Vern Edwards

Paragraph (d) is not a principle. It is a rule. Rules are based on principles, which are basic truths or assumptions. Rules apply principles to practices. In this case, the principle that underlies the rule at FAR 1.602-2(d) is that the Government should make sure that what it receives and pays for is what it was promised and is entitled to. Thus, the rule in FAR 1.602-2(d) that the CO should appoint someone in writing to make sure. The same principle underlies a broader rule. FAR 46.102, Policy: FAR 1.602-2(d) focuses on contracts and orders other than FFP because it is based on a statute about cost-reimbursement contracts in the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. But bureaucratic interpretations of FAR 1.602-2(d), with its focus on other than FFP, are uninformed. FAR 1.602-2 begins thusly: The broader rules at FAR 1.602-2 and 46.102, quoted above, should inform COs that if they are going to buy something they must make sure that they or someone else makes sure that the Government receives and pays for what it was promised and is entitled to. Since COs are responsible for contract administration, whoever makes sure is a COR, whether appointed by CO letter or interoffice or interagency agreement.

The professional answer to that question is an unequivocal YES! Because it seems likely that a COR appointed for a services contract is not qualified to be a COR for an order of supplies. For the curious, assuming there are any such, here's some deep background. The OP's question appears to have been prompted by concern that the contract is for services and that, for some reason, the agency is issuing orders under a service contract to buy supplies. The OP wants to know if his office must appoint a special COR for the supply orders. With respect to FAR 1.602-2(d): Why is it there? What is it about? How is it supposed to be applied? FAR is not a textbook. It states the What, but not the How or the Why. I'll leave the How to first-level supervisors of the clueless. I'll explain the Why for curious professionals. When COs award contracts they must perform contract administration. One of COs' most important tasks during contract administration is to ensure that the government gets what it pays for by means of contract quality assurance (QA). (QA is distinct from quality control (QC), which is the contractor's responsibility.) FAR 46.101 defines contract quality assurance as follows: The purpose of contract QA is to ensure that supplies, services, and construction conform to the contract requirements. Contract QA is a technical function, not just an administrative function. It must be done by persons who understand the contract technical requirements and the things being purchased and understand how to inspect them. They must have technical know-how. Now read FAR 42.202(a); 42.302(a)(38) and (68)(ii); 46.103(d) and 46.104, and 46.401. Historically, most of what the Government bought was supplies, and the Government, mainly DOD, employed professional inspectors to perform contract QA during manufacture or upon delivery. Most DOD inspectors worked for a large regional organization called Defense Contract Administrative Services or DCAS. Certain contract administration functions--such as inspection and acceptance and payment--were delegated to DCAS and its subordinate organizations via standing agreements. DCAS offices would appoint the inspectors, who were--guess what--CORs. They were called that long before I was born. Many civilian agencies relied on DCAS for contract QA. When buying construction, agencies used civil engineers and experienced construction workers as CORs for contracting QA. When buying services, persons in the requiring activity checked the contractor's work. But services were a small part of Government contracting, and there was no systematic approach to performing contract QA. In the years after the Reagan administrations, Government contracting became dominated by services, gradually at first, and then quickly as the Government awarded more and more service contracts for performance of its work. Such contracts were generally referred to as "support services," and were highly diverse. Moreover, most such services were performed at "source" (see FAR 46.402). For those reasons it was, and is, difficult to centralize contract QA as had been done through DCAS. (DCAS is gone. It has been replaced by the Defense Contract Management Agency (DCMA). See https://www.dcma.mil/News/Article-View/Article/2100501/a-history-of-defense-contract-administration/ ) There has never been a centralized system for performing service contract QA. That makes sense, because most services are "local," i.e., performed where needed, at "source." The Government personnel at source should understand their requirements best. So it is mainly left to local contracting offices. But as service contract obligations grew as a rapid pace after during the late 1980s and the 1990s, both the Executive Branch and Congress began to worry about whether the Government was getting its money's worth. Moreover, services required more than just QA, they required more coordination between the requiring activity and the contractor, because unlike hardware specifications, statements of work only rarely specify services in detail. Requirements often had to be clarified ad hoc, during performance. During the late 1990s-mid-2000s, concerns about service contract management became elevated in light of a huge surge in service contracts. The surge became a tsunami after 9-11 and the start of our wars in Afghanistan and Iraq. See GAO, DEFENSE ACQUISITIONS: DOD’s Increased Reliance on Service Contractors Exacerbates Long-standing Challenges, GAO-08-621T (April, 2008). The document is the text of GAO testimony to the House of Representatives. Three quotes: In the wake of the report by the DOD's Panel on Contracting Integrity and the the GAO testimony, the FAR councils issued FAC 2005-50, 74 Fed. Reg. 14545, March 16, 2011, which, by interim rule, added paragraph (d) to FAR 1.602-2. The interim rule was finalized by FAC 2005-56, 77 FR 12925, March 2, 2012. The councils expanded on the COR requirement in FAC 2005-67, 78 FR 37675, June 21, 2013, which created the current text of FAR 1.602-2(d). The FACs that created that requirement didn't tell the story that I have just told you. Bottom line: The coverage in FAR 1.602-2(d) is really aimed at ensuring proper service contract QA, which is not effectively covered by FAR Parts 42 and 46. As is typical, FAR does not explain the Why of anything. Thus, if the OP's office is going to use a service contract, with service contract inspection clauses, to buy supplies—which is truly, deeply stupid—it should at least appoint a special "COR" to perform supply contract QA. And now you know why. It is not about the interpretation of FAR 1.602-2(d). It is about sound professional practice. So, YES! The office that is buying supplies under a service contract—which is the kind of practice that has screwed up the contracting system and that, if practiced too widely, results in more regulations—should make sure that it can perform adequate contract QA before buying, accepting, and paying for those supplies. And any CO who doesn't understand that should have their certificate of appointment taken away. P.S. Some of the responses to the OP in this thread have reflected an almost profoundly bureaucratic mentality.

Sigh. No one can provide leadership in Government contracting until they know the what, how, and why of: the pertinent concepts, the pertinent principles, the pertinent rules, the art of curiosity, the art of inquiry, the art of analytical reading and interpretation, the art of explanation, the art of communication (oral and written), the art of argument, the art of process design, the art of procedure design, and the art of insubordination. If you don't know the what, how and, most especially, the why of those things, then you cannot lead. You cannot learn those things by taking classes sponsored by DAU and FAI. You learn them by training your mind to think and by studying systematically, deeply, and persistently throughout your entire working life. Study by reading, observing, analyzing, experimenting, and critiquing. It's a do-it-yourself endeavor. After you have done that for a number of years you will know a lot and can begin to lead. You lead by teaching other people that they have to think, read, observe, analyze, experiment, and critique. You don't lead by telling people how to do things or giving them things to cut and paste. You lead by showing them the arduous path to competence. And you have to accept that while you'll have a few successes in return for your efforts, the biggest part of what you'll get in return will be disappointment.

Criminy. 😟

Generally, legal sufficiency means in compliance with law, regulations, policies, and procedures, or more generally, adequate for legal purposes. It means different things in different contexts. The term appears in 103 places in the United States Code. It appears in 57 places in the Code of Federal Regulations. It appears in the FAR System only once, at 42.1203, with reference to novation agreements.

See the definition of micro-purchase threshold in FAR 2.101. Vehicle repair sounds like a service and it sounds like a service that would be subject to the Service Contract Act. If so, the threshold is $2,500.

See the Court of Federal Claims bid protest decision in Stratera Fulcrum Technologies v. U.S., May 2, 2022. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2021cv1770-79-0 The agency (Patent and Trademarks Office, to which the FAR does not apply) used the Highest Technically Rated with a Fair and Reasonable Price (HTR w FRP) method of source selection in combination with what is called the "transitive analysis" technique. That technique involves ranking proposals through paired comparisons in reliance on the transitivity axiom, what holds that if Offeror A is better than Offeror B, and Offeror if B is better than Offeror C, then Offeror A must be better than Offeror C, so there is no need to compare Offeror A to Offeror C directly. The court referred to that axiom as "the transitive property of inequality." See decision footnote 5: The court denied the protest. Reliance on the transitive property when making source selection decisions might be considered a logical and efficient procedure. But it has been an issue in two protest decisions: Metric 8 LLC; M6-VETS, LLC; RCH Partners, LLC; Stratera Fulcrum Technologies, LLC; MERPTech, LLC., GAO B-419759.2 (2021) Salient CRTG, Inc, GAO B-419759 (2021) The GAO has not objected to its use, so far. There is a problem, however: Although logically sound, Amos Tversky showed in 1969 that transitivity does not always hold in matters of human decision making. See Tversky, "Intransitivity of Preferences" in Psychological Review, Vol. 76, No. 1, 31-48. https://pages.ucsd.edu/~mckenzie/Tversky1969PsychReview.pdf The late Tversky is a legend. See Lewis, The Undoing Project: A Friendship That Changed Our Minds (2016). His paper is highly regarded and has been cited more than 3,000 times. And since Tversky, many, many papers have raised issues about the validity of the transitivity axion in decision making. Apparently, some lawyers don't know about them. I didn't, until I read The Undoing Project. I doubt that the protester's lawyers knew of Tversky's paper or that transitivity of preference does not always hold when people make decisions. If they knew they might have asked whether the USPTO undertook measures to validate its procedure. (I doubt that it did.) But, not knowing, they probably did not bring that matter to the court's attention. If they had, and if the agency had not been able to show that it had taken steps to confirm the transitivity of inequality in its procedure, then it might have cast a shadow on their source selection decision in the mind the judge. But while most writers think Tversky got it right, some differ. In the opinion of one writer, "Any claim of empirical violations of transitivity by individual decision makers requires evidence beyond a reasonable doubt." See Regenwetter, et al., "Transitivity of Preferences," Psychological Review, Vol. 118, No. 1, 42-56. https://www.chapman.edu/research/institutes-and-centers/economic-science-institute/_files/ifree-papers-and-photos/michel-regenwetter1.pdf Sooner or later, protest lawyers are going to get wise to this and raise the possibility of intransitivity in their arguments. The GAO is often bull-headed about sticking to its "case law," so you might be safe there, but judges at the COFC can be more thoughtful, probing, and skeptical. I'm not saying that you shouldn't rely on transitivity when determining best value. I'm saying validate your procedure if you do and document how you did it. If you cannot figure out how to do that, then be very careful. Don't jump on the bandwagon and rely on something (cut and pasted from another RFP) that you may not fully understand. Transitive analysis can save some time and effort, but only if can withstand challenges. Forewarned is forearmed. Be ready.

A young attorney for the old (pre-9/11) U.S. Customs Service told me the same thing 20 years ago. I have heard similar stories several times. Legal review and complaints about it, and attorney complaints about contracting office standards, are nothing new. I have been in this business since 1974, and I have heard such complaints many, many times throughout my career We simply must acknowledge that many COs do not measure up to the ideal image of "The Contracting Officer." Generally, the problem is not the fundamental qualities of individual persons—intelligence, commitment, and work ethic. It is generally about education, training, experience, work standards, and appointment standards. Ultimately, the problem is attributable to failures of leadership and management.

A very poorly asked question. Try again. Response to what?

Legal review is required in most procurement organizations. When there is disagreement between a lawyer and a CO over a legal issue, lawyers have a pertinent advanced degree on their side and the fact that most bosses are afraid to reject legal advice. All the same, and depending on the boss, a CO with stature beyond their own organization—due to acknowledged expertise, a good argument, and a few publications—and who knows how to pick their fights, their assignments, and their bosses just might win out. But a CO who argues on the basis of their job title is a likely loser. It's interesting to me how people like to talk about COs as professionals when so few COs do anything to enhance their professional standing beyond their own office door. Whatever happened to making a name for oneself? You know you've done that when the program manager delays a meeting until you can get there and when people in other offices ask for your opinion on a matter in which you are not involved. You have to do more than just your job to get top-level respect. It's not enough to be "a good worker." You have to be the expert, and you have to be KNOWN.

What I think you should ask for is (1) a description of each job and the conditions of performance, (2) descriptions of the performance challenges of each job, and (3) descriptions of lessons-learned that will be of help during performance of your job.

First, think in terms of (A) experience and (B) past performance. Experience is the record of what an offeror has done in the past. Past performance is an assessment of how well the offeror has performed. You should always evaluate both. They are related, but they are different things. All assessments of past performance are associated with particular instances of experience. Let's call those instances jobs. What you should want to know about an offeror is how many jobs it has had in the recent past that were like the one you will want it to do for you. You want a contractor to have experience doing jobs that were similar in terms of the type of work that was done, the size of the job, and the complexity of the job. Complexity is the product of (a) what the work entailed, its "scope", and (b) the conditions under which the work was done. Complicated work performed under variable and unpredictable conditions can produce unexpected states of affairs. Such states may present themselves in the form of unexpected difficulties that the contractor will have to overcome in order to complete the job as promised. That is why the complexity of past jobs is an important consideration. We presume that experience teaches a company about what can go wrong, what are the warning signs that something is going wrong, what if anything can be done to prevent them from going further wrong, what remedial actions can be taken to get things back on track, and what can be done to recover from unpreventable disaster. That's why experience is valuable. What you want is a contractor (a) whose experiences should have prepared them for the work to come, and (B) whose past performance shows that they have learned from those experiences.

Here's a simple rule. When researching the FAR and going to a particular part or subpart, before you read anything else read any sections entitled scope, applicability, and definitions—SAD. Don't be sad, read SAD first.

Probably OJT word of mouth—training by rumor and innuendo, provided by a "professional" and accepted without question. Trust, but verify.

See this: "Boeing's Low-Ball Defense Bidding Has Come Back to Bite Them" https://www.defenseone.com/business/2022/04/boeings-low-ball-defense-bidding-has-come-back-bite-them/366293/

@formerfed Congress? OUR congress? The one in D.C.? The Barnum & Bailey act? What would be the status of such hires? Would they be civil servants? Would they be government employees of some other classification? The political ramifications could be very significant. Which party would have the support of such hires. Who would lose political support for voting in favor of such hires? Let us know when you get back from Fantasy Land. 😂

The solution is simple. First, what's the problem? The problem is getting offerors to propose realistic estimated costs. What is the source of the problem? Competitive pricing of cost-reimbursement contracts, which motivates offerors to low-ball estimated cost. Solution? Base source selections for cost-reimbursement contracts on offeror capability, without consideration of costs. Then negotiate estimated costs and fees one-on-one with the selectee. In other words, use the architect-engineer capability-based selection process to award cost-reimbursement contracts. Problem solved. Now go tell the idiots on Capitol Hill that their notion of "full and open competition" is 19th Century thinking.

I like that idea. I think that's true. We're doomed.

@General.Zhukov Here are the rules. FAR 15.404-1(d)(1) - (2): From ASRC Federal System Solutions, LLC, GAO B-420233, April 12, 2022: From IAP Worldwide Services, Inc., U.S. Court of Federal Claims, March 20, 2022:

You're welcome. So everyone knows, I sent a copy of the article to the contracting officer as a heads up. Also, keep in mind that the article is about a draft RFP. @here_2_helpI haven't forgotten about the photos. Coming later today.

Some acquisitions are too specialized for generalists. IT contracting should be a specialty field. IT contracting officers and contract specialists should receive special education and training. Other specialty fields are: Construction and architect-engineer contracting Research and systems development (military and space) Other research and development Long-term support services If we had real leadership in the government we would have more and better education and training and fewer fads like performance-based acquisition and agile. The government would be the lead dog on the sled team instead of the last and have a better view of the way ahead.

Are the rates covered by forward-pricing rate agreements or contract ceilings ("caps")?

@General.Zhukov If the offeror is going to do the work with people already in its employ, and if it can show what it's paying those people, and if it's cost estimate is based on those costs, then on what basis would the government say that the offeror's estimate of cost is unrealistically low? The most probable cost must reflect the likely cost to each offeror based on its own method of performance. The government cannot apply an across the board estimate of its own to all offerors.

In other words, the offeror has proposed rates that it is actually paying. Is that right? If so, then the issue is not cost-realism. Is the procurement for professional services?

@ji20874You did say that. But I want more than guidance. I want oversight. I do not want the decision left to contracting officers, good or otherwise.