Jump to content
The Wifcon Forums and Blogs

FrankJon

Members
  • Content count

    67
  • Joined

  • Last visited

Everything posted by FrankJon

  1. Invoicing for unworked hours under a FFP TO

    Jamaal - It's not important. I was only making a broader point about the futility of reading too much into the existence or non-existence of a single clause. Errors can happen both to COs who are careless, and those who are aware of and attempting to comply with 12.301(a)(2). If they conflict, then I believe that 52.212-4 would control per FAR 12.102(c).
  2. Invoicing for unworked hours under a FFP TO

    12.301(e) contains examples, but it's not an exhaustive list.
  3. Invoicing for unworked hours under a FFP TO

    OK, now I see your intent. FAR 12.301(a)(2) states: "[include only those clauses] Determined to be consistent with customary commercial practice." As far as I know, there's no litmus test for this.
  4. Invoicing for unworked hours under a FFP TO

    Jamaal - Would it be that surprising to you if they erroneously included both clauses? It wouldn't be to me. Happens all the time. Even for a scrutinizing eye, it can be difficult to determine which clauses are "consistent with customary commercial practice," and the clause matrix has historically contained errors and omissions. All of which is to say, I don't think you should put too much emphasis on this point
  5. Why is the Govt so cliquish?

    I think you're asking why the Government sometimes prefers candidates with direct experience working at the requiring organization. It's because experience and first-hand knowledge of that experience are perceived to reduce future performance risk. Also, in non-FAR terms, I'm sure it's a lot about personalities. If you personally like working with someone, then you'll be reluctant to see that person go and replaced with a stranger. The FAR is an ideal that often clashes with the realities of human nature. Careful. You're conflating experience with past performance. In contracting-speak, these are two different concepts. So how would you ascertain that Mr. Felon is better or worse than the competition before contracting with him?
  6. Missed Option but Have a J&A

    Though my thinking on this topic is admittedly muddled, I don't see upon review how your exchange with OP would have impacted my comment and questions, since only updated clauses were discussed. I also don't see what gave you this impression.
  7. Missed Option but Have a J&A

    That may technically be correct, but in the case of a recently-missed option, I simply do not believe that many COs would supplement the file documentation outside of the J&A. Most, I believe, would treat if it the extension were the option for file documentation purposes. I'm basing this belief on a related, but different situation that I've seen often: extension of a contract during performance, where 52.217-8 was not evaluated at the time of award, so a J&A is required. In this case, I've never seen a CO augment the file documentation beyond the J&A and POP modification. Instead, they treat the contract as if 52.217-8 is still the mechanism extending the contract, vice the J&A. I respectfully disagree. Even if we assume that the CO were to fully supplement the modified file with all-new updated documentation (which I maintain is a stretch), taking into account real-world factors such as system lag, communication gaps, file construction, etc., a bilateral, supplemental modification will ordinarily save significant time over a new award for the same requirement. (My definition of "significant" for this example is 4 hours, or half-a-day.) Point taken. The scenario is far-fetched, but not implausible. How about a justification for "follow-on" work? How about "unusual and compelling urgency," which is used in all kinds of ways? If it's under $700k, nobody apart from the CO will know, potentially for years, at which point the CO is long-gone. I don't see why the prices need to remain static in this scenario. Renegotiate them. If the acquisition is commercial in nature, that shouldn't be difficult.
  8. Missed Option but Have a J&A

    Vern - Might is the operative word here. Depending on the requirement and what the CO wants, a new award could require all of the following: revised IGCE, revised PWS, an updated Market Research Report, OSBP/SBA approval, public notice, price/cost analysis, responsibility determination, and/or FPDS-NG report. Some of these may seem superfluous in context, but there can be a lot of pressure on COs to have "model" contract files at the expense of efficiency. Not to mention regenerating, adding, deleting, and completing clauses/provisions, and the inherent joy that comes with using contract writing systems running on archaic technology. If I were the CS/CO in this case, I would have a strong impulse to avoid the above if possible. Assuming what you are saying is true (news to me), this seems could lead to some absurd situations. For instance, whereas most COs would probably only think to extend a contract that is "recently expired," what about the CO who decides to pick up any decaying husk of a contract (FY16 POP end? FY15? FY14?) and extends that because it would be administratively simpler and somehow justifiable on paper? Why not completely circumvent CICA this way if that's what the CO feels like doing?
  9. Blanket Task Order

    No, and the term does not exist in the FAR. It sounds like a confusion of terminology. Since you reference the simplified acquisition threshold (SAT, not "SAP," which refers to simplified procedures and is not necessarily tied to the $150k threshold), I really think you're referring either to a BPA or perhaps a task order under a BPA. See FAR 13.303-5.
  10. Including an ODC CLIN

    Thanks, Vern.
  11. Including an ODC CLIN

    Vern - Am I being unreasonable when I say that this scenario creates extreme dissonance for me as an 1102? Or is my discomfort merited, and this is why T&M is considered the riskiest contract type? Short of a competent, engaged, questioning CO exercising complete oversight of purchases, this scenario seems ripe for abuse and waste. I envision a situation in which the customer places a lump of money there and deals directly with the contractor (or, alternatively, with a standard, "customer service"-oriented CO), placing orders for any items remotely related to the purpose of the contract, with the intention of circumventing the FAR for these purchases. I also envision a contractor that feels no incentive to price compare, instead repeatedly visiting its "most favored" supplier. I've seen a CO structure a big contract this way for the express purpose of "delegating" the procurement function for future small purchases - whatever they may be - to the contractor. Because the contract was for severable support services, the scope was rather vague. Anything that the Government wanted that touched upon the subject matter, the customer could get in the name of "support." Thankfully, the contract terms required the contractor to provide the Government three quotes prior to purchasing materials, to show that it made a reasonable effort to price compare. But even with this modest precaution in place, the situation seemed absurd to me. I mean, to what extent can a CO "outsource" his obligation to conduct a F&R determination for future purchases? Where does the line get drawn?
  12. CPARS comments

    Vern - Those may be root causes indeed, but then you're talking about human nature (i.e., laziness and variance in intellectual capability). Following along this path, through years of failure, the current system has shown that it does not account for human nature (possible reasons include lack of intuitiveness, high degree of effort, lack of incentive, among others). Any system requiring human interface that does not take into account human nature is not optimized. Look, the objective is to have meaningful past performance data to make better buying decisions. How do we get there with the workforce we have? I do not think that traditional approaches intended to "get the horse to drink" are the most effective or efficient means of achieving that objective. I think that rethinking how we go about achieving the objective is the more promising path. Referring back to Boof's post, I think that requiring documentary evidence with each assessment is one of multiple changes that ought to be considered.
  13. CPARS comments

    Boof - I like where you're going with this. The past performance assessment system is broken: "Very Good" or "Exceptional" have become the default ratings expected by both sides, narratives are often insubstantial and wildly inconsistent, and most agencies are severely non-compliant in terms of doing assessments when required by the FAR. Something needs to change. I like your idea about requiring evidence for starters. If CORs were required to upload their monthly performance reports, this would help to hold CORs accountable for actually drafting these reports in the first place, and would be a form of documented evidence supporting or contradicting any assertions made in the annual assessment. Isn't this a valid risk indicator, though? All else being equal, wouldn't you prefer the contractor with the better track record of choosing quality personnel? OK, so large contractors have much larger sample sizes to choose from, and therefore maybe an increased likelihood of having negative assessments vs. small contractors with smaller sample sizes. I don't think this is the problem you imply it is. First, the Government conducting the source selection will often never see that assessment unless the contractor points it out. Second, I think (hope?) that your average 1102 will have the common sense to factor sample size into the equation when issuing source selection ratings. Disagree with this perspective. See my above exchange with Jamaal. Yes, it may be more costly to hire better quality people who are capable of exceeding acceptable quality level (AQL) metrics, but this decision was made to win the contract in the first place, not necessarily with an eye toward getting better past performance marks (although this would be a plausible outcome). Once a contract is in progress, I would imagine that more often than not, the quality of performance is impacted by output of personnel on the ground, not by active business decision-making. Let's say I have a metric in my QASP (and let's say it's the only metric) that states: "Answer telephone within 3 rings 95% of the time." 95% would merit "Satisfactory" for the Quality rating. Any higher would merit "Very Good" or "Exceptional" in my book, and I would ensure my narrative supported this. The ability of a contractor to exceed this metric is completely at the discretion of the personnel chosen to fill the role, not the company. Note that a history of poor performance already is a cause for debarment (FAR 9.406-2(b)(1)(i)(b)). I don't imagine that it's cited very often, though, so maybe having automated "red flags" that trigger agency reviews would be a good practice.
  14. CPARS comments

    Jamaal - I have not looked at Limitation on Voluntary Services case law apart from the link you sent, but I don't see a lot of risk here in the context of contractors going "above and beyond" to obtain better performance ratings. For instance, Quality and Schedule expectations could be exceeded simply by exceeding the metrics in the QASP and PWS. In a performance-based environment, the Government wouldn't necessarily be concerned with the path that the contractor took to get there, even if that path were introduced by the contractor mid-performance.
  15. Staying in vs leaving

    MV2009 - My recommendation is to go directly to the source - the contractors - and ask the questions. I'm sure they would be happy to give you information that would make it worth their while to compete. You can do this via RFI (future facing; "Would you be interested if X?") and/or direct communications with targeted contractors (retroactive; "Why didn't you bid on X solicitation?").
  16. Question: Must the order NAICS code match the IDIQ NAICS code when the order work would otherwise come within the scope of work described by the IDIQ? Situation (stated hypothetically): A multiple-award IDIQ, which was competed on a F&O, unrestricted basis, was assigned NAICS 123456. This was the preponderance NAICS; the description of work spans far outside of NAICS 123456. A prospective order is best described by NAICS 654321. It cannot reasonably be described by NAICS 123456. However, the order work clearly comes within the broad description of services stated within the IDIQ PWS. Analysis: FAR 19.303(a)(2) requires COs to "select the NAICS code which best describes the principal purpose of the product or service being acquired," but this does not resolve my question. GSA stated on its Interact blog that the order NAICS must match the Schedule NAICS, but it doesn't provide a reference for this rule. I know that for coding purposes in FPDS-NG, the order will need to carry the same NAICS, but I cannot find a firm rule as to why...
  17. NAICS and Scope

    Vern - I think we're mostly on the same page. 13 CFR 121.402(c)(2)(i) states: Perhaps I'm inferring slightly, but I do not read "assign the NAICS code and corresponding size standard that best describes the principle purpose of each order" as being limitless. The chosen MATOC NAICS must be more than the "best" one; it must in fact reasonably describe the principle work to be conducted under the order. If even the "closest" NAICS code does not do that, then the MATOC is an inappropriate strategy. Based on the preceding rationale, I referred to this assignment process as an "analysis" in the above post, even if the NAICS match is obvious and requires nothing more than a statement to that effect within the contract file. (I will also reiterate here that I think this discussion is largely theoretical due to the reasons stated in my previous post.) As always, Vern, I appreciate the time and energy you've put into sharing your insight and viewpoints.
  18. CPARS comments

    This is from the 2016 CPARS Guidebook (you can Google it): As ji states, it's in the eye of the beholder, really. When I was Focal Point, if I saw "Exceptional," that was a red flag to me. Even if the contractor deserved it, the narrative rarely supported it. Your best bet, in my opinion, is to learn how to craft a compelling CPARS narrative yourself. That way, when you non-concur, the Reviewing Official (and possibly Focal Point) will see that you're speaking the correct language. He'll have to take you more seriously than if you had just aired your grievances or resorted to superlatives, as many contractors (and program officials and COs) do.
  19. NAICS and Scope

    This discussion has been very interesting to me. My initial question, whether the order NAICS must match the IDIQ NAICS, turned out to be a simple one. The answer is clearly yes. But ji read between the lines and realized that the deeper question is whether a NAICS analysis should be performed at the order level. Beyond Vern's and ji's points, I continue to discuss this subject around the office and gain additional viewpoints. I agree with Vern, in theory, that the regulations lead one to the conclusion that a new NAICS analysis must be done for each requirement, including prospective orders, prior to determining the acquisition strategy. Assuming that the IDIQ has appropriate NAICS codes associated with "non-principal" work, in accordance with 13 CFR 121.402(c)(1)(2), then performing a NAICS analysis at the order level would not hinder the CO's ability to use an IDIQ that otherwise matches the scope of the prospective order. (Even if a non-IDIQ NAICS would indeed be a better fit for a prospective order, there would hopefully be sufficient overlap between the "ideal" and the "possible" that the CO could make a compelling case to use the IDIQ.) Nevertheless, in practice, I believe that this issue will continue to be a messy one. First, FPDS-NG simply does not play well with the CFR guidance on this. If I were to solicit an order as a set-aside under a "non-primary" NAICS code, I might get a more accurate pool of small businesses competing for the work than if I had solicited the order under the primary NAICS; however, the winner would still be reported under the primary NAICS code. Thus, the situation could arise whereby a company that is "small" for solicitation purposes is "large" for award purposes, and vice versa. Second, there seems to be no shortage of "best in class" MACs and GWACs that disregard the CFR rule to divide the contract into multiple NAICS codes. For instance, on SEWP, the Government can by laptops under NAICS 541519. I haven't looked recently, but I believe that NASA would cite the VAR exception if asked to defend this choice. But, of course, that would be absurd for laptops--a small business reseller will not be providing any added value via services. If something goes wrong with the laptops within the warranty period, it's the manufacturer who will be assisting. I'm not suggesting that NASA's decision in itself justifies anyone else circumventing the CFR guidance, but at a certain point, practices are so prevalent that they become norms. As an aside, Vern, I'm curious about your use of the acronym "MATOC" throughout this thread. This is the first time I've seen someone use it outside of a construction context. Do you commonly use this to describe any task order contract?
  20. CPARS comments

    Michael - The answer to this is yes, it is possible, although it is not part of the regular CPARS process flow. Either the Department POC (DPOC) or Agency POC (APOC) (in my last agency they were the same person) would need to send a request to NAVSEA to "unwind" the evaluation and explain the rationale for doing so. In every case that I've seen this occur, NAVSEA has agreed to the request. As the Agency Focal Point, I would encourage others to pursue this path if it seemed like the most equitable solution under the circumstances. Now, if I were a contractor, and I disagreed with the evaluation, I would most likely still want to non-concur within those first 14 days to mitigate the consequences in the event that the above course of action never materializes. A non-concurrence would not prevent NAVSEA from unwinding the evaluation if adequate rationale exists.
  21. Staying in vs leaving

    MV2009 - Your question starts in one place and ends in another. It's a bit confusing. You may want to be more specific as to the problem you're experiencing with regard to industry and suspected causes in order to get useful feedback here.
  22. NAICS and Scope

    Thank you for your input, Vern. Do you have a strong opinion on the applicability of FAR 19.303 to new requirements that could be procured as orders under 16.505?
  23. NAICS and Scope

    Thank you for your interpretation.
  24. NAICS and Scope

    ji20874 - As usual, you're getting me to think about a topic differently. But I need to ask, why doesn't FAR 19.303 apply to prospective orders? Put differently, why shouldn't every new requirement receive an independent NAICS analysis prior to determining strategy? By neglecting to do that, aren't we potentially impacting competition in other industries?
×