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General.Zhukov

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Posts posted by General.Zhukov

  1. Yeah, this clause, which I've used at least a hundred times, sucks, now that I am reading it carefully.  Here is better....you listening FAR Council?

     

    Option to Extend the Period of Performance (Jul 2019)

    (a) The Government may  extend the period of performance of this contract through the unilateral exercise of options under this clause, if two conditions are met:

     1) The Government gives to the Contractor notice that the option has been exercised at least 5 days before the contract expires, and

     2) The Government gives to the Contractor preliminary written notice its intent at least 60 days before the contract expires.

    (b) If these two conditions are not met, the option may be exercised only through a bilateral contract modification (supplemental agreement).

    (c) The total period of performance of this contract, including all extensions, shall not exceed 60 months.

  2. 15 hours ago, Sunstrider said:

    1) Does the person providing preliminary notice have to be the CO?

    2) If the Government exercises the option via written notice "early", say 10 days prior to contract expiration, is said option exercise invalid??

    3) Why was paragraph b necessary in this clause? If a contract is extended, aren't existing terms and conditions in the conformed contract incorporated by default?

    1) Probably not.  I know that in practice, in the civilian agencies I am familiar with, the CO rarely sends out these preliminary notices.  A Contract Specialist or Admin usually sends the notice on behalf of the CO.  These folks might have some delegated CO authority or something though.  But it is 'intent'- its not binding.

    2) No, I don't think so.  I interpret that sentence as meaning 5 days is the minimum period between receipt of the option exercise and when the contractor is responsible for work (under the extended term).  I consider the 'within 5 days' statement a way of preventing this: The CO sends an option exercise at 11:58 PM the day the contract expires, and expects the contractors to show up at 8 AM the next day.  Could be wrong though.

    3) I think the intent of this sentence is to (indirectly) confirm that the clause can be used repeatedly to extend the term (up to the limit of para c).  The alternative would be an interpretation of the clause where the term can be extended only one time.  

  3. Need more info.  Without knowing the specifics, I can offer my really basic two-part test for approximating an answer to "can we tell them?"  Part one: Does telling them violate any regulations, laws, policies, guidance, etc?  Part two: Should you tell them - is telling them to our benefit?   

    Its pretty unlikely that you are prohibited from telling them the number of hours.  So its probably a question of should you tell them.

  4. 23 hours ago, Guardian said:

    Why not just place another call? 

    On your first point: Less effort for same result.

    In my agency and in my field (IT Services), options need perhaps 1/20 the effort of a new Call.  I may need two months to complete a new Call, while I can do an option exercise in a day or two.  Thus, we tend load Calls with options whenever we can.

     

     

     

  5. On 6/4/2019 at 12:59 PM, PepeTheFrog said:

    leave this VA office unless you want to become or remain a whiny employee suffering from arrested development

    if you're really that good, why do you want to beg your inferiors for scraps? take your superior skills, knowledge, personality, etc. elsewhere, where it will be appreciate

    FOIA is a very, very bad idea in this situation...yes, they will retaliate!

    don't fight your way into getting this job...that would be like suing someone to go on a date with you

     

    Follow this advice.

  6. I know this one because I do mostly IT services, which sometimes has a mix of exempt and non-exempt labor, and I primarily issue my It services as orders against IDIQ/IDC/GWACs.  So this issue come up. 

    Summary: In the IDIQ/IDC contracts I am familiar with, the SCA (I also use SCLS) determination at the order level is independent from whether the IDIQ/IDC is covered by the SCA.

    • IDIQ has SCA clauses, but orders may be exempt from the SCA - GSA's Schedule contracts.
    • IDIQ does NOT have SCA clauses, but orders may  still be subject to the SCA - GSA's GWACs (8(a) STARS II, Alliant, VETS2).

    In both cases, the ordering contracting officer  affirmatively determines that  this particular group of clauses is an exception to the usually flowdown per 52.216-18.    In the case of Schedule contracts (that have the SCA in them), the OCO is affirmatively determining the order is exempt.  In the case of the GWACs, the OCO is affirmately determining the order is NOT exempt, despite the base IDIQ having no mention of FAR 22.10 or its clauses.

    In the case of an IDIQ that does have the SCA language, but also has functional areas that are obviously exempt from the SCA (like OCONUS), I would probably limit making a determination to edge-case orders, where its unclear if the SCA applies or not.

    • An order that is entirely OCONUS services needn't bother with an SCLS exemption. 
    • On the flip side, an order that is self-evidently covered by the SCLS - janitorial services - shouldn't have to include the clauses since the SCLS is definitely flowing down from the IDIQ to the order.

     

     

  7. My two cents

    Short Version: a lot of analysis is lost in the overwhelming amount of contracting paperwork, documentation and procedures.  There is so much that you must do, you skip the stuff you should be doing.   

     

    Long Version: In my Department (HHS) a written AP is required for anything over the SAP (HHSAR 307.something), and the AP must follow FAR 7.105.  The HHS Acquisition Plan template has about 70 data fields to fill-in, for thousands of contract actions per year.   So a purchase of $400,000 of live mice has an AP that, in theory, considers Section 508.  A $400,000 purchase of commercial software has an AP that, in theory, considers subcontracting competition. 

    In practice, this stringent Acquisition Plan documentation requirement effectively negates Acquisition Planning. 

    If you are writing, or reading, or approving dozens (or hundreds) of Acquisition Plans per year, you are not giving them much attention or thought.   People tend to thoughtlessly skim past the actual strategic planning & analysis parts of Acquisition Planning - such as lease vs. buy for heavy machinery - along with junk parts of the Acquisition Plan.  

    In an organization with this type of process, you can figure out how many simple business/acquisition analysis are overlooked.

     

  8. A cautious response would state we can't possibly know the answer here without a lot more detail, a careful review of the contract itself, the administrative record, etc...however, when moonlighting as an anonymous internet poster with no stakes in any of this, I won't be cautious....

    • Defective specifications are a type of constructive change for which the Government is liable and the contractor entitled to some type of recovery (like an equitable adjustment).  I doubt that any term or condition like 'concurrent delay provision' somehow prohibits contractor recovery in event of constructive change.
    • What's more, there seems to be nothing concurrent about this delay.  As described,  only one party has hindered or delayed performance - its 100% due to the Government - so the provision doesn't apply.

    Therefore does not trump.

    That's my 5 minute, shady-tree-contract-lawyer answer.    

    More helpfully, I'd recommend a careful reading of Contract Attorney's Deskbook, Volume 2, Chapter 21 - Contract Changes. 

     

  9. Example

    June - Issue order #1 for 1,000 term software licenses from SEWP.  Period of Performance of one year ending July 31, 2020.  Licenses $1/Month  so $12,000 FFP.

    Order has clause 52.217-6/7 for, say, up to 500 additional licenses.  All additional licenses co-term on July 31, 2020 and licenses cost is pro-rated per month.

    July - Hey, we forgot about the American Samoa field office, we need another 50 licenses starting August 1st.

    Issue modification to order #1, adding 50 licenses for $550.  (50 licenses x $1/month x 11 months)

    Now you have only one order, #1, even though you've purchased the licenses two times.

    June of Next Year - Issue order #2 for 1,050 term licenses from SEWP.

     

    There are better ways to buy software, but if your agency is like mine and tries to use notionally competitive FFP GWAC orders for all IT, then I've found this method to be beneficial.

    1) Easier and faster to do an option than a new order. 

    2) Easier to track and administrate if all the software is on one contract vehicle.

     

     

     

  10. Most (maybe all?) federal agencies have a legislative mandate to get a handle on their software acquisition.  The MEGABYTE Act in particular requires agencies to implement a software management process that is under the CIO (not Contracting).  What you are describing is a failure of software management.  This is IT's problem, and they should fix it.

    Limited to contracting:

    1) https://www.sewp.nasa.gov/catalogs.shtml - sorta like a BPA, but better.  

    2) If you must by software through  highly-specified GSA/SEWP orders, write-in as much flexibility as possible.  For example, Option for Additional Quantity, P-Card payment authorized, etc.

    3) A good source of info and best practices for enterprise software procurement - https://www.esi.mil/Resources.aspx

    4) Whenever possible, I try to consolidate a particular software license into a single order and co-term the license PoP.  Use modifications to add more software.  Makes administration a lot easier.

     

  11. Scenario

    Using  FAR 16.505 ordering procedures with exception to Fair Opportunity - Brand Name Only.  Estimated value is $100,000. 

    It seems that FAR 16.505 (a) (4) states that a Brand Name Justification must be posted if the value is over $30,000.

    However, FAR 16.505 (b) (2) (ii) states an exception to fair opportunity must be posted if the value is over the Simplified Acquisition Threshold ($250K for me).

    I take this to mean - For amounts between $30K - $250K, JEFO is posted if, and only if,  its Brand Name Justification.  No need to post for any other type of JEFO.

    Questions

    Is this correct? 

    If so, why would Brand Name Justifications have a much lower public notice threshold than any other type of exception to fair opportunity?

     

    Refs

    FAR 16.505 Ordering (a) (4)

    • (ii) Requirements for use of items peculiar to one manufacturer shall be justified and approved using the format(s) and requirements from paragraphs (b)(2)(ii)(A), (B), and (C).
    • (iii) (A) For an order in excess of $30,000, the contracting officer shall ...

    FAR 16.505 Ordering (b) (2) (ii) (D) 

     (1) Except as provided in paragraph (b)(2)(ii)(D)(5) of this section, within 14 days after placing an order exceeding the simplified acquisition threshold that does not provide for fair opportunity in accordance with 16.505(b), the contract officer shall - (i) Publish a notice in accordance with 5.301; and (ii) Make publicly available the justification required at of this section.
  12. On 6/6/2019 at 4:10 PM, harry_74 said:

    If one of the partners in a Joint Venture holds a GSA Schedule, can the JV itself use the partner's GSA Schedule to submit a proposal as prime? The JV is also composed of two companies who are in the All Small Mentor Protege program together. The GSA Schedule contract we want to submit a proposal for is an 8(a) set-aside. 

    For example: 

    Company 1: Joint venture, small business, does not hold GSA Schedule. 

    Company 2: Holds GSA Schedule, is a small business, is not 8(a), is the Mentor. 

    Company 3: Does not hold GSA Schedule, is a small business, is 8(a), is the Protege. 

    Basically, the heart of my question is does the JV itself have the ability to submit a proposal on the 8(a) contract through the Mentor's GSA Schedule, or would the JV itself have to be the legal entity who holds the GSA Schedule to submit a proposal

    Not an expert, not a lawyer, but this question is weirdly close to something that came up a in my office a few weeks ago.  So check with people who actually know what they are talking about, such as lawyers, SBA, etc.

    Answer: No.  The prime contractor must hold the GSA Schedule (aka, have an IDIQ with GSA).  Otherwise, there is no contract against which the order can be placed.

  13. I'm in agreement with the other posters.    

    The office culture and the type of contracting they do matters a great deal.  To do the cool stuff you first have to have know how to do the boring stuff.    You don't like doing the boring stuff, neither does your boss.  And guess who assigns the work?  Sorta like a Seaman's job vs a Chief Petty Officer.

    Personally, I find I am satisfied with the amount of cool stuff I do on a day to day basis.  I work for a small agency, which means we 1102s can't be too specialized.  And I only work with IT, which is often complicated and employs a lot of different contracting techniques.  So lots of novelty. 

    Today's Backlog as of now. I'll probably only do two or three of these today:

    • For a single-award BPA for IT services, tell the contractor we all agree, negotiations are over, and prepare the award (boring)
    • For another single-award BPA for IT services, finish updating the Task Order term and conditions, send RFP to contractor.  We are expecting contentious negotiations so I am being very deliberate (not boring).
    • Deal with a super-difficult customer who doesn't know what they want, but knows they want it now, and knows how much it will cost, so what's the hold up? (not boring).
    • Review and approve some option exercises and administrative modifications (boring)
    • Finish writing an 8(a) Offering Letter (boring)
    • Update my statuses (very boring).
    • Figure out what to do about a contractor that has unfinished work, that the PM doesn't like, and whose entire team working on my task was recently poached by a competitor (not boring).
    •  Send option notices (the most boring possible thing in the world).

     

  14. On 4/25/2019 at 11:41 AM, ConfusedIntern said:

    a monthly fee for use for access to a secure Network

    I do IT contracting, this classification issue comes up a lot (esp. in combination with NAICS codes and Small Business Set-Asides).

    When in doubt, I try to use this simple analysis, and try to avoid going down the product vs. service vs. 'software' rabbit-hole.

    1) FAR 2: “Supplies” means all property.  So, the question is are we buying property in any sense of the word?  In your case, no, probably not.  

    2)  Usually 'access to' means it's a service.  Every moment you don't use that access, its not consumed and gone forever, which is a key trait of services.

    3) A Subscription can be sub-set of Service.  Supporting evidence: In the PSC taxonomy, subscriptions are sprinkled throughout the D3XX group. 

    Probably a Service.

  15. 4 hours ago, formerfed said:

    He also said he doesn’t remember seeing or hearing about women owned and veteran owned small business sole source contracts being synopsized so he’s assuming agencies are not doing it.  Based on that he feels the consensus is no need to synopsized. 

    We don't.  A cursory glance at FBO suggests nobody does.

     

    EDWOSB is a sub-set of WOSB.  See FAR 19.15

    FAR 6.302-5 -- Authorized or Required by Statute (b) (7) therefore includes EDWOSB.

    FAR 5.202 (a)(4) - Synopsis Exceptions -  The proposed contract action is expressly authorized or required by a statute therefore includes EDWOSB.

    EDWOSB is exempt from synopsis.

  16. I work in Department of Health and Human Services (HHS).  The HHSAR covers Accessibility/Section 508 using language that I am increasingly convinced I don't understand.  Two part question.

    HHSAR 339

    (1) When conducting a procurement and employing the best value continuum, the solicitation shall include a separate technical evaluation factor developed by the contracting officer, requiring activity, and the Operating Division (OPDIV) Section 508 Official or designee.

    • The word "continuum" occurs only once in the FAR,  in 15.101.  I take HHSAR 339 (1) to mean that for any IT procurement either
      • If using FAR 15 procedures,  there must be a separate Accessibility/508 evaluation factor or 
      • If using 'best value,' there must be a separate Accessibility/508 evaluation factor.   And everything is 'best value.'

     

    • So far as I know, nobody in HHS actually follows either of these interpretations (check FBO if you don't believe me).  I've always considered this fact to be a case of ignoring an unreasonable regulation, but maybe I am misinterpreting the regs.  What do you think here?

    (2) At a minimum, solicitations for supplies and services shall require the submission of a Section 508 Product Assessment Template (See http://www.hhs.gov/web/508 for the template). Solicitations for services shall include any other pertinent information that the contracting officer deems necessary to evaluate the offeror's ability to meet the applicable Section 508 accessibility standards.

     

    A colleague recently was purchasing a RAM upgrade for some of our servers.  Along with the RAM itself, installation services and add-on warranty + maintenance.  She has found herself in the absurd situation of being told she must have a section 508 Product Assessment Template (PAT) for this purchase. 

    She has asked me: A PAT for what?    I have no answer.  For RAM, which is an expensive hunk of metal and plastic? For installation services?  For warranty and maintenance - of RAM?  The warranty and maintenance is for the whole server, not some sub-component of it.  The server (and indeed the whole server farm) already has a comprehensive maintenance contract that is indeed 508 compliant. 

    • Does the HHSAR requirement for a PAT even make sense here?  If so, how?
  17. On 4/9/2019 at 4:44 PM, lawyergirl said:

    !  Does anyone happen to know whether government agencies can leverage GSA Schedule 70 for IT Services (in particular) as a Best-in-class vehicle? 

    No.  Schedule 70 is Best in Class for Hardware and Software not Services.

    BIC IT Services:

    • 8(a) STARS
    • Alliant
    • NITAAC CIO-SP3
    • VETS 2

    There are many scenarios where none of these BIC are appropriate for IT Services.

     

    • There is a lower-tier but better 'solution' (contract vehicle)
    • Requirement out of scope of all of these
    • Pool of Vendors Not Appropriate or Sufficient
    • Indefinite Contract or BPA
    • Non-Commercial
  18. On 4/12/2019 at 5:24 PM, formerfed said:

    I’ll limit my response to the acquisition/contracting function.  The bottom line of organizational performance is accomplishing the agency mission.  Major acquisitions may do that directly.  Others do it by directly support programs or indirectly.  Several measurements can apply; some directly and others indirectly.  Like it or not, customer satisfaction is a key one.  So is industry input.  Items like responsiveness, cost savings, avoidance of and successful protest outcomes, senior management perspective including general counsel,  and benchmarking to comparable organizations are good indicators.  More objective metrics like PALT and cost avoidance also are good.  

    Poor performing organizations sit back and are reactive.  They start procurements when a requisition is received.  The best ones are partnering with program offices and their staff are in demand helping with planning and strategizing.  The good ones analyze buy and anticipate and react in advance.

    I agree.  Despite what I wrote about how performance is generally tough to measure for government, I don't think acquisition is particularly difficult (with some exceptions).  All the things you list are pretty good measures of outcomes.  

     

     

  19. As an adendnum - 

    15 minutes ago, PepeTheFrog said:

    find as many closer to (A) as possible, and most importantly, exclude and discriminate against people who are closer to (B).

     

    Follow up to what I just posted.

    From the same body of research, there is a network effect (increasing return) with high-performers that backs up this intuition.  Consider an organization with three teams made up of A & B.

    Org 1: ABB ABB ABB

    Org 2: AAA BBB BBB

    Org 2 will outperform Org 1, because the 'A Team.'   

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