General.Zhukov

On 4/26/2024 at 4:22 PM, Don Mansfield said:

So the financial systems can't accommodate bulk funding (FAR 13.101(b)(4))

I don't know exactly how their finances work (not my office, and our agency has complicated funding - 50% appropriations from Congress, 50% fees from industry, both with many strings attached), so I excluded it from consideration here.  But yes, it's likely that they could use something like bulk funding if they figure out the timing part.  That is a part of FAR 13 I didn't know about!

Thanks for the suggestions. 

I think we will probably consider a short-turn-around FAR 13 BPA for the relatively more expensive items and stay with P-Cards for the little stuff.  If we can get a new BPA to be much, much faster than our other BPAs/IDIQs.  My agency has many BPAs (we love them, we use them the most in HHS), but they are for far larger and far more complex requirements.  BPA Calls for millions of dollars of professional services, not hundreds of dollars of supplies.

3 hours ago, C Culham said:

How many were LPTA?

Unfortunately, that's not in FPDS, my data source. However, the FAR goes on at length about things that aren't commonly done anymore.  To wit, last year HHS awarded as reported by FPDS:

• 23,330 New Contract Actions (not modifications nor "other" like OTAs)
• 22,270 Orders (Delivery Orders, Purchase Orders, BPA Calls)
• 1,000 Definitive contracts
• 297 definitive contracts which had >1 offer received.   That is 1%.
• 1 multiple award IDIQ, which was awarded by the CDC.  
• 0 Basic Ordering Agreements
• 0 Price evaluation preference for HUBZone per FAR 19.13
• 0 Partial set-asides of multiple-award contracts per FAR 19.13

Now the caveat is that the data in FPDS is of varying quality and reliability, so these numbers are approximations.  Someone in HHS other than the CDC did a multiple-award IDIQ last year, surely.  Interpret only 1 multiple-award IDIQ in HHS as meaning this type of contract is very rare, but not literally 1/23,330.  

The point is twofold, first is that the FAR is full of stuff that, at least for HHS, is irrelevant and nobody would even notice if those sections of the regulations disappeared, and second, this is a fact which everyone already knows but nobody can do anything about.

Preaching to the choir here, but...as bad as FAR is, the Agency ARs are worse.

Late year, HHS - which is very large - did 71,000 contract actions recorded in FPDS, for >40$ billion dollars. Of these 71,000 an underwhelming 0.1% (68) used FAR 14 Sealed Bidding procedures, for a tiny $13M (0.03%).   

In all of HHS, only seven Sealed Bid contracts for over $SAT were awarded.  Seven!  Out of 71,000.  1/10,000.  HHS is basically like "Nah, we aren't doing FAR 6.4 or FAR 14 anymore."  

Yet, HHS has a chapter of the HHSAR devoted to these rarest of contract actions. It's a short chapter, I grant you, but it's still a chapter at all.

This x 1,000. 

What are some procurement arrangements I can use in our situation -see below - other than using a P-Card?   (I think this is contract admin issue more than anything else, but if this question is a better fit elsewhere let me know)
 

Situation:

- A civilian agency's remote facility housing many small heterogenous laboratories.  Their scientific and laboratory supplies are a constant procurement problem. They use P-Cards, but are wondering if there are alternative solutions.

- Heterogenous labs means different types of specialized supplies.   Most supplies come from a few big well-known companies (like Thermo Fisher), but lots of different items and some items have a single source.  For the crown-jewel instruments (like this one) we have support contracts & warranties, so not a major problem here.

- Small means very low dollar volume of these supplies.   Almost all purchases are under micro, many are under $100. Annually in sum, maybe $500K - $1.0MM.

- Remote means delivery is relatively slow and expensive given the low $.  A lab assistant can't just grab the P-Card, and drive to a nearby warehouse full of, for example, special gloves resistant to particular chemicals that leach through latex.  

- Because of funding and non-contracting reasons, creating a mini-stockpile or better supply management at this facility aren't feasible in the short-term. 

Comments:

- My guess is that P-Cards are the best and only method of procurement for this situation. There isn't anything else that would be effective.  But... maybe I'm wrong - this isn't my area of expertise.

 - A BPA doesn't seem like the right fit given the small scale, because at these very low dollar values, issuing a BPA Call for something under micro seems excessive.  Takes too long, administrative cost of a call exceeds the value of the supplies being purchased, etc.  

- This sort of situation is probably much more common in DoD world, which I know very little about.  I was activity duty logistics but didn't deal with the supply chain.  Where the stuff came from wasn't my concern.  

- No department or government-wide acquisition vehicle or civilian equivalent of DLA that we could use, at least none I am aware of. Caveat - some of their scientific/laboratory/medical supplies are indeed purchased from GSA or VA, but those common items aren't the main problem.  The problem is with niche specialized supplies that aren't on any vendor's FS schedule (or whatever they are called these days).   

- Made in America makes this more difficult.  For example, they need a type of Xylene-resistant gloves.  I've been told these need a waiver.  

Final comment.  I don't know the details of the fly business class but charge economy class case.  I do, however, know that Business Class jumped of the screen when the CO looked at the proposal's travel cost estimates, and was never going to get into the contract.  At least in my office, it's the only case I know of where an offeror was like "yeah, we are proposing to fly business class and you are going to pay for it."  In fairness, the PhDs in the labs want/need this exact model of instrument made by this one company (whose sales reps maybe or probably have been chatting about it to the PhDs for months before contracting got involved), and everyone knows this and negotiates accordingly.

Thanks for the thoughtful responses.

This was very helpful and reassuring to me, as your responses agree with my understanding.

The flying business class case is real too - although what happened is the GVT refused, thinking (wrongly, IMO) that it was prohibited, and the OEM agreed that $$ over economy class wouldn't be reimbursed.  Apparently, highly-skilled technicians - especially those willing to travel to remote locations and be responsible for very expensive and delicate machines - can demand perks, and their employers are eager to pass those costs on to customers.

Scenario: 

The common scenario in my agency is a fixed-price order for commercial services. 

Let's say it's for on-site installation and calibration of scientific equipment.  This is a contract directly with an OEM, not using any acquisition vehicles which have their own procedures and rules about travel.  We will have the new instrument installed in four labs around the country.  OEM technicians must plug it in and get it working in person.  The labs and the OEM both insist on using reimbursable travel to cover the travel costs.  Time on site is unpredictable - could be a few days, maybe much longer if things go bad.  The labs don't want to 'overpay' for fixed price travel.  The OEM, after a bad experience with another agency during COVID, also insists on reimbursable travel.   They are firm on this.  Conservative estimated total travel cost is $80,000 on a multi-million-dollar contract, so not worth negotiation with a vendor who's already said they aren't negotiating on this.

As the CO, I shake my head, insert FAR 52.212-4 Alt 1, follow the procedures, get all the approvals, etc. and now have travel as a reimbursable ODC on a T&M Line Item. 

Question

What, if any, other regulations or laws must apply to travel in this scenario.  As its commercial, I'm uncertain if 31.205-46 Travel costs applies "automatically."  How about the Joint Travel Regulation?  

Let's say the tech always travels business class - and has the receipts from previous non-governmental customers to prove it - is that okay, as that's the 'commercial market practice?'

Not everyone is opposed to commercial.

In my contracting office, which has roughly one hundred 1102s, we did about 1,700 new contract actions last year (excluding modifications & close-outs).  The vast majority  - >95% - of these actions were commercial orders.  Of the remaining 5%, most are special cases (BAAs, R&D, inter-governmental cost contracts required by law, etc.).

Excluding the specials, my agency could very well have awarded zero non-commercial contracts last year. 

Last word on this.  Yes.   Universities (big ones) have business offices whose job it is to work with you to get the signature, including accepting and complying with T&M or Labor Hour pricing, or FAR 31, or whatever.  There is no blanket prohibition I am aware of that would make universities categorically unable to comply with these regs.  I know for sure that my federal agency routinely enters into contracts with universities (to do agro/bio research and regulation related stuff).

19 hours ago, CuriousContractor_22 said:

! When working with IHEs with LH and T&M MAS contract orders , have you run into any issues remaining compliant with time keeping due to the issues I alluded to above?

No, I don't think there are any problems with universities complying with timekeeping.   None that are big enough for me to be aware of.

Large research universities (the type my agency works with) will have some sort of office that takes care of contracting.  These are the people to talk to.  Like this one I know about at Johns Hopkins.  Not the PhDs.  The investigators who do the work of the contract - they neither know nor care about the FAR or timekeeping compliance.   

15 hours ago, CuriousContractor_22 said:

How I understand it is universities are not required to track time like other government contractors are, so they do not track their time in a system to invoice a prime on Time and Materials task orders.

Many institutes of higher education have MAS contracts with Labor Hour pricing (UNC Chapel Hill for sure).     My agency has LH and T&M MAS orders with these universities.  We also have cost no-fee contracts with universities (like Texas A&M).  We have contracts with non-profit primes that sub to universities.  I don't know the details of those, but they aren't fixed price. 

My agency, however, (mostly, maybe only) works with public state universities, things may be different for private IHEs.

There isn't any type of blanket prohibition. 

On 12/20/2023 at 3:01 PM, mfinch1789 said:

. How do you arrange for the contractor to be able to observe classified data on a Navy base and transfer it to an Army base? Who should be the points of contact? Field Security Officers (FSO)? Base commanders?

I can say from personal experience in the Army, that this does happen, or at least did happen for me, and it was pretty routine.  My Army unit had access to stuff that was in advanced development state by other USG entities, ranging from moderately to very classified, and we got training and tech support by contractors who worked for those other guys.  There was, in my case, an on-site uniformed officer overseeing it all.  So, it happens.   Contract-wise, I don't know, wasn't my job at the time.

On 12/20/2023 at 3:01 PM, mfinch1789 said:

The Army wants

Its the Army's job to figure it out and coordinate, specifically it's the Commanding Officer's job.  Easy.  Not joking.  The details and execution may be quite complicated and delegated down many levels from the commander, but ultimately, it's their responsibility.   

If it's not happening despite the fact that everyone wants it to happen, because nobody knows who goes first, or who has the authority to make actual important binding decisions, or general inertia and passivity, or lack of money, or whatever, then it's then the commander's responsibility to fix things.

For many (not all) things in the Army, this is the PEO.

What should happen: The uniformed boss of your particular contract/project tells his uniformed boss (PEO) "we want in on what the Navy is doing."  The PEO agrees, then tells her staff to make it happen.  Then it happens. 

A little off-topic, apologies.

I am reading this thread here and don't understand how a FFP NTE Line Item (CLIN) for travel reimbursement is materially different from cost-reimbursement (no fee).  

1 hour ago, joel hoffman said:

A FFP line item amount, then drawing from that amount based upon actual, allowable costs, with NTE ceiling costs, not subject to adjustment for an indeterminable travel nature and frequency, seems to an untenable risk - unless you add adequate risk to the negotiated price.

This quote is hinting at the difference, but I don't quite get it.

Are you asking about splitting requirements? 

My definition: Having a known requirement that is larger than the applicable dollar thresholds and dividing that requirement with the intent to purposely circumvent those thresholds. 

In your case, the purpose of splitting requirements would be to lower the dollar value of action, and thereby lowering the non-competitive approval authority, right?  You have a $1,000,000 sole-source contract needing approval by the Advocate for Competition.  You do not want to seek AOC approval, so you split the requirement into two $500,000 contracts, now the Contracting Officer can approve the JOFOC, rather than the AOC.

If splitting requirements is done in collusion with a contractor, or with the intent of directing the award, it is fraud, more precisely Fraudulent Sole Sourcing.  Dust off your Contract Attorney's Deskbook, flip to Chapter 28 Procurement Fraud, and read all about it.

If splitting requirements is done without collusion, for more prosaic reasons, it's not fraud per se, but it is...ethically questionable.  The actual experts here on Wifcon will know more than me about this. 

Can an offerors history of bad-faith protest somehow be considered during source selection?

My basic very-much-not-an-expert understanding you'd have to pass two tests (note to the actual experts on wifcon, please correct me here)

1) you'd have to demonstrate how that is tied to your RFP's requirements/objectives, expected to a discriminator, and an indicator of best value.  Basically, FAR 15.3.

As @formerfed wrote, maybe...  if you could reasonably argue what's evidence of an offeror having a propensity to file frivolous or bad-faith protests, and how that would be a negative.  I think that is possible in some specific cases, but generally would be very difficult to do.

2) Isn't prohibited by law, policy, or convention (i.e., there is NO history of protest decisions effectively squashing what you want to do)   

See comment by @bob7947 

My hunch is that you wouldn't be the first person to do this, and there is precedent ('case law' / protest decisions).

Bing (which is ChatGPT 4) has the answer:

"I’ll try to explain in simple terms.

The American Recovery and Reinvestment Act of 2009 is a law that provides money to help create jobs and improve the economy. If someone wants to buy something using this money, they have to follow certain rules. One of these rules is that they have to use a special form called “Alternate II” when they make the purchase. This form helps make sure that the money is being used in the right way.

So, if someone wants to buy something using money from the American Recovery and Reinvestment Act of 2009, they have to use a special form called “Alternate II” to make sure everything is done correctly."

So I think this is true: GVT & you agree that they cannot require you to provide certified cost/price data.  Rather than demanding certification, they are asking for it.  That is, they want you to voluntarily certify the data you have already provided to them.  Correct?

If this is what's going on, the path of least resistance for you is to have the company owner (not you) certify the data and be done with it.     

Speculation: They are struggling to get to fair and reasonable pricing.  This is unfamiliar territory for a lot of contracting folks - over-budget for a non-commercial product, from a sole offeror, who is a very small non-traditional new-to-the-DoD company.  This eliminates the easy and routine ways to get to fair and reasonable pricing.  They are down to the seventh and "final" price analysis technique (FAR 15.404-1 b 2 vii) - other than certified cost or pricing data.  So what is normally a very straightforward and simple analysis is, in your case, unusually complicated and looks, at a glance, like it probably should have certified data. Some approving official unfamiliar with this complicated situation (mistakenly) skims the award docs, and kicks them back for missing the certification letter.  Rather than push back against that official, CO is going path of least resistance, and asking you for the certification so they can add that single-page file to the package, change nothing else, and re-route for approval.  We will never know, but that's my guess.

Aside: "Final" pricing technique in quotes because the FAR explicitly states these are examples, not an exhaustive list, but in practice, its sometimes treated as an exhaustive list.  Like everyone assumes a written pricing analysis MUST refer to one of those techniques.  Or worse - I've seen a checkboxes for which techniques were used, and there was no box for 'other.'  (This was not my office, btw)

As I understand the question, three facts:

1. a contractor has sold your third-party software to the government, and your software is currently being used by a government customer.
2. the prime has not paid you for the software that you owned, they sold, and is now being used by government.
3. the licenses have expired, so the government users are in violation of something (probably the EULA) and probably not allowed to use it.

• Can I use these facts as leverage to get the contractor to pay me?

Probably yes, however, I'm not a lawyer, certainly not your lawyer, nor will I be paying your legal fees.

If I want to immediately cause a crisis, I would identify the government end-users and the cognizant contracting authorities and then notify them that use of your software must immediately stop.  That will motivate them to discuss the issue with your prime.  Or, if technically possible and even more crisis-inducing, just active the kill switch remotely without warning.   

A more reasonable suggestion: It is very likely that the contractor is in violation of some part of their contract with the government.  You will probably need their specific contract to find out exactly what the contract states, and hence what part of the contract they are breaking.   You can (probably) get that contract - speak to a lawyer about it. In the meantime, it's very easy to find other publicly available federal contracts that may be pretty similar - that cover third party software.   This may help you get a general, generic, sense of what the terms and conditions are.  These contracts have terms and conditions, clauses, and often a separate software licensing agreement- where the issue of third-party software is discussed.  In there somewhere, you will find something to the effect of "You can't sell us third party software with expired licenses, and if you do, here are the bad things that will happen to you."  

ESI.MIL is probably the best source.  But GSA, NASA SEWP, NITAAC and many, many, other federal civilian and DoD entities have these types of contracts available online.

Add On:  The FAR is not good about software.  The FAR clauses that may apply to your situation are very broad, lacking important details, and I doubt you will find them helpful.  However, there are layers of regulations and some of the second and third layer regulations ARE pretty good about software, particularly within DoD.  If you know they government customer and can identify the applicable sub-FAR, you might be able to find some regulations/clauses that would be useful.  

For example, three levels of regs:

1. FAR (Everyone)

2. DFAR (DoD)

3. AFAR (Army)

The Red Book | U.S. GAO, Chapter 5. This will have your answers, probably.

The rules are different depending on your situation. 

• Do you have a multiyear contract? (Which is a special thing, not just a contract whose total duration inc. options is > 1 year)
• Is funding multiple-year appropriations?
• The contract is for severable services?

Thank you all, very helpful, I think I get it better now.

As a US Army Engineer, I often dealt with little quick and unpredictable requirements that couldn't be reasonably priced in advance - so now seem suitable for an agreement - "We need 2-3 HAZMAT dump trucks to take all that contaminated soil to the remediation field.  Range control says it's our fault, so won't do it for us, and won't clear us from the range till the stuff is gone, inspection is at 10 AM tomorrow so chop chop Captain." 

You have to negotiate price for stuff like this each time, but the terms are pretty standard (license & certs, mil escort on-base, etc.). 

Help me understand these two concepts.

Basic Agreement. Defined n FAR 16.702.  A basic agreement should be used when a substantial number of separate contracts may be awarded to a contractor during a particular period and significant recurring negotiating problems have been experienced with the contractor.

Basic Ordering Agreement.  Defined in FAR 16.703.  A basic ordering agreement may be used to expedite contracting for uncertain requirements for supplies or services when specific items, quantities, and prices are not known at the time the agreement is executed, but a substantial number of requirements for the type of supplies or services covered by the agreement are anticipated to be purchased from the contractor. 

I don't fully comprehend the purpose and use cases for these agreements, despite the plain words of the FAR.  My contracting office never uses these two types of agreements, and I have no experience with them otherwise.  I have a weak intuition that they are, like fax machines and public notice boards in the lobby, vestiges of a past contracting age. 

Are they used routinely somewhere in federal contracting?  If so, please tell me more.  What are they used for?  Why an agreement instead of (among other things) a BPA, some indefinite contract, or one of the innumerable acquisition vehicles (GWACs, Federal Supply Schedules, federal-wide IDIQs, etc.) which cover nearly everything imaginable?  A concrete example or two may help me.

40 minutes ago, Voyager said:

a leader in a contracting office should voluntarily choose to permeate the office with the program office's mission

Agreed.  There is a goldilocks zone for mission-focus vs. technical focus when it comes to recruitment and retention.

Contracting has a lot of expert knowledge and procedures which are most effectively handled with a centralized and separated (from program) technical-focused contracting office.   The downside of centralization is that this type of office the particular mission doesn't matter that much, and in mission-driven federal agencies, that's a big opportunity cost.  I think of NASA.  'Join NASA and help build space telescopes!' is much more compelling than 'join NASA and audit cost-plus contracts!' On the other hand, many federal agencies aren't particularly mission-driven, it's just a job, and it's ridiculous to pretend otherwise, so this wouldn't work.   

The opposite - a program-centric or decentralized contracting office, your much closer to the program.  But two downsides.  First, as you state contracting needs to be a check on program, able to act independently and say no - hard to do to your best work friends and employer!  Second, contracting offices really must have some economy of scale and specialization.  

This is an evergreen debate in my particular contracting office.  In terms of recruitment and retention, I think the mission-focused approach is demonstrably more successful, but I have large doubts about whether we could actually do our jobs competently (job one: do not break the law, nor allow others to break the law!) were we less-centralized than we already are.  No obvious answer.  Smarter people than me have thought about this much more carefully than me, so there probably is an answer out there.

A story about deviations from the FAR.  I am unsure what is the moral of this story, but I take guess below.

HHS has, I think, three (maybe more?) deviations which change 52.212-5, one of which applies all the time.  If I understand how this works, then I'd expect all HHS contract to have clause 52.212-5 with at least one deviation, and some with 2+. 

I once did a hasty search for HHS combined s/s on sam.gov and found very few with any deviations for 52.212-5, and zero with more than one deviation.  

The letters/instructions and text of these HHS deviations, so far as I am aware, are found only behind a firewall, and not posted on any official HHS site which is publicly available.  

The deviations aren't included in HHS's own in-house clause library.  

• An uncharitable moral of this story, which I don't necessarily agree btw, is that this shows 1) HHS COs don't know or don't care about the deviations, and 2) HHS doesn't know or doesn't care that its 1102 workforce doesn't know or doesn't care about its deviations.  
• A more charitable moral to the story is that a typical HHS COs - with dozens to hundreds of actions per year - cannot possibly do everything they are supposed to do every time, so they make a trade-off, and skip some less important stuff like deviations.  HHS knows this but choses to look the other way.
• My take-away from this story is that HHS, at least (and probably many or most other civilian agencies), is overwhelmed, and can't deal with deviations - so, as a tool, deviations should probably only be used only as a last resort or when necessary.  

In software development world, agile pricing is related may be of interest here -it is sort of like FUP (which I have no experience with).  

3 hours ago, Voyager said:

Talk all you want about mentorship, but especially in contracting, agents do need to learn from written policy exactly what the regulations leave to agency discretion.  If an agent cannot actually read the policy, guidance, and instructions written down by policy writers because the writers are incompetently phrasing things, using parentheses that never close, or just listing jargon terms that do not even apply to the policy subject, then it creates chaos where order is demanded. 

The broken windows theory, applied to contracting.  A glaring and uncorrected error in policy tells the reader that policy is not to be taken literally or seriously.