanced again due to the DATA Act of 2014 and we will have to enter even more data into the awards. 

If we had a blank page, maybe we could use the offeror's contract but we don't have a blank page.     

  

Boof,

Regarding your comment about how this will place an undue burden on small businesses...I disagree.  I see this as an opportunity for a commercial software product to be developed and purchased by small businesses that will write the contracts for them.  I can't predict what the price of said software would be but I would expect the price would be driven to a "competitive level" given it will be in high demand (because it's required they write the contracts now) and many competitors will write competing software programs to answer the need.

1 hour ago, PepeTheFrog said:

PepeTheFrog encourages both critical thinking and outside-the-box thinking, which are not always the same.

There's a practical wisdom behind the contract interpretation doctrine of contra proferentem: with power comes responsibility. Ambiguities in the contract will be interpreted "against the drafter," because he who drafts the document has power. So, he should also have responsibility. Give with one webbed hand, take with the other.

Writing a contract provides power. Why would the Government want to cede this power to contractors? Is it appropriate for the Government to abdicate this responsibility to contractors? (PepeTheFrog thinks not.)

shall7: If you owned a business where you relied on subcontractors, would you cede power to all your subcontractors and let them write all the subcontracts? PepeTheFrog would never run a business that way, and doubts that many successful businesses operate that way. Look up "redlining" contracts-- the power struggle of who writes and edits contracts is pervasive in (private) contract negotiations. Why would any entity, Government or private, willingly give up all that power? Simply to be lazy? Because the contract writing (software) system is inferior?

Fix the contract writing (software) system before you decide to give up contract writing altogether. Don't throw the beautiful baby frog out with the scummy pond water!

Yes-- PepeTheFrog agrees with Desparado.

Well said PepeTheFrog; that's a very strong argument. 

20 minutes ago, Desparado said:

So in your scenario we would have the contractors put in the contract clauses designed to protect the government's/taxpayer's interest?  Wouldn't that be like putting the fox in charge of the hen house?

Although an intriguing idea, and an interesting discussion, but I don't know that it would gain any traction. Most contracting officers are not lawyers and so having a CO try to review every clause that the contractor would try to slide in wouldn't be feasible.

Also, since PD2 (granted, it's been a few years since I've used it) builds the contract from the solicitation, is it your proposal that the contractor would also develop the solicitations?  What about the SOW/PWS? I'm going to assume your answer is no to this to which I'll respond with, "If that is the case, then we will still need some type of contract writing system to do the solicitations so why not keep it to move them into the contract?"

I think there may be more "major" hurdles than just WAWF and FPDS....

My opinion regarding the "fox guarding the hen house" is that no more protection is offered if the KO were to originate the clauses in the contract and make a mistake than if the contractor were to make a mistake.  Perhaps it will create a more proactive acquisition force that understands clauses better.

Solicitations can be created through options like Fedbid, fedbizopps, GSA eBuy, etc.

The SOW/PWS would be created by the Government, of course, and solicited through the above.

Of course there are countless other hurdles because I have a primitive understanding of the complexities at stake - but like you said - it's an interesting discussion.

I'm sure there is a very easy explanation to this but I'm starting to wonder why SPS/PD2 even exists (I know PD2 is being replaced soon and this applies to any future contract writing software too).  It was made a long time ago (early 90's I think?) and perhaps these days its more efficient to have the contractors actually write the contracts.

In short, it seems the Government should be able to efficiently motivate each awardee to write the contract and any modifications for the Government and just have KOs review them thus eliminating our need for our own contract writing software system.  (We would still need to upload data into FPDS and WAWF of course).

Here's my long thought process for anyone who wants to read it:

In 2010, then Under Secretary of Defense (AT&L) Ashton Carter established the Better Buying Power initiative.  The initiative challenged acquisition officials in DoD to seek savings first through eliminating excessive costs and unproductive overhead and second by getting industry involved.  One area where both of these objectives can be achieved is through the reduction and ultimate elimination our reliance on Procurement Desktop Defense (PD2) by placing the responsibility of writing the actual contracts on Industry.  Contracting Officers would still maintain the responsibility to award the contract via approval of the contact provided by Industry and they would still need to upload all necessary information in Federal Procurement Data System (FPDS).

The overall goal would be the complete elimination of PD2 but that is not appropriate in the short run.  An appropriate area to test this would be in the procurement of commonly used software products.  DFARS 208.7402 directs contracting activities to use DoD ESI when the required software or hardware is available.  In my current position I serve as a warranted Ordering Officer at the Department of the Navy, Assistant for Administration (DON/AA) and I am frequently tasked with ordering software licenses.  Let’s consider only Microsoft products.  The contract for Microsoft licenses has already been competitively awarded to one specific contractor thus there is no solicitation for quotes or evaluation of quotes needed but rather there is an ordering process that must be followed.  This process requires the Ordering Officer to create the Blanket Purchase Agreement (BPA) call in PD2.

The main area for improvement lies is the creation of the contract itself.  PD2 is part of the larger Standard Procurement System (SPS) that actually writes DoD contracts.  PD2 also uploads contract data into the Wide Area Workflow (WAWF) which allows for proper invoicing, payment, document retrieval, etc.   As many PD2 users know the system frequently experiences latency issues and sometimes it is down all together.  The interface is dated and cumbersome and could use significant modernization.  This article is not about how to improve PD2 but rather how to reduce and eliminate DoD’s dependency on the system.  This is where efficiency can be achieved.

Can the Government properly incentivize industry to create the physical contract document, without PD2, after an Ordering Officer places the order?  Why can’t the Government require the contractor to create the physical contract in the required uniform contract format and return it to the Ordering Officer for review and signature?  Think about the last time you signed a contract for work to be done on your home or your car.  Did you write the contract or did the contractor write the contract?  Imagine going to the contractor’s website and placing an order for the desired Microsoft software – just like you would if it were a personal purchase.  The Ordering Officer fills out all the necessary fields and the contractor returns a contract to the Ordering Officer in the correct format for a bilateral signature. 

What are the advantages to this?

1.  The Government will receive a contract more quickly because the contractor will be motivated to create an efficient process to get the contract completed.  This will result in the Government receiving the software quickly.

2.  The Government will not need to use its own labor to create a PD2 document.  I can personally attest that sometimes it can take an entire day to build 1 contract depending on the number of contract line items (CLINs) and the latency of PD2.

3.  The contractor will improve their cash flow by receiving orders more quickly.  It is possible, that literally the day the Contracting Officer places the order on the industry’s website the contract can be returned for bilateral signature.

4.  If the labor associated with procuring software can be burdened by industry this can possibly expand to other areas in contracting and possibly eliminating the need for PD2 altogether.

What are the disadvantages?

1.  A process will need to be created to allow the Contracting or Ordering Officer to input the contract into WAWF for proper invoicing and payment for non GPC transactions.

2.  A process will need to be created to allow the Contracting or Ordering Officer to input the necessary contract data into FPDS without PD2.

3.  Part of the evaluation criteria will rest on the contractor’s ability to demonstrate the capability to make the contract in the correct format.  This added service will raise the cost of the products but theoretically these added costs would be much smaller than the savings previously mentioned.

In the short term I think it is possible to test this but getting the contract data into FPDS will be the major hurdle.  Overall, the potential of savings and efficiency is high eliminating PD2 is possible (a contract awarded in 2006 to CACI International indicated that over $70,000,000 was spent to maintain SPS/PD2 for five years (search for it you'll find it online)).  Contracting and Ordering Officers only need to focus on the accuracy of each contract and then use that contract to input data into FPDS and WAWF outside of PD2.  I believe the removal of PD2 aligns with the Better Buying Power initiative goals of eliminating excessive costs/unproductive overhead and getting industry involved.  Let’s start the conversation and find out if Industry has a solution that can save the tax payers millions while continuing to achieve our goals as acquisition professionals.

Wow, interesting read!  Just for the record, it is commercial software without any software development.  The GSA contract is GS-35F-0598S.  Here is the price list, see IS-15.

ACES GSA pricelist IdeaScale April 21 2015.pdf

If anyone is curious this is the software...it's called "Ideascale" and it's one of SECNAV's projects.  It's a user based, crowd sourcing platform.  The Navy can only guess as to how many users will be signed up in the coming years so it's difficult to estimate the price.  The current product is offered by Alamo City Engineering Services, Inc.  They are on GSA.

https://doninnovation.ideascale.com/a/index

I currently have an active F type contract for a term software license.  No period of performance was establish in section F; only a delivery date was established.  However, in section B the item description describes a period of performance for 12 months from date of delivery.

I am working on a procurement package for the follow-on competition and I have run into a question I can't find the answer to.

What is the right way to identify term software licenses?  Should PSC 7030 be used or is there a specific service code that should be used?

https://psctool.us/search?pscsearchkeyword=7030&requesturi=https%3A%2F%2Fpsctool.us%2Fsearch%3F

Thanks for the help everyone.

I admit my incorrectness.  Without referencing the Constitution, it is my opinion that the WOSB program is at risk of losing its intended purpose without a firm definition of a woman.

That is all I am trying to say.

6 minutes ago, Vern Edwards said:

No, no, no!!! As ratified, Article I, Section 2 (not Article V), said in part:

As ratified, the original Article V said, in part:

http://www.senate.gov/civics/constitution_item/constitution.htm

Too hasty, sorry oops!  Should have just said Constitution.

14 minutes ago, Vern Edwards said:

shall7:

That sentence fragment contains two statements in separate independent clauses: 1) you cannot question a person's sexual identity; 2) Caitlyn Jenner is a woman in the eyes of the law because she says she is.

You provide no support for the first statement, and you appear to cite a People Magazine article in support of the second. Both statements are false. Do some reading. Start with these:

Tomchin, Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans*People, California Law Review (June 2013).

DuBois-Need and Kingery, Transgendered in Alaska: Navigating the Changing Legal Landscape for Change of Gender Petitions, Alaska Law Review (December 2009), which provides an as-of-the-date-of-publication overview of state law with regard to gender identity.

 

 

Spade, Documenting Gender, Hastings Law Journal (March 2008).

There are many such articles. This is a complicated field of law. 

Very complicated, I agree.  My personal opinion is that a person's gender at birth is what should matter but my personal opinion is irrelevant.  I only started this conversation to highlight how the WOSB program may become compromised in such an ironic way.

1 hour ago, ji20874 said:

We already know the intent of the Congress regarding WOSB set-asides.  

There was also a point in time when it was the "known intent" of lawmakers that only white men counted towards congressional representation (Article V) and that all others (excluding women) would be counted as 3/5ths of a person.

There was also a time when it was "known intent" that women did not have a say in Democracy. 

7 minutes ago, ji20874 said:

Shall7,

Some real women object to Bruce/Caitlyn's claiming of woman status -- some objected when she won some woman-of-the-year award, asking is there no real woman that could win but a former man wins the woman-of-the-year award?

You make a great argument, but ultimately I think we are on a path for the courts to decide who is eligible for "women only" awards (including contracts).

1 minute ago, ji20874 said:

For purposes of high school restrooms, locker rooms, and showers, surgery and hormone therapy are irrelevant -- the key is the gender with which the individual chooses to identify.  

I don't see it happening anytime soon for WOSB purposes.  If a transgender woman ever did get a WOSB contract, I can easily imagine a real woman (can I say that?) protesting.  

I agree, the key is the gender that the person identifies with is the issue at hand.  And my opinion is that you cannot say "a real woman" because you cannot question a person's sexual identity (case in point, Caitlyn Jenner is a woman in the eyes of the law because she says she is).

Reference:

http://www.people.com/article/caitlyn-jenner-legally-declared-woman-judge

On ‎3‎/‎18‎/‎2016 at 5:04 PM, apsofacto said:

High school biology is but a hazy memory, but I think the answer to this question is stamped on every cell in the in the business owner's body.  A woman who gets gender reassignment surgery should be eligible for the WOSB program. 

What if the woman never gets reassignment surgery but is only doing hormone therapy?  Surgery is a little more of a solid argument than hormone therapy is but again we are in the gray area.  I think the solution to this gray area is a new Small Business Program that covers everything (Lesbian, Gay, Bisexual, Transgender, Transsexual...etc.)

Without doing so, any man can simply lie and claim to be a WOSB and no one will want to question him out of fear of being labeled a bigot and being insensitive to his/her sexual identity.

16 hours ago, Retreadfed said:

The true issue is what determines gender for these purposes?  Is it biology or cultural identification?  If biology, in humans, gender determination is done through pairs of X and Y chromosomes.  It is my understanding, gender reassignment surgery and hormone therapy do not change these characteristics.

That is the traditional view but times are changing.  Many people will consider this view "narrow minded" or the "old school way of thinking".

C Culham, there does seem to be strong evidence that the 8(a) program would apply to them due to "social disadvantage" but what about after graduating the program?  The question of WOSB status still applies.

Perhaps a new small business category needs to be created such as LGBTQIAOSB "Lesbian, Gay, Bisexual, Transgender, . . . ., Intersex, Asexual/Agender/Aromantic Owned Small Business"

Retreadfed, you are making the same point I am making but yours is regarding race.  Same question applies.  One day this will be challenged in a court and we'll see what happens  

The SBA nor the FAR defines "man" or "woman" so that is the problem.  If it is the birth certificate that defines peoples' gender then no transgender or transsexual can assume their preferred identity for WOSB purposes

I believe SBA needs to be clearly define a "woman" in order for the WOSB program to continue.