General.Zhukov

On 11/28/2019 at 12:27 PM, Me of Little Faith said:

change order process

This is a clue.  My guess is that they are trying to price the change (maybe an equitable adjustment?) and can't figure out how to do that without more granular pricing data. 

16 hours ago, Jacques said:

Disputes clause [incorporated by reference via paragraph (d) of the clause at FAR 52.212-4] is right on the money IMHO.

Thanks!

On 11/8/2019 at 3:52 PM, joel hoffman said:

 Unless you own a Maserati, Corvette or the  like , a brake job should not cost $800 to begin with, 

Off topic: Companies will charge as much as they think customers will pay.  Last year I found myself getting a tour of a McLaren 570GT by its super-enthusiastic owner.  Brakes had recently been replaced, at cost north of $2,000.  It may well have been $2,000 just for labor and testing.  In any event, it was insanely expensive.

On topic: Inspection & Acceptance in the contract is mostly covered by 52.212-4, with a few additional caveats.  The AoA was done in very close coordination with the COR & PM,  and the COR took the AoA, modified it, and presented to higher-up.  This took somewhere between 1 and 5 weeks.  I consider that government acceptance.

Thanks for the advice.  I am finding the Contract Lawyers Handbook and  Contract Pricing Reference Guides to be very helpful resources.  

Asking the SBA to step in is also quality advice.  They want to give me what I need in terms of information, but its been tough going, and it would be great if an outside adviser could give them some help on this.

Regarding the clause and authority to do an REA....

This is a commercial contract, so it has 52.212-4 and the paragraph about changes by mutual consent.  So, that is that in terms of clauses.

In terms of "Should the contractor be compensated for event X?" - that is what I struggle with, especially when its fixed price and there isn't any cost data.

This is particularly true when it comes to this contract. 

Contractor does research, submits an AoA to PM.  PM takes it up the chain, and thereby implicitly accepting it, and the higher-ups reject the AoA.   Contractor revises AoA, re-submits, kicked-back again.  Third time is approved.  At the same time, internal Government issues lead to delays where the contractor needs guidance from the GVT that is not forthcoming so they sit on their hands for a while.

I have mixed intuitions about whether the contractor did either the right or the legal thing by doing the re-work rather than refusing to work further once the initial deliverable was accepted. 

In any event, thanks again for the advice.

I have a Request for Equitable Adjustment for a FFP Commercial Contract for IT Services, and its killing me.   Two related questions. 

1) How to price EA for FFP when I have no cost information except some really simple info (1 slide, containing $/month) sent to me by contractor? Our agency has no cost/price analysts or handy support staff, and minimal experience with Equitable Adjustments so far as I can tell.

2) Are there, out there on the interwebs, any good examples of actual or theoretical Equitable Adjustments for FFP?

Background: 

Direct 8(a) within a special IT program.  Objective of the contract was to support Business Case Analysis for replacement of an IT system, and then to prototype one or more of the selected alternatives.  Fixed price.  About $1MM over 1 Year.  There has been about 6 months of delay for at least 4 discreet reasons, not all of which is the GVT fault.   

1) Performance started late due to on-boarding and security clearance issues.  Probably not our fault? ~ 1 Month.

2)  GVT shutdown.  Our fault. 1 Month.

3) Requirements gathering 'more complicated' than anticipated.  Probably not our fault? 1 Month. 

4) The Analysis of Alternatives was kicked back by the GVT at least twice for very questionable reasons and not within a reasonable time-period.  Our fault.   3 Months.

1 hour ago, FAR-flung 1102 said:

A Note About Terms:

1) Justification for Other Than Full and Open Competition (FAR 15)

2) Justification for Exception to Fair Opportunity (FAR 16.5)

3) Sole Source Justification (FAR 13.5?)

4) Limited Source Justification (FAR 8.4)

5) Brand Name Justification (scattered throughout the FAR)

6) Determination and Finding?

7) Probably other ones too? (Maybe FAR 14 has its own?)

How's this for acquisition streamlining, just  use option #1 for everything.  Over SAT = Use FAR 6/15 Rules.  Under SAT = Use FAR 13 Rules.  The end.

Caveat: Not an expert, so not the definitive answer: 

1 hour ago, Constricting Officer said:

Question. Did FASA create a SS authority under SAT, that doesn't have to be referenced back to U.S.C.

Yes. A FAR 13 'Sole Source; (FAR 13.106-1 (b) ) does not have any specific authority in U.S.C.   

In addition, the same is true for FAR 13.5.  Under FAR 13.5, you use the 1) format, 2) notice and 3) approval from FAR 6.  That is all.  You do NOT cite any FAR 6.3 sole-source authority.  The authority for (almost) all source-sources under FAR 13 is FAR 13 itself - ''CO determines only one source is reasonably available'.  

I caution against over-relying on FAR 15 for this, unless you are sure FAR 15 procedures were used.  The vast majority of contracts do not use FAR 15 procedures (in HHS, my best estimate is less than 4% of new contract actions are straight FAR 15).

FAR 3.104 is worth a read.  As a CO, its very unclear to me what exactly can and cannot be disclosed in a debrief - other than if you guess wrong and disclose too much its instant death. 

Google "DTIC"

Get stuff like this 

Analysis of Alternatives for Out- and Over-Size Strategic Airlift: Reliability and Cost Analyses

https://apps.dtic.mil/dtic/tr/fulltext/u2/b256383.pdf

It really varies, contracting is full of tiny little niches that don't have that much in common with each other:

Topics I'm Interested In

• Process Improvement & Streamlining
• Source Selection for Services excluding FAR 15
• IT System Acquisition
• Innovation 
• Metrics and Performance Measurement

Don't Care

• Anything Cost Plus
• DoD stuff, like OTA
• FAR 31
• Construction
• Sealed Bidding
• Buzzy-Buzz-Buzz: AI / Blockchain / Machine Learning / Platforms / Robotic Process Automation / etc.
• Anything that applies only to FAR 15

I have no idea about pricing other than I agree that it its a tough one, but here is another ossible source for comparison:

In HHS, the Indian Health Services (IHS) does contracting for direct provisioning of health care over a very wide area.  IHS is tiny, so its contracting is a lot easier to understand than, say, the VA.

13 hours ago, joel hoffman said:

I was really being serious above...

The inclusion of clauses by reference may well have been (somewhat) practical for the purpose of saving paper,  publishing and mailing costs and filing space, when printing,  mailing and paper filing of solicitations and contracts are/were the standard methods. 

However, with electronic contracting methods, those reasons are largely inapplicable. 

It shouldn’t take a law clerk or paralegal to find all the clauses in the versions that were applicable at the time of the solicitation and award. They should be easily and immediately available for anyone to read and keep current with all the applicable contract requirements. 

To further hijack this thread----

The IBR rule in the FAR Clause Matrix is an anachronism.   In practice, only the 52.252 clauses must be in full text.   Nothing else.  Especially not 52.212-3.

I typically maximize IBR for commercial orders, simplified, etc.  There is something embarrassing about issuing a 17-page purchase order for a copier.  And the contractual requirements in those clauses are very, very rarely relevant post-award.    Its unlikely Convict Labor will come up with that  copier.  More complex or risk contracts, FAR 15 contracts, are different.  I could see going crazy with the full text for those. 

yes, appropriate.

However, conference calls are iffy.  I would check with the vendors about it before proceeding.  Sometimes they are reluctant to say anything within earshot of their competitors.  Even their presence on the call- identifying themselves as an interested party - might be something they want to keep private.  

On 8/28/2019 at 12:11 PM, formerfed said:

So your solution in this case is require A and B to propose the same number of hours?  Then Offeror B gets selected because of lower hourly rates?

Well, if it were me I wouldn't put out an RFQ like that in the first place.  But for vaguely defined requirements, I usually have non-cost/price factors be much more important.  If I think the prices used for award do not accurately represent what actual costs are likely to be, I discount them in my decision.  So in this case, I would likely select Offeror A regardless of whether the GVT or offerors pick the hours. 

On 8/28/2019 at 12:11 PM, formerfed said:

If a program office, with a COs help, can’t define a need, maybe they shouldn’t be contracting for the work.  How do they gauge whether work is done satisfactory, for example?

In my field of IT services I see this very frequently.  Its not due to anyone's failure to do their job.  Its often the case that neither GVT nor contractor can with much confidence estimate the particular outcomes, schedule or overall cost of an IT project.   

There is a whole contracting cottage-industry devoted to solving this problem - Agile, Digital Services, 18F, Kessel Run, DIB's very long white paper about DoD software, etc.   

12 hours ago, formerfed said:

Your approach of requiring all quoters to quote against the same level of effort is different from the norm.  Generally the government provides its estimate and quoters either uses that or is free to quote something different.  When the LOE differs from the estimate, they should explain that in their approach.  

Just curious, why do it that way?

When the requirement is poorly defined, offerors are just guessing at the LOE in their approach.  If its for poorly-defined labor-hour work, then offerors are both guessing about the LOE and their guess isn't binding in any meaningful way - which is a huge incentive to low-ball.  During evaluation, the CO has to deal with these theoretically low-priced offers through trade-offs or price realism.   Price realism analysis is a waste of time - we don't really know if any offeror's LOE is, in fact, realistic.  Trade-offs then ends up ironically comparing these prices as if they mean something.

Example

RFQ: Paint my house.  I don't know how many square feet it is.  No, you can't do a site survey.  No, I don't have any pictures of it. No, you can't ask me any questions. I'll pay by the hour.  I think it will take 20 hours.  You have to write me a 10 page description of how you will paint my house, including how many hours it will take you and your hourly rate.  By the way, It doesn't matter how many hours you propose, since I'll just pay you until its done.

Offeror A: I am a professional house-painter with 10 years experience.  I propose 20 hours, at $20/hr. "$400." 

Offeror B: I painted a few houses last summer.  I propose 15 hours at $20/hr. "$300" 

Contracting Officer trying to write a source selection decision that justifies why Offeror A is worth the entirely-notional 33% premium in price: I need to update my usajobs profile.

There are many methods to avoid this situation, but probably the lowest-effort method is fixed labor categories and hours. 

21 hours ago, Kaseybaja said:

This indicates a cost analysis would be required for a fixed price contract when price analysis is not able to be determined.

Yes I suppose, but its not a big deal.

The objective of analysis is to ensure the final price is fair and reasonable.  There are  seven types of analysis listed in FAR 15, cost and price being just two of them.  This analysis is required but most of the times its actually much more simple and common-sense than it appears in FAR 15.

Price Analysis. Say you want to buy some software.  The company sells their software on their website for $10.    You ask your friend who bought the same thing last week.  She says she also paid $10.  You have just determined the firm-fixed price to be fair and reasonable through price analysis per FAR 15.404 (b) (2) (ii)  and (iv).   

Cost Analysis. You want your house painted.  A painter says he'll do it for $8,000.  $5,000 labor and $3,000 paint.  That seems like way to much $ for paint for your 2,000 sf house .   You estimated you'd need maybe 10 - 20 gallons and the very best paint costs $80 a gallon.   You were expecting at most $1,600 for paint.  Too expensive.  You have just determined the firm-fixed price to not be fair nor reasonable thorough cost analysis per FAR 15.404(c)(2)(i).

16 hours ago, joel hoffman said:

Proposed  key personnel (define the positions) with a contract clause that  makes the qualifications of those proposed and evaluated for award the new minimum for proposed substitutions if they exceed any RFP minimums and substitutions. Substitutions are subject to government approval . If you propose the A team, you must provide an A-team,  not a B or C-team as substitutes. EDIT: use a standardized format for each key personnel submission. 

I am definitely stealing this idea.

On 8/15/2019 at 8:07 PM, formerfed said:

Better, but you are still requesting information with little predictive value.

I know.  Its incremental improvement in the face of constraints.  There is a whole team of folks who need to approve of evaluation methodology.  Evaluators who have to understand what they are doing.  I am no expert in the subject, nor is the program office particularly knowledgeable about contracting.  Institutional risk-aversion (not necessarily a bad thing).  Etc.

I would actually really be interested if there is any research about the connection between source selection methodology and contract performance. Such as - what information can we get pre-award that predicts good performance.   I only know of folksy wisdom about past performance and competition.  I am joking, but not really - is there is any actual high-quality research on the subject?

20 minutes ago, General.Zhukov said:

Caveat: I do IT services, and my informal method may not work for different types of contracting - like supplies with incidental services like delivery or maintenance, services covered by SCLS, construction, etc. 

The informal method I use

• If the contractor shall be physically present at a gvt-facility, at any time to do work (even briefly, like for meetings) , to be compliant with the contract, then the work is at least partially on-site.  For my contracts, this is very important since requiring any type of on-site will probably limit competition to the local area, or we will need to consider travel costs (ugh).   

• If the contractor being on-site at any time is recommended, or encouraged, or a good business practice, but not a matter of compliance - then I do not consider it on-site.  In my work, admin & management stuff like on-site meetings are almost always this category.  

• Edge cases I'm not sure about - If our solicitation or contract is silent on the matter, but

                              the contractor's proposal states they will be sometimes on-site.

                              the requirement cannot be met without the contractor being on-site at some point.

Edit: Based on what you've written, if I were the CO I'd say your performance is at least partially on-site and the clauses apply if that's the only criteria. 

My common sense and vague familiarity with dangerous stuff (I dabbled in CBRN and blowing stuff up in the Army)  is that whomever is responsible for the payload - presumably the thing with bad stuff in it that is the subject of the clauses - does the environmental & safety compliance work, not some  researchers.   

21 hours ago, mtclymer said:

QUESTION 1:  Does anyone have some familiarity with how NASA or the Government, generally defines partial performance that I could refer to?  I can't find anything in the FAR or NFS and I've grappled with this for years with different answers from different government COs. 

One time I came across in NASA procedures a distinction between visiting for work and performance, but sadly, did not realize the gold I had found and did not make note of it.  

QUESTION 2:  Is it feasible that I request we address the definition of partial performance in the contract (H clause I assume)?

 

Caveat: I do IT services, and my informal method may not work for different types of contracting - like supplies with incidental services like delivery or maintenance, services covered by SCLS, construction, etc. 

The informal method I use

• If the contractor shall be physically present at a gvt-facility, at any time to do work (even briefly, like for meetings) , to be compliant with the contract, then the work is at least partially on-site.  For my contracts, this is very important since requiring any type of on-site will probably limit competition to the local area, or we will need to consider travel costs (ugh).

• If the contractor being on-site at any time is recommended, or encouraged, or a good business practice, but not a matter of compliance - then I do not consider it on-site.

• Edge cases I'm not sure about - If our solicitation or contract is silent on the matter, but

                              the contractor's proposal states they will be sometimes on-site.

                              the requirement cannot be met without the contractor being on-site at some point.

Fun fact for those of you who like to get down into the FAR weeds.

• GSA's Schedules are by definition commercial, at least Schedule 70. 
• GSA recently added 'Order Level Materials' (OLM) as a feature. Order Level Materials procedures may be used to purchase OLM products or services to support delivery orders (products) or task orders (services) under authorized GSA Schedules.
• OLM must be a separate Time & Material line item on the order.

I take this to mean GSA approves of me issuing a commercial Schedule 70 order for commercial supplies, with a T&M line for OLM which are commercial supplies.  Implying GSA is cool with use of T&M for commercial supplies.

19 hours ago, Retreadfed said:

General, do you read 12.207 as permitting the use of a T&M contract to acquire commercial items that are not services?

No, the plain language of the FAR excludes commercial supplies from T&M contracts.  In my personal opinion is that T&M  is of little use (or maybe entirely useless) for conventional supply procurements, but I don't see the harm.  

However, my intuition is that the original poster's contracting office probably doesn't know or doesn't care about this.  High volume contracting shops aren't concerned with the nuances of the FAR, particularly if it makes the customer happy, isn't obviously unethical or illegal, and isn't audited.

I think this type of thing is the norm.  My Department (HHS) has a departmental clause that, I am convinced, is universally ignored. 

18 hours ago, Deaner said:

I don't know that i'm smart enough to develop an algorithm, but i could probably come up with something for specific acquisitions. like small biz set-aside construction using sealed bid and get close. 

I just picked three random ones to test it out. If you knew every clause/provision you would want to look at in a specific acq, maybe reoccurring ones, you could probably make it dummy proof. Maybe just stash the individual clause/provision files in a folder and share the master document that pulls the clauses/provisions. 

The link will expire in 24 hours, but if you click it and then click download at the bottom you'll see what i'm getting at. 

https://s.amsu.ng/KHo7WJU3YgsN

This has been done.  The Army had a pretty slick clause picker called Clause Logic Service, but sadly its gone now, or behind a firewall. 

• I am using DHS's concept of Prior Experience instead of the usual Relevant Experience or Past Performance.   https://hallways.cap.gsa.gov/app/#/doclib?document=17951

• For a agile software development RFQ my instructions are for offerors to answer our questions, rather than have them write a so-called technical/management approach.  Questions (slightly modified here) are:

1.       What is your management process for this order, including working with the Product Manager, COR, and End Users to capture and size user stories, prioritize, and work-off the product backlog?

3.       What is your definition of done?

5.       What is your anticipated velocity?

6.       What is your quality management plan for [something]

8.       How do you plan on allocating work between the teams, particularly between [X] & [Y]?

Page Limit: 5 Pages.

23 hours ago, ShaunaMSACM said:

The difference between program/project managers and seasoned contracts managers from a "best practices" perspective. 

a solid relationship/lines of communication between a seasoned contracts manager and the contracting officer is as equally worth its "weight in gold"  to optimal contract success as it is between a PM and the COR.

 

• PM - Jack of all trades.  CM - technical expert.

Example of Why Contracting Technical Expertise Matters:

The contract says work is performed on-site and it has been, but due to a long-planned facility repair the COR didn't know about, the building won't have enough space starting next month.  The COR is saying most of the team will have to work either at a contractor-facility, or a different GVT building 15 miles away.  What are your rights here?  The PM won't know, but a good CM will.

• Contracting Officers have the power to make life miserable for the contractor, so know your CO and be on good terms with them.  That is, or should be, the job of the CM. 

Example of the difference:

CM: Why are my invoices being rejected? 

Friendly CO:  Let's find out why, and what to do about it. 

A not-friendly CO: Invoices are non-compliant with the Section G. Invoicing Instructions, and/or FAR Clause 52. 212-4.  Submit a trouble ticket to the Payment Office.