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Posts posted by General.Zhukov

  1. Quote

    We can distinguish here various levels of performance: inputs (processes, what an agency does), outputs (its immediate products), and social benefits and costs (what happens as the result of citizens and clients doing that).

    Agreeing upon a simple set of performance measures is a chronic difficulty in public programs. Because public programs are established through a political process, they usually emerge as compromises, embodying multiple, often competing goals. And after a program is established, multiple stakeholders—the executive, the legislature, the bureaucracy, interest groups—continue to disagree about both broad program goals and operationally useful measures of performance toward those goals (e.g., Wilson, 1991, Chaps. 6 and 13). 

    Some observers of government provision argue that government is specifically assigned the tasks for which goals are amorphous or difficult to measure (Wilson, 1991; Prendergast, 2003).

    One of the dudes that wrote this taught in my grad school.  Also in grad school, I dabbled in public-sector performance measurement & management.  Even if you stick to just operational performance (excluding social net benefit), 'performance' can be difficult to meaningfully define and measure for the public sector.

    That said, some organizations perform better than others, even if its hard to quantify exactly why or how (when in doubt, the reason is 'leadership.'). 

  2. 3 hours ago, 2FARGone said:

    Looking for any insight into choosing the correct NAICS code for purchasing data/information and accessing it electronically (i.e. through a downloadable link). Specifically, my customer wants to purchase datasets, which are then used in his analysis and modeling efforts. I believe the two (2) applicable NAICS codes could be 518210 - Data Processing, Hosting, and Related Services - and 511210 - Software Publishers. NAICS code 518210 is described as "providing access to software for clients from a central host site," among other services. NAICS code 511210 services namely "carry out operations necessary for producing and distributing computer software, such as designing, providing documentation, assisting in installation, and providing support services to software purchasers."

    The significance of choosing between the two NAICS codes is that each has a different small business size standard, so it would be great to know which code is more "applicable," if possible. After looking on FBO, there does not seem to be a consistent application of one or the other.

    Any guidance would be greatly appreciated.  Thank you!

    The sale of data and access to data is not something that is usually classified 'by industry.'  In literally any industry you can think of, someone is collecting and then selling data about that industry.  Here is some data you can buy: What kids eat for breakfast in 2007, how many cars are in the parking lot at Target on Sundays, satellite maps of northern Kazakhstan, Getty images in HD, the current location & destination of cargo ships carrying phosphorus, what's trending on Twitter at this exact instant (this last one, I've been told, is shockingly expensive since the main buyers are loaded hedge funds feeding their machines) - this is all data you can purchase and access electronically.  No common NAICS code. Its rather the content of the data that drives the determination.

    That said - here is my guidance

    Identify some sources of two types.   Acquisition vehicles that can be used for the procurement.  Companies that do this type of data business.

    1) Most acquisition vehicles (like the FSS, GWACs, large government-wide IDCs) tell you what NAICS code you will be using - and that is your answer.

    2) Companies sell what you want to buy - look up what NAICS codes they use (like on sam.gov).  This may not be that helpful though, because many companies have lots and lots of NAICS codes to cover all their bases, especially the 51 series.  If you really want to get down into the weeds, contact these sources and ask them exactly this question.  They will give you an answer.  This is time consuming, but my be helpful if you have to justify your decision.

    Alternate: If the PSC is known, use the PSC-NAICS crosswalk.  Which will probably identify 518210 BTW.


  3. 16 hours ago, ji20874 said:


    Do you take care to compare services furnished to the Government to supplies furnished to the Government?  Just because it is service work doesn’t mean it must be counted in the services column for comparison.  So don’t put all service work in the services column — only services that are furnished to the Government.

    I don't know what that means.  What does it mean?


    4 hours ago, Constricting Officer said:

    Section 14d13 and 29 CFR 4.132 clearly state that the SCA’s applicability for a contract that contains both services and supplies is based on the “principal purpose” or “the most important end to be obtained.”

    Dollar value is not consulted for applicability.


    My agencies lawyers and the SBA have acted as if dollar value does matter when determining if something is a supply or service for the purpose of applying the non-manufacture rule.  Not the same thing as the SCA, but close .

    I classified something as a supply, although the majority of the expected cost was service in support of that supply.  So I said the NMR applied.  Threat of protest.  Legal review.  SBA involved.  Ultimately, it was reclassified as service, so no NMR.  That SB knew what he was doing, he won.

    Fun Fact:  In that case the PSC of record was the key thing - that is what determines supply or service.  And you can only pick one.   I've been doing this for years and have only a vague idea of what most of the IT services PSC mean or how to classify stuff.  Nobody knows.  Once, for a presentation on how arbitrary assignment of PSC actually is, I ran a query on FPDS-NG for a particular brand of software and came back with something like eight different PSC for the same thing.  Some supplies, some services. This software was GIS,  and someone had heroically classified it as aerial photographic services.  Which isn't necessarily wrong.


  5. 3 hours ago, jdm843 said:

    BOTTOM LINE: I've nearly concluded that FAR Subpart 16.5 may be the applicable regulation and not FAR Subpart 6.3, and so a FAR 16.505(b )(2) Fair Opportunity Exception would be required instead of a FAR 6.303 Justification

    #1 Yes.  FAR 16, not 6.  This is a Brand Name Justification, which is different from (although closely related to) a Fair Opportunity Exception.   BNJ is covered  FAR 16.505 (a), while Fair Opportunity is FAR 16.505 (b). Brand Name limits competition with regards to a product, which isn't the same as limiting competition for potential sources.  

    On NASA SEWP, for example, limiting competition to the brand name Oracle still provides Fair Opportunity, since many SEWP contract-holders sell Oracle software.   So if you want Oracle and only Oracle you need a BNJ but not a JEFO.  

    Regarding comment #2, my take is that IDCs have *a lot* of diversity, so mandating a notice of intent may not make any sense for a particular IDC, so its not required.  However, posting such notice, while not required,  is often a good idea.  Like when the JEFO approval authority tells you that your justification will not be approved without evidence of industry feedback.


  6. The FAR has little to say about source selection procedures outside of FAR 14 & 15.  What is said is unclear. So, there isn't much FAR-level guidance about the idea of 'technical evaluation.'  My civilian Agency and Department have no additional guidance on what is, or how to do, technical evaluations.  So time to poll the audience.

    First - my quick dirty definition of  'technical evaluation.' The part of evaluation when someone other than the Contracting Officer assesses the extent to which offers meet Government need exclusively on a technical basis, without accounting for cost/price, past performance, or other considerations.  This someone is almost always the customer, or their representative from outside Contracting.


    1a) Is a technical evaluation by folks other than the CO ever required?  Not as a matter of following best practices or sound professional judgement - but required?  I am not sure.

    1b)  Assuming a technical evaluation is done (FAR 13, no source selection plan, etc.), when would it need to be documented separately?  Wouldn't the CO's written basis of award suffice?

    2) Are there any circumstances when a technical evaluation  must be conducted separate from a cost/price analysis - when technical evaluators do not have pricing information about the stuff they are evaluating?  I am pretty sure that answer is no, as implied by FAR  15.305 (a) (4).

    3) How about circumstances when the technical evaluation should be done separately, without the technical team having pricing information?  Do you do this?

  7.  DHS has a guide about an advisory down-select that, in my opinion, elegantly deals with the price issue.  

    Offerors are notified of the findings at each step, and are advised - but not required - to proceed or drop-out.  


    (a) The Government intends to conduct the evaluation and selection process in two (2) Steps:

    (1) Step 1 - Advisory. Factor 1 will be evaluated in this step. Each Offeror will receive an Advisory Notification. The Advisory Notification will inform the Offeror of:

     (i) the basis of the Government advisory notice; and

     (ii) either that it will be invited to participate in Step 2 or, based on the information submitted, that it is unlikely to be a viable competitor with the basis for that opinion. The intent of this distinction is to minimize proposal development costs for those vendors with little or no chance of receiving an award. However, notwithstanding the advice provided by the Government in response to their Step 1 submissions, all respondents may participate in Step 2.

    (2) Step 2. Factors 2 and 3 will be evaluated in this step. The selection decision will be a trade-off involving all three factors, Mission Suitability, Technical/ Management and Cost/price, according to FAR 15.101-1, Tradeoff Process. Risk assessment will be a part of the overall evaluation. • Participation in Step 1 is a mandatory part of this acquisition. Failure to participate in Step 1 or the Oral Presentation within Step 1 will preclude further consideration of the Offeror’s proposal. Step 2 submissions will not be accepted from any Offeror who has not completed Step 1. • Results of Step 1 will be carried over to Step 2 for the overall evaluation of proposals.

  8. On 3/7/2019 at 1:25 PM, Don Mansfield said:

    Why do people think that FAR 52.212-4(c) is an "authority" to execute a bilateral contract modification? Do people think that if that paragraph were not in the contract, the contracting parties would not be able to bilaterally modify the contract? 

    Its rather that -4 is a commercial clause, and many contracts I deal with are commercial have no other terms and conditions covering changes/modifications.

    Its a simple way of dealing with the authority issue, and moving on to the more important stuff, such as the substance of the modification.


  9. 52.212-4(c) - Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

    Full disclosure: I love this paragraph, and use it often.  It may be my favorite sentence in the FAR.  That said, this authority offers no clues about what is changing or why, so you really do need to explain things elsewhere on the modification.   

    Putting all the relevant authorities on the SF30 is a good idea.  I'm going to start doing that.



  10. 1) Agency is developing a solicitation (or 'fair opportunity') for a multiple-award IDIQ.  Commercial.  Well over $5.5 million.  Trade-offs evaluation of some type (God willing, it won't be FAR 15 in all but name).   FFP.  

    2) The requirement is partially performance based, so offerors can propose alternative technical solutions - with very different pricing arrangements.  For example:

    • Offeror 1 proposes FFP $/Yr for unlimited use of Services A & B. 
    • Offeror 2 proposes $/Minute of Use for A,  $/User/Month for B, with tiered volume discounts.
    • Offeror 3 proposes to sub A&B to Offeror 1, but is somehow cheaper than Offeror 1.
    • Etc.

    3) We know our specific requirements will change over time, and so there are lots (lots) of options.   The options have complicated interactions I don't understand.   Exercise Option #1 and you must also exercise Option #2, you can't exercise Options 3 or 4.  .  But you can exercise Option # 2 without #1.  Etc.

    4) Yes, I would like to not do it like this, and have raised all the obvious objections, but its going to happen regardless.  My colleagues and I are well aware of what a mess this will be.

    5) 'Total Evaluated Price' is a bad idea.

    • My agency almost always uses 'Total Evaluated Price' - just summing up the price of the order inclusive of all options - when conducting trade-offs.  Is A or B cheaper?  Just compare their TEPs.
    • In this case,  naively determining a 'Total Evaluated Price' inclusive of all options is incoherent.  
    • Comparing two incoherent TEP is even worse.

    What to do?





  11. Specific to IT - A highly detailed and specified SOW is a red-flag, if not an anti-pattern. 

    If its straight commercial software, you are buying whatever they are selling, so no need to specify everything because it doesn't matter.  

    If is software development, or anything under broad definition of 'IT services,' your IT folks probably shouldn't have too many detailed requirements.  That is what the whole 'Agile' thing is about.


    • If at all possible, we use contract vehicles where someone else has done the work and there is a federally-compliant software agreements.  GSA in particular.
    • My office (specializes in IT) usually asks for EULA/ToS as part of proposal.  
    • If I anticipate this will be a problem,  I'll make the software agreement stuff part of presolicitation communications with vendors so they know what to do.
    • We do not accept EULA/ToS with prohibited terms and conditions, or that have other deficiencies such as being blank, inaccurate, or undefined (the agreement consists of links to web pages that don't exist - very common).   
    • We do incorporate EULA/ToS into contract if
      • It was received as part of proposal and 'evaluated' to be compliant & legally & technically acceptable. 
      • The contractor has informed us, pre-award, that they insist on incorporating it.
    • I've incorporated a software licensing agreement into a contract via post-award modification a few times, but only to fix mistakes, never on purpose.
    • Our lawyers have opined that the user's 'click-through' EULA common with most software is probably a bunch of unenforceable nonsense.
    • For most commercial software that isn't big money, we don't go to legal with this stuff.  The Contract Specialist and CO do what they can and we move on.  Nobody wants to get lawyer$ involved in negotiating a $10,000 piece of software that will only be used by a dozen PhDs in their labs.
  12. Using Emotional intelligence - Understand and (if its reasonable) empathize with the COR's perspective. She isn't doing bad work to irritate you and annoy her management.  Find out why she is doing what she is doing, and how it looks from her perspective.   Often, when you know this, a mutually beneficial solution is revealed.  

    In my experience, the-bad-SOW-the-COR-wont'-fix is usually due to some combination of 1) Doesn't Know, 2) Doesn't Care, 3) Doesn't Have Time.    

    PS.  Don't Care is the easiest to address. Find out who does care, and include them into the  group-hug that is an acquisition IPT.  

  13. Anticlimactic follow-up.  We got the $150, mostly from nickels and dimes from under our sofa cushions. So moot.

    1) The determination was that I would have to re-open the solicitation to all eligible offerors (the original10) because making things options is a material change.    

    • Where an agency’s requirements change in a material way after a solicitation has been issued, the agency must generally issue an amendment and afford all offerors an opportunity to compete for its changed requirements. Murray-Benjamin Elec. Co., L.P., B-400255, Aug. 7, 2008, 2008 CPD ¶ 155 at 3-4.

    2) My next Fair Opportunity I am going to make everyone - offerors, CO, reviewers & evaluators - submit sworn statements acknowledging the acquisition is not subject to FAR 15.  I will also change the word 'offerors' to 'y'all' and 'proposal' to 'stuff' in the solicitation (to be re-named the 'Request for Stuff' or RFS).

    3) The lack of participation and the under-budgeting are both due to the requirement being overly complicated (IMO).    

  14. Background: Competitive solicitation for complex services under FAR 16.5.  Labor Hour.  For our purposes, there was a pool of 10+ contractors, and 3 proposals received.  Budget is $100.  Company A was Excellent and $150.  Company B was Satisfactory/Marginal and $120.  Company C was Unsatisfactory at $150.

    Negotiations are necessary.  To lower total cost, we are considering amending solicitation and cutting-out a few discreet and lower-priority tasks, making them separate optional tasks (as we might have the money in a few months).  This would reduce overall effort/cost by maybe 25%.

    Question: Can we limit negotiations to just Company A & B?  Or must we allow Company C to participate.  Or the entire pool of contractors (the 7 who did not submit bids)?  FAR 16.505 (b), the solicitation and the parent IDIQ contract have no clear language (at least, not clear to me) about this matter.  



  15. 2 hours ago, brent said:

    Can the lowest price be considered fair and reasonable when you do not know if the other offers are technically acceptable?

    Whether or not prices are fair and reasonable is a separate issue from 'How to LPTA.'  

    Let's just focus on LPTA evaluation methodology. There are two typical methodology for LPTA. 

    1) Rank responses by price.  Starting with the lowest price, determine if it's technically acceptable.  If yes, stop.  If no, proceed to the next lowest price and repeat.  This is most common methodology in the federal government.  I will die on this hill.  I have conducting training where I discussed this exact topic.  1102s across a dozen (civilian) agencies have said this is, by far, the most common way they 'evaluate.'  I have spoken to 1102s who have told me this is the *only* way they have ever done an evaluation under FAR 8.4 or 13.

    2) Evaluate all responses for acceptability.  Select lowest price of the acceptable responses.  My GS-15 mandates use of this methodology for FAR 8.4/12/13 LPTA stuff, despite the protests of staff.

    For LPTA Version 1, there is **most of the time** a reasonable assumption that several quotes/offers/responses/etc. received is sufficient competition for price reasonableness **most of the time**, regardless of whether the responses are technically acceptable or not. 

    I would note, however, that if its not bordering on self-evident what 'technically acceptable' means, you probably don't want to do Method 1.

    When I am pretending to be a CO (when the actual CO is out sick), I would not sign off on 'the expectation of competition' establishing price reasonableness if only one offer was received.  I would refer you to FAR 13-106-3 (a) (2), 15.404, etc. 





  16. 1)  The golden rule is to evaluate as you said you would in the solicitation, and your evaluation is impartial.  This is very explicitly stated many times in the FAR.   Favoring some offerors over others is a big no-no, and the subject of bazillions of protests.  There are lots of controls in place to prevent that from happening, but it still does happen.

    A good Contract Specialist will ensure that the *legitimate* reasons a vendor is a 'favorite' are factored in.    Say a vendor is favored because they have an excellent track-record of performance.  Then a solicitation could heavily weight past performance.  That's legit.  Tweaking specifications so that only a single brand name product could be acceptable, without a corresponding 'Brand Name Only' justification, not so legit.  Deciding in advance who gets the contract, and then backward planning the acquisition procedures and source selection - not legit at all.

    2) No.  In my experience, we don't mind hard questions.  I consider them a type of credible positive signaling (Someone competent spent valuable time reading and thinking seriously about the solicitation).

    We don't like dumb or pointless questions.  To the extent possible, I try to make questions anonymous so that the folks answering the questions don't know which offeror asked the questions.  I do this to try to avoid setting expectations, because questions definitely do establish some prior expectations about the offerors, no matter what anyone says to the contrary. 

  17. This is my personal 1102 jihad, so to speak.  


    1) I too would like to know this.  

    2) & 3). Yes.  Automated administrative tasks is a big industry.  It goes by many names - Robotic Process Automation (RPA), Business Process Improvement, Digital Transformation,  Workflow Automation.  All of the major tools could be used in federal contracting. Every big IT services firm dabbles in this industry, and there are many niche players too.  Big Example ) www.ibm.com/automation/software‎.  Niche Example)  AutomationAnywhere.com.

    4) Any activity that involves looking up data, copying & pasting data,  moving files around, or following a well-defined and limited set of rules can be automated.   First and foremost, all core contract documents can be automatically generated and populated.   Communication like status updates, generic emails, and the like can be automated.   Clause Builders and ARRT are a crude version of this.  

    You could set up a more elaborate system where, on a certain date, a reminder pop up about an option.  The 1102 and/or COR answer a few questions and the draft D&F is written , Notice of Intent email written and sent (including updated email contact info), draft Contract Modification written in your CWS,  CPARS stuff,  verification COR status & new COR appointment (if necessary), verified SAM records, and complete file documentation, plus notices for internal review & approve sent to various folks, all that done automatically in a few seconds.  This would, however, be a non-trivial undertaking to set up. 



  18. Not my area of expertise, but this comes to mind:  FAR 16.205 -- Fixed-Price Contracts with Prospective Price Redetermination.  This can't be used for Commercial Items though, and from what I understand is mostly used for utilities, so not a great fit.

    As always the case, do MR about the commercial practices for dealing with this issue (other than relocating to Mexico).

  19. The Netflix manifesto is very much a product of its Silicon Valley environment.  It only works under exceptional circumstances.   Highly competitive market.  There are minimal difference between inter and intra firm transaction costs, and those costs are very low indeed.  Workers are abundant, ultra-networked, and skills are fast changing and easily transferable.  Productivity is clearly measured and monitored.  Risk is compensated with cash (no job security, but very high wages). Etc.  For the public sector generally, the Netflix model is useless.  

    My proposition is that 'better people' are almost never the solution, and people are almost never the problem.  People respond to incentives, and the incentives are systemic.  

    Comcast doesn't hire uniquely nasty and stupid customer support.  Firing the lot and re-hiring 'better people' won't make any difference.  Comcast is a monopoly and its customers are hostages.  That is the problem, and its nothing to with HR.  

    Contracting shops sure seem to have really low efficiency.   More training or better people won't make any difference.  The federal government cares a great deal about compliance and following proper procedures.  Efficiency isn't even measured for the most part.  See Vern's post about how its impossible to baseline effort ex ante.  If there isn't a standard to measure against, there is no such thing as 'more' efficient  - more efficient compared to what? 


    Anyways, regarding the time-off incentive of the original post.  Most contracting offices I know about make extensive use of time as an incentive.  The particular scheme described would probably not work because a very-strong time-incentive would lead to all sorts of harmful gamesmanship.  The crucial 'assignment of workload' in particular.


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