FrankJon

I saw this article yesterday: A 4-Day Workweek? A Test Run Shows a Surprising Result. I applaud the firm from this article for taking on this experiment, but I can't help but wonder: Why not go further by eliminating artificial time parameters altogether (possibly with the exception of an upper limit)? Today I've been thinking about whether the Government might be able to employ a "performance-based" schedule for 1102s, and what advantages/disadvantages it may bring. Under the system I'm envisioning, employees would be expected to turn in X deliverables, or show X progress, while meeting applicable time-based and quality metrics, within a given performance period. Employees would have up to 80 hours to meet these requirements, but could stop working the moment they've satisfactorily done so. (This system could be adapted for recurring or ad hoc requirements. For instance, employees would still be required to attend meetings that arise or respond to customer questions within X number of hours. Also, there would need to be a system for handling unanticipated, urgent requirements.) If workable, the benefits of such an approach seem obvious. Broadly speaking, over-performers are justly rewarded with more free time than their colleagues, and under-performers are motivated to work better to obtain free time. Morale improves across the board. This concept isn't without basis. I know of one agency where this kind of schedule is broadly practiced by its primary mission personnel (unofficially, though it's an open secret). Employees are assigned a workload at the start of each pay period. They can come and go as they please, or not come at all if they choose to telework. Once they complete their workload, employees are effectively done with work until the next PP. In addition, sizable bonuses are offered to further incentivize strong performance. So there's Federal precedent, although not directly applicable to the 1102 field. Putting aside the politics of effecting such a change, could such an approach be workable in the 1102 field? Why or why not? What would the risks be?

As I said in my first post, the article was just a spark for me. I am not using it as a basis for anything. I wanted to discuss taking the idea further. I also mentioned that there is precedent for this type of set-up in the Government, but it's on the QT. While it's not the contracting field, it is a highly-professionalized field that I'm thinking of. We're just talking here, man.

Anecdotal evidence. It's a point that can be debated if anyone disagrees. That's why I called it a "proposition." As far as I know, all civil servants must account for their time. I added quotation marks around "clock in and out" to indicate it's an expression. Some offices require employees to enter their in-times and out-times each day in a virtual time and attendance system. Others only require employees to show how many hours they worked each day. Either way, it needs to total 80 at the end of the PP. I won't waste my time discussing the body of research that being stationary for too long has negative health consequences, or that morale suffers when employees are not stimulated. Try Google. What I want to discuss on this discussion board is what I've written about. Rethinking the concept that work hours--whether physical or virtual--equate to productivity. Eliminating the requirement to work 80 hours per PP. It's a fiction. A thought experiment. Something for those of us with time on our hands to while away the time discussing.

Let's see if we can agree on a few basic propositions: For the vast majority of 1102s, work ebbs and flows throughout the year. A system in which salaried employees clock in and out until they reach 80 hours is not an effective mechanism for establishing accountability or ensuring quality of output. It's especially ineffective for a field such as contracting, which has inconsistent work requirements throughout the year. Moreover, such a system adversely affects employee health and morale because it requires employees to be stationary and physically (or virtually) present more than necessary. I agree with the comments that moving the 1102 field to a "performance based" scheduling system would be challenging--and potentially unworkable--but I'm looking at this from the perspective that the 80-hour work week system is antiquated, silly, and untenable in the long-term. I believe there's a better way, and it's a matter of finding it. I also think re-framing is in order. I don't think this would be publicized as some sort of incentive system rigidly applied so that high achievers benefit and low achievers pay. Maybe it's as simple as: If there's nothing for you to do, you don't need to be "clocked in," but you do need to be "reachable." All else being equal, those who can work more efficiently while meeting quality standards will tend to work less than those who cannot. To push this topic further, here are some specific responses to comments posted since this morning: @jwomack: In terms of the work getting done, I'm not sure anything changes. If an employee is not meeting the expectations of her position, that ought to be reflected in her annual assessment or other corrective means. If an impending deadline is at risk, that would be handled no differently than it is now. Maybe the supervisor helps. Maybe the work is reassigned. Maybe pressure is applied to the under-performer. As to your variables, I foresaw many of these and I generally agree they pose hurdles. But I also think it might be a matter of re-framing, as I mentioned above. Nobody would be entitled to doing less than 80 hours. It would simply result from a lack of work. As for dealing with "bad" customers, COs can be rotated in an equitable fashion. Or maybe one CO builds a rapport and likes the challenge. Maybe that CO is incentivized with a bigger bonus or a large percentage of the pay pool for contributing more. Even if that CO must do a full 80 hours, it's not automatic that she would have to work "more" than the under-performers, who would also be assigned a full workload commensurate with their abilities and grade. Regarding other workload differences you mention, I reiterate the need to adjust our thinking. Why should someone with less than 80 hours of work to do be forced to stay in her chair for the same amount of time as someone with 80 hours of work to do? Who benefits from that? One person would still be working while the other is not. Ideally, through incentives or regular rotations, employees are treated fairly year-over-year. In a way, I don't think these are very different from the challenges organizations currently face. @Junius: With the advent of "performance based" scheduling, I think there would need to be additional policy pertaining to workload distribution. But for the sake of argument, let's say it's left to the agencies' discretion and distribution is basically as you describe. First, I believe in many instances a high-performing employee would still be able to get more done within a shorter period of time than a low-performing employee. Second, would still be a quality control process in place. The low-performer cannot simply speed through her workload then knock off. The supervisor needs to "accept" the deliverables. Third, if we're talking about real dead-weight of an employee--like someone getting menial workload assignments because she can't be trusted--well hopefully that person is paid commensurately or the supervisor is taking administrative action against her. Either way, as a high-performer, I'd know I'm doing better than her and I honestly don't think I'd care where she is or what she's doing. @Vern Edwards: Isn't some level of "mass production" the direction this field is going in? Acquisition streamlining, FSS, commercial item contracting, GWACs, enterprise-wide contracting, best-in-class contracting...artificial intelligence. These are all steps on the road to reducing variables, lowering risk, and making the field "idiot-proof." The standardization of contracting. (Overall, I don't think it's a bad thing, either.) Sure, there will probably always be variables that require the CO to think. But that thinking always results in a deliverable product at some point, doesn't it? Maybe that point isn't until next month. A supervisor knows this of course. So a memorandum stating progress on X system acquisition is substituted for a direct work product. The CO could choose to stop working when progress is met, or continue working if she wants (as many high-performers would). For complex acquisition planning, the focus would be about staying on track and agreeing on strategy. If workable at all, there would need to be flexibility and common sense applied to this system. But I think the only differences between what I'm describing and what we currently have are that (1) a supervisor would be required to conduct bi-weekly check-ins to ensure progress, and (2) those with downtime wouldn't be forced to put in face time each day.

If you're considering having a contractor draft a PWS, make sure you review FAR 9.505-2 first.

This discussion reminds me of this one: @eagertoshare if you're talking about a "butts-in-seats" service contract, I recommend checking out pg. 3 from that discussion. There are good arguments there as to why neither FFP-LOE nor T&M would necessarily be appropriate for this kind of requirement, and a suggestion as to how FFP can be appropriately applied by using "hours" as the schedule unit type.

If you currently work for the Federal Government, there are some agencies that will pay for your education in exchange for a service agreement. Your best bet for this is probably DoD, since they have Defense Acquisition Workforce Development Fund (DAWDF) appropriations. DAWDF gives DoD agencies a lot of flexibility in terms of workforce incentives.

Are you serious right now, Vern? You're whining to me about fairness? Do not baselessly deride me or others, then cry foul when people call you out for your contradictions and inconsistencies. You called my comment "clueless" for utilizing the same rationale you used six years ago in a different scenario. Give me a break. It is wholly fair that I pointed that out. Now you choose: Were you "clueless" in 2012, or has your thinking evolved on the matter? If the latter, explain why. You don't get to criticize then weasel out of being criticized for the same reason. You don't get to sanitize the paper trail to protect your image, then pretend like everything is OK. Your words matter. Be accountable, Vern. This pattern you exhibit of ripping into others who post thoughtful comments that you disagree with is shameful. Your tit-for-tat exchanges and incessant need to get the last word are completely embarrassing for someone of your stature. You're a contracting legend, for whatever that's worth. Show some damn respect to those of us who are here to learn from the best and help others.

Vern has retracted his last comment toward me. I'll do the same.

Vern: To be clear, I don't think anybody (including myself) suggested that 52.222-46 is mandatory when issuing a TORFP (this is the term OP used, by the way). I said that it's at the CO's discretion. I recommended usually performing, or at least leaving door open for performing, some kind of realism analysis. If the CO wants to do that informally, that's fine. If the CO thinks 52.222-46 applies, that's fine. Given that there is no FAR-wide definition of "negotiated contract," I stand by my "clueless" advice. Here is what The Government Contracts Reference Book (4th ed.) says for "Negotiated Contract": This says to me that the likes of Ralph Nash et al. think that the term "negotiated contract" applies beyond FAR 15. And here's an example I found from Vern Edwards (2012 ed.): This tells me that Vern Edwards (2012 ed.) thought "negotiated contract" could apply specifically to 16.505 procedures, despite the fact that Vern Edwards (2018 ed.) confidently states:

Retreadfed: I'm not sure what you're getting at. You said: In response, I said: I was clarifying that your suggestion to look at 52.216-18 did not address OP's original question, unless the CO had incorporated the information received from 52.222-46 into the IDIQ and in some way made it binding (which I doubt). Because maybe it makes business sense. What if, as I suspect, the CO included it in the original solicitation as a basis to establish the IDIQ awardees, but did not incorporate the information into the contracts? The risks discussed by 52.222-46 would reappear with each TORFP. Maybe a simpler realism analysis would do the trick. Maybe the CO thinks 52.222-46 is more appropriate. As I said in my original response, I think that should be at the CO's discretion. I don't believe that 52.222-46 could ever truly be made "mandatory" because the prescription is vague.

Why? What are you basing this on other than "See FAR 22.1103"? Where within 22.1103 did you pull the "RFP" terminology on which you appear to be hanging your hat? I reviewed 22.1103. I talked about it. I gave my reasoning for my conclusion, based upon regulation and business rationale. If you have additional insight that's not conclusory and needlessly abrasive, I'm sure we'd all like to hear it.

Yes. No.

OP is asking about a provision, which isn't in the contract. Maybe the Government stipulated that rates are fixed, as @C Culham suggested, in which case that term would apply per 52.216-18. But I doubt that's what occurred.

It depends. In reality, it's up to the CO. Why do I say that? Let's break down the prescription at 22.1103. It applies only to "negotiated contracts." According to FAR 15.000, a negotiated contract is: Therefore, a task order contract qualifies as "negotiated," not just FAR 15 contracts. See also the definition of "negotiated contract" in The Government Contracts Reference Book. So go to #2. There's a $700,000 threshold. Is your task order over or under that? If over, continue to #3. (And if it's under, I don't think there's anything stopping you from continuing to #3 if you think it's appropriate.) It applies when "services are to be provided which will require meaningful numbers of professional employees." Huh?? What is a "meaningful number"? This is why I say it's up to the CO. Any number can be considered "meaningful" or "non-meaningful" depending on perspective. This prescription is kind of ridiculous in this sense. Also, have you confirmed that these are "bona fide" professionals you're hiring, in accordance with FAR 22.1102? I've seen COs overlook this language, thinking the provision applies to all service contracts. In reality, it applies to only a sliver of the service contract pie. Last, I'll point out that the Provisions & Clause Matrix indicates that this provision is not intended for commercial services. So there is another discriminator if you're looking for wiggle room. So, if upon reading all of that, you think it applies, then it applies. But there's also a common sense aspect to this. Doing the evaluation required by this provision at the IDIQ level in a multiple award setting doesn't achieve much because the risks it is supposed to mitigate will return once the task orders are competed. That is, contractors may feel incentivized to under-compensate professional employees in order to win work. Unless this provision or similar price or cost realism language is in the TORFP, then they will have the flexibility to do just that. When you're contracting for services in a competitive environment, it's usually a good idea to include some kind of "realism" evaluation language in the solicitation to protect the Government's interests (even if it's just "optional" language). Whether you do that through 52.222-46 or custom language is up to the CO.

@MAY-D-FAR-B-WIT-U, this post is extremely hard to follow. You seem to be asking multiple questions and implicating multiple issues. I strongly recommend reviewing the following post, then editing for clarity. Are you trying to find out if the inclusion of FAR 52.222-46 in a TORFP converts the solicitation procedures from 16.505 to 15?

@Vern Edwards, you're moving too fast. Though I'm sure I've done something since Friday that would provoke your criticism, posting in this thread was not one of those things.

But don't most small businesses fail anyway? To Carl's point, isn't the relevant question here whether the 8(a) Program (or any SBA Program) has a statistically relevant impact on small business success rates?

I didn't know this. Do you mean SB or 8(a)? Are you basing this on anecdotal evidence, or are there statistics on this?

To be clear, my post wasn't meant to take a position on the merit of the 8(a) Program. I simply learned something about the 8(a) Program that I was shocked I hadn't learned before. In my post, I mentioned ethnicity in addition to race. I thanked Pepe for calling my attention to the topic.

It's interesting to me that the FAR uses quotation marks around "in the open market," then cites to FAR 12 as an example. Here's what the statute states: https://www.law.cornell.edu/uscode/text/41/6505 I'm speculating, but my impression is that the FAR drafters did not know exactly what the statute meant by the quoted language, so they decided to give an example that they were sure about and keep it open to interpretation. To your question, we do know at a minimum that anything that can be defined as "commercial" is exempted. So you have to look at the thing being purchased to determine commerciality in this case, not the source or program under which it's purchased, and compare it to the definition of Commercial Item at FAR 2.101. AbilityOne is a program. As far as I know, its suppliers, such as Skilcraft, only make commercial items, like clocks and pens (I don't know this to a certainty, but I'm pretty confident office supplies represent the vast majority of what they do). Just because a pencil says "Skilcraft" on the side doesn't mean it's not commercial. I don't know what you're buying under the AbilityOne Program, but I think there's a very good chance it's commercial, and thus you are exempted from the requirements of 41 U.S. Code § 6505.

Sounds like an interesting read. Thanks for the recommendation, Vern. And I'm sure many on here sympathize with your disgust for FAR 19 (and a power-hungry SBA)!

@joel hoffman I see what you're saying, and I agree with your initial point that a warranty and maintenance should be two different things. Perhaps this discussion will help to clarify OP's thinking. If it helps to alleviate concern in OP's office, perhaps the "warranty" can be specified in the contract with a "NSP" CLIN and POP.