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Everything posted by Witty_Username

  1. Hmmm, I think what makes performance-based contracting performance-based contracting is including the required results in clear, specific and objective terms with measurable outcomes in the contract at the time of award (solicitation really); and I don't think you can generally do this for service quality, timeliness, responsiveness, creativity, and the other outcomes you actually want from a professional support service contractor in most cases. So I actually was thinking trying to apply relational contracting principles including output or outcome-based models (although not necessarily defined in advance and objectively measurable as required by PBSA); a more collaborative relationship; and an emphasis on relationship management rather than just contract performance surveillance. For example I think meeting regularly to discuss the intangible aspects of performance and providing draft CPARS assessments with constructive feedback on how to get from the satisfactory to very good or exceptional CPARS rather than simply surprising the contractor with a final rating at the end of each year is a more collaborative approach than we often take. I guess on reflection it is really cherry picking some aspects of performance-based contracting and some aspects of relational contracting and adding them to an otherwise LOE contract; I'm just generally more suspicious of calling anything "performance-based" because the vast majority of so-called performance-based contracts are absolutely not performance-based and we probably haven't hit the point where we're overusing relational and calling everything a relational contract (yet!).
  2. Even 52.246-4 relies on inspection of whether or not services "conform with contract requirements" so the contract still needs to contain some enforceable contract requirements to measure conformance against, which loops right back to the original issue that it is difficult or impossible in many cases, particularly long-term professional support services, to create measurable service output requirements that will remain useful for the life of the contract. But since we still have to write contracts, I might add a third possibility, which is to use input-based level of effort requirements (e.g. FTEs) to establish a contractually enforceable baseline, and then apply relational contracting practices regarding the output (service quality, timeliness, responsiveness, creativity, etc. whatever the undefinable, subjectively measurable actual things we want to achieve are) with encouragement via CPARS. Not saying it is a perfect solution, but I think it is an improvement over the typical pretend performance-based contracts with a "PWS" but no defined or definable measurable outputs or inputs at all.
  3. Not that we've found. Best we can do is track changes in total numbers of CPARS on the status report in Contract Status "Due" or "Overdue" and Evaluation Status not "Completed". That at least lets us see overall trends in overdue/incomplete CPARS and when the numbers start to rise we dig into the details manually using the Status Report and the To Do List reports. You could probably use Excel or Access to compare one Status Report spreadsheet to the next and see what is new and what has moved a step down the evaluation status line, but even if you have that you're still just going to have to ensure everything is assigned to someone to work and then encourage them to work it to get it done. We've made the most progress by graphing the overall overdue numbers on a control chart weekly to see when CPARS in general needs management attention. When the numbers start to climb we ensure everything overdue on the Status Report is actually on someone's To Do list (and not languishing waiting for action by a role without someone assigned) and then contact that person and encourage them to move it along.
  4. I was specifically referring to how the price would be established for the order as something an acquisition plan reviewer might be interested in knowing. Since 16.505(b)(3) (I believe, that is a difficult citation to figure out) says If the contract did not establish the price for the supply or service, the contracting officer must establish prices for each order using the policies and methods in subpart 15.4 I thought it was reasonable to summarize the 15.404-1(b)(2(i) method of Comparison of proposed prices received in response to the solicitation as "competition." But now I do see that 16.505(b)(1)(iii)(A) actually says Each order exceeding the simplified acquisition threshold shall be placed on a competitive basis so it seems like it would be ok to refer to the fair opportunity process as a competition.
  5. One additional piece of information related to contract type that might be necessary to explain to approvers/reviewers is whether firm-fixed task orders will be based on unit prices established in the base contract or will be competitively established under fair opportunity (multiple award) or negotiated (single award). That piece of information has a significant impact on the actual future operation of the contract. So maybe “a [multiple][single] award IDIQ with firm fixed-price task orders [issued under fair opportunity/issued based on fixed unit prices/negotiated at the task order level]."
  6. But for some reason it still encourages agencies to "use these procedures for orders under multiple-award contracts" which certainly doesn't seem innovative or streamlined...
  7. Interesting, I had not thought enough about this. Sure enough, FAR 16.505(b)(1)(iii)(B)(2) says "[The contracting officer shall] Afford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered" which certainly strongly implies that offers should be obtained under fair opportunity procedures for multiple award contracts. However this doesn't appear to be the interpretation of at least NIH NITAAC and NASA SEWP multiple award IDIQs, both of whose ordering guides explicitly allow for the use of quotes. I'll have to do some more research...
  8. Contract formation via RFP, IFB, RFQ and any other method will all eventually involve an offer and acceptance at some point, however neither RFQs, RFPs, nor IFBs (requests or invitations) are offers themselves. I found this recent thread on the subject of using a request for proposal (i.e. a request for offers) under Simplified Acquisition Procedures informative:
  9. I think it's useful to think about the plain language meaning of offer that you might use in your daily life and then apply that to the various contracting scenarios you describe. If you offer your friend some milk, "Would you like a glass of milk?" they can accept your offer, "Yes, please," at which time an agreement is formed. You made the offer and they accepted. But maybe they don't want milk, so they come back with a counter-offer "Could I have some water?" which you can now accept "yes you can have some water" or decline "no you can't have some water". They become the offeror and made the counter-offer and you accepted. You can see how the offer constitutes a promise to do something, if it is accepted: if after offering milk to your friend and them accepting you offer "Yes, please" you subsequently said "Too bad, we don't have any milk" that would be socially awkward. Once you have offered something the expectation is you will come through if the offer is accepted, which is the definition of an offer. A quote has a different feel to it: Your friend might ask "Do you have milk", to which you respond "Yes I do", but no one has made any promises at this point, and if they subsequently ask if they can have some and you say "Sorry, it's only for my coffee" that would be OK, no promise should have been inferred by answering that you did in fact have milk. So you can apply that same intuitive understanding of whether something constitutes a promise to do something if accepted to different contracting scenarios to figure out at what point an offer is being made and who is making it (although the milk analogy lacks consideration): Request for Quote: Gov: "How much do widgets cost?" Vendor: "$20 each" feels like a quote, the vendor hasn't promised anything, and if the government attempts to place an order and the vendor says "sorry, we don't have any in stock" no one would have broken any sort of agreement. But now if they government says "OK, I'd like to buy 10 widgets at $20 each please" you can see that that is a promise to buy them if accepted (an offer) and if the vendor builds them and hands them to the government they government won't be able to say "No thanks, I didn't really want them." In this scenario the government requested and received a quote, and then the government made an offer to buy at the quoted price, which the vendor accepted. Invitation for Bid or Request for Proposal: Gov: "How much will you sell me 10 widgets for?" Vendor: "I will sell you 10 widgets for $20 each" feels like an offer, the vendor has promised that they will sell the government the widgets at that price, should the government accept. If the government accepted the offer to sell them the widgets for $20 each the vendor would not be able to suddenly increase the price. In this scenario the government asked the vendor to provide an offer and they did, which the government accepted. For a task/delivery order it would depend on what the base contract says and what/whether the government asks for from the vendor. As stated in a previous comment, if the base contract requires the vendor to perform upon receipt of an order there is no quote/offer/acceptance involved in the order at all; all the agreements have already been made, the government orders and the vendor performs. In some multiple award scenarios the government might ask for offers from multiple contract holders, which they could then accept; or they may ask for a quotes, which they could then base an offer on. (I think the BPA scenario would be much the same: it depends on what was already agreed upon in the BPA, and what the calls themselves say). Why does any of this matter? For one thing contracts are formalized human relationships, and I think these concepts stem from the way people have always interacted. More specifically, making promises costs something (e.g. it ties up resources because I have to be ready to deliver, it increases risk since I have to keep my promise) and so in cases where availability is high it is probably more efficient to minimize the number of promises (offers) required in a transaction and the time the promises are left open. In a request for proposals scenario the government might obtain offers (promises) from many different offerors and require them to remain available for acceptance for many months. In a request for quotes scenario the government will generally only make one offer, and it will only be available for acceptance by the vendor for a short period of time.
  10. I think it would still be appropriate to apply a "scope of the competition" test to determine whether changing the payment terms would constitute an out of scope modification, even though most of the examples I found involved adding work to a contract, not changing pricing arrangements. Would potential offerors have reasonably anticipated this change? Does it result in a contract which is substantially different from that originally competed (B-200722)? To answer those questions I think you'd need to consider a couple of things including: -Were there any communications with potential offerors regarding the payment structure, e.g. did anyone ask whether milestone payments were available, or did anyone express concern over waiting until all performance was complete to invoice? -Do the companies in this industry or who proposed generally have the resources on hand to perform a requirement of this magnitude, or is it likely that they would have to obtain financing or price inflation or other cost risk into their proposal based on the lack of interim payments?
  11. I think this is where a lot of the current confusion regarding T&M stems from: Many contracting officers are using the T&M contract type to create an efficient vehicle for ordering of supplies or services after requirements materialize when an IDTC with ordering officers or BPA with authorized callers would be more appropriate, but won't work because it takes too long to get funds committed prior to placing an order or making a call and to record the obligation afterward (due in my opinion to the increasing interconnectedness of the financial systems used for approving and recording commitments and obligations in an "auditable" manner). A T&M contract should have a fully-defined requirement/outcome (e.g. job) which will require an unknown quantity of labor and materials to achieve (otherwise the requirement is not sufficiently "firm and complete" to constitute a valid obligation, see B-196109, OCT 23, 1979). But many actual T&M CLINs seem to be mechanisms for bulk obligating funds in advance of specific known requirements, so they can then be "ordered" against by the COR or someone else without having to go through the entire funds approval process, which in many cases seems to take longer than the contracting process. So, it isn't surprising that there is confusion or disagreement about the use of T&M, as different people really are talking about two entirely different things: 1) "Actual T&M" with defined requirement/outcome but unknown labor/materials; and 2) "IDTC via T&M" as an efficient (if fiscally dubious) way to bulk obligate funding for ordering later once requirements are known.
  12. It is possible to have just a five year ordering period for the IDIQ and options (to be exercised via modification) in the individual task orders. The original question says the IDIQ doesn't have options but never fully clarifies whether the task orders might. If the actual work to be performed is negotiated at the task order level then negotiating an entirely new task order each year may be impractical compared to putting options in the task order for future years of the requirement defined and priced in the task order. Alternately if the IDIQ has a fully defined requirement and unit prices then maybe issuing a new task order each year isn't much of a burden.
  13. If it's designed correctly to take over the dull, dirty, and dangerous tasks (ok, maybe 1102s only deal with the dull, not the other two) and then to feed the right information to the 1102 at each decision point for their decision it could be great. AIs have a relative advantage in some areas and humans have a relative advantage in others (and those areas are likely to change as AIs get more advanced). But imagining giving the AI a big database of existing government contracts to learn from reminds me of this: Saturday Morning Breakfast Cereal - Rise of the Machines (smbc-comics.com)
  14. Interesting. In that case you might more broadly define the need as finding out whether some particular design will work. "Failing fast" could be seen as fulfilling the need to find out what works, make changes, and try again. Of course you can keep opening the aperture and question whether any particular platform satisfies the need for a specific capability, and whether any specific capability satisfies the need for national defense, etc. I certainly think there is likely to be value in speeding up PALT, however it is defined, as long as it isn't done at the expense of some other part of the overall process. Understanding where contracting (or any particular role) fits in to the overall process is a challenge, particularly in a contracting office that supports many different external "customers", but I think by trying to understand the goals of the level above you (e.g. contracting understands program goals, etc.) you're more likely to be able to optimize your own part of the process in a way that doesn't negatively affect the overall process. Alternately if you don't understand the higher level goals you may well optimize your own part of the process in a way that hurts the overall process.
  15. I agree. And maybe the PALT on some of the DIVADS or A-12 contracts was 72% faster than current PALT, and yet the need was never satisfied. So I wouldn't declare overall success based on how fast a contract was awarded that never actually fulfilled the need. But, easy for me to say, hard to actually do (except to be aware that we shouldn't overly-incentivize a narrow definition of PALT that doesn't include delivery/success)...
  16. Solicitation to award is a very industry-focused definition of PALT, because it represents the time when offerors have their resources tied up in a proposal. It's probably not particularly meaningful to a program office or contracting office at all. Incentivizes contracting offices to minimize proposal preparation time and to award without discussions. The time from receipt of a "procurement-ready package" to award is a contracting office focused-definition of PALT. Also probably not very meaningful to a program office who can't get a procurement-ready package in the door. Incentivizes contracting offices to not "accept" less than perfect packages, which may well actually increase overall requirement satisfaction lead time for the program office. The time from identification of a need through delivery is a program office-focused definition of PALT and probably what really should be incentivized. But it's too broad to really assign responsibility for to a single entity (assuming the program office and contracting office are separate) so it's probably hard to do.
  17. I don't think it's helpful to try to categorize every requirement as either a service or a supply. I think the must useful categorization of a license or subscription, or an equipment rental or short-term facility rental (all of which have alpha character "service" PSCs but don't really fall within the definition of a service) is "not a FAR Part 37 Service." I'm not saying it is a supply, I'm just saying it isn't a service in the FAR Part 37 sense of the word where an identifiable task is performed by a contractor employee (or the T. Peter Hill, "On Goods and Services", 23 REV. INCOME & WEALTH 315, Dec. 1977 sense of the word as a "change in the condition of a person, or of a good belonging to some economic unit, which is brought about as the result of the activity of some other economic unit, with the prior agreement of the former person or economic unit”; or Vern Edwards, "Performance Work Statements", The Nash & Cibinic Report Vol 35 Issue 2, Feb. 2021 sense of the word as "work done in order to change an existing state of affairs" either). Why is it useful to separate from FAR part 37? Because there are a bunch of extra things you have to do for a FAR part 37 service that don't make sense for a non-FAR part 37 service, like a determination of non-personal services, inherently-governmental determination, acquisition strategy for the acquisition of services, performance-based service acquisition, maybe pay in arrears, etc. and yet it still doesn't make sense to call an intangible license a "supply." The Section 809 Panel Recommendation 43 notes that it is "[unrealistic to categorize] all purchases as either supplies or services [...] often leading to contracts that are neither optimized nor appropriate for the solution being acquired." So, call it a non-FAR 37 service, use the alpha-character PSC, and create a contract optimized for the actual requirement, not any particular category.
  18. I think that's reasonable. If you look at the software PSCs the manual is clear that the difference between a D "service" PSC and a 7 "supply" PSC is whether the license is perpetual or not, and the same logic could apply in your case. I don't think the use of an alpha-character PSC as prescribed in the PSC manual makes it a service in the FAR 37 sense, but you may still run into issues with CAR coding (e.g. if it's not a service at all do you call it a is it a performance based service or not a performance based service?), and people who expect anything with an alpha PSC to be treated entirely like a FAR 37 service (payment in arrears, certification of non-personal services, QASP, etc.). But to paraphrase Vern Edwards quoting GAO paraphrasing Galileo: it doesn't matter what you call something, it matters what it is...
  19. I think any system that involves so many people (a quick Google search said 165,000 people in the DOD acquisition workforce alone in 2017) is going to display emergent behavior. Hire a huge workforce, give them a complicated set of rules and systems, then change the rules and systems continuously over their careers and I believe as new rules are individually interpreted, new concepts are adopted, old habits gradually fade, and new habits are formed you're likely to get very unpredictable outcomes.
  20. I read Kill Chain and found it relevant and interesting (I originally was going to say "I enjoyed it" but that's not quite right). I don't recall coming away with the impression that the DOD was necessarily against adopting AI (although within narrower areas it seems like pilots tend to think that aircraft need pilots, and tankers tend to think that the military needs tanks), but rather that congress, the military, and industry (all "in risk-averse bureaucracies that seem inclined to resist and stymie change at every turn") are too wedded to the idea of improving "platforms" instead of making more effective kill chains. I do think that there are plenty of people and organizations outside the DOD who are very concerned about including AI in the kill chain, and explaining why AI could make war more ethical, not less ethical, seemed to be a major focus of the book. The book has a great explanation and critique of the defense acquisition system; here's a key explanation for the situation for each major player. DOD: "The issue is not a lack of authority to go faster or take more risk, but that those who must exercise those authorities, bear those risks, and be accountable for the outcomes rarely use the authorities they have. [...] Those who do make decisions often lack the authority and incentives to make riskier decisions to get better outcomes." Congress: "Members of congress cannot ignore the things and issues that are likely to win or lose them votes. [...] The future does not vote, but the present certainly does. [...] Congress passed law after law to create new processes, offices, paperwork requirements, and official homework checkers to ensure that some bad thing that happened once would never happen again." (maybe he was paraphrasing from Vern Edwards “Frictionless Acquisition” Nash & Cibinic Report Sep 2020 Volume 34 Issue 9 “The principal acquisition statutes […] reflect congressional responses to various issues that have annoyed politicians from time to time.”) Industry: "[When there were no longer any existential threats and congress and the DOD began to focus on transparency, efficiency etc.] "The US government created incentives for defense contractors to do the wrong things, and that is often what happened. [...] Companies adapted. [...] Many companies resented making these changes, which they felt forced into. [...] Many of these major moves represented gains in efficiency, but often at a cost to the effectiveness and speed of innovation." So I felt like there were two major takeaways from the book: 1) We need kill chains with cutting edge AI instead of platforms if we want our military to remain relevant; 2) "It ultimately comes down to incentives" which are currently: short-term focus on spending money in their districts and avoiding the next procurement scandal from congress incentivized by voters; risk-averse compliance-focused behavior from acquisition professionals incentivized both by congress and internal leadership; and an industrial base that gives both parties what they ask for (replacement platforms and auditable accounting systems).
  21. I would say certifications (or education, or experience, etc.) are often used when there is no measurable objective for the contractor to achieve, as is often the case in professional support services contracts. So the logic is likely "we want someone to sit here and work on this, but we can't really define the outcome of the work, so we at least want someone trained/experienced/certified." I'm not saying it's necessarily a good idea, or a good way to contract, but that's generally the thought process I hear.
  22. I think it's worth considering that offerors make choices in their proposals, and if the government can tell them what they value the most it can help them make the choices needed to submit offers that the government wants. For example, if I want to buy a house I don't just tell the realtor "show me every house with at least three bedrooms" and then try to sort through the pile, I might instead say "A low price is most important to me, show me low-priced three bedroom houses" or alternatively "I want as much room as possible and I'm willing to pay for it" and now the houses the realtor shows me are more likely to be what I'm looking for, and I should have some similar houses to compare. When it comes down to choosing which house to buy I'll still decide whether the extra money is worth the extra space in the end, but I likely won't be deciding between a tiny foreclosure and a million-dollar mansion. Same thing when you buy a car, you don't go to a Ford dealer and drive a Focus, a Mustang, and an F-150; you tell them you are interested in a economy, or speed, or towing capacity, and then you drive some cars that meet your preferred criteria. You still make tradeoffs (is the additional towing capacity of an F-250 worth the price compared to an F-150) but they are showing you the vehicles that they think are most in line with what you are looking for. In the same way, if a solicitation says past performance is the most important factor and non-price factors are significantly more important than price potential offerors may decide to invest in a teaming arrangement with someone currently performing similar work, even if it is more expensive, rather than leaning their process to try to propose the lowest price they can. Now, the government will (ideally) get several proposals from offerors with solid past performance to make tradeoffs among, rather than a random collection of high and low priced offerors with widely varying past performance.
  23. If this is a supply contract I would suggest that if you know you will not drink the water until next fiscal year you don't have a bona fide need for the water this fiscal year. Supplies are generally a bona fide need in the period in which they are used. There are two exceptions to the bona fide needs rule for supplies: stock-level exception, which would absolutely apply if you purchase a year's worth of bottles and kept them in your fridge and drank one per month; and lead-time exception for deliver lead-time or production lead-time, neither of which seem applicable here. I'm not necessarily convinced that it is a supply contract though. Maybe you are really paying a service contractor to maintain the water supply in your various buildings as a service, not simply ordering a supply delivered, in which case if you have a statutory exception to the bona fide needs rule for severable services (10 U.S.C. § 2410a for DOD or 41 U.S.C. § 3902 for non-DOD).
  24. Looks like it is the same as "Agency Code" here: https://www.fpds.gov/downloads/top_requests/FPDSNG_Contracting_Offices.xls Here are some examples: “5700” (Air Force), “2100” (Army), “1700” (Navy).
  25. Not to hijack the thread, but on a semi-related note apparently DPC is saying as of March that to order from an existing Government contract a cardholder needs to be designated "by name" by the contracting officer who awarded the contract (source: https://www.acq.osd.mil/dpap/pdi/pc/docs/SmartPay3/Ref B - JAM GPC Role Descriptions_3-23-21.docx).
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