Vern Edwards

Actually, a lot of offices have tried new things. They just haven't ballyhooed like DHS. An innovation is something new. But "new" is not key. Knowledge and competence are key. Sixty to 90 percent of all innovations fail. But not in contracting. In contracting innovations become "success stories". There is too much emphasis on innovation instead of just doing things intelligently and rejecting the cut and paste approach. New got us formula incentive contracts and PBSA. We don't need a lot of new and "tools". We just need to do the necessary with intelligence and facility.

I just received an announcement that the PRICE Act, Senate Bill 583, awaits the president's signature. It applies mainly to the Department of Homeland Security (DHS) and to OFPP. You can read it here: https://www.congress.gov/117/bills/s583/BILLS-117s583enr.pdf Do read it. It's only five pages long. DHS has done a lot of bragging about, and media promotion of, its Procurement Innovation Laboratory (PIL). The PRICE Act is one of the results. (Maybe the only real result.) Among other things we might be getting a new "working group" within the Chief Acquisition Officers Council. Oh, boy! This is how Washington DC works. I been through a lot of these exercises. It will be interesting to see how this one works out. In my experience, these things produce little more than phony success stories, like the phony success stories about performance-based acquisition (PBA), the greatest acquisition fiasco of all time. Never doubt the ability of a conspiracy of ambitious appointees, SESs, and Congress to make matters worse. I don't know how this legislation is in the Department's best interests with respect to the mission of keeping us secure, but it might make a career or two. Goodness! I've become such a cynic! 🤨

Everyone: Go back and look at the Czarina's question. It's reasonably clear. I wrote this for publication 9 years ago: I wonder if the upcoming final rule will clear things up. I doubt it. Look at the proposed 19.000(b). What part of what is necessary to deliver supplies or services constitutes the "performance" to which 19.000(b) refers? In the absence of clear regulatory or tribunal guidance, a CO must reason the matter through, then construct an argument to support their conclusion.

On August 12, 2019, 84 Fed. Reg. 39793, the FAR councils issued a proposed rule entitled, "Federal Acquisition Regulation: Applicability of Small Business Regulations Outside the United States." The proposed rule would change FAR 19.000(b), According to the background statement: The proposed text of 19.000(b) is as follows: The comment period ended on October 11, 2019. According to the FAR councils' semiannual regulatory agenda dated January 31, 2022, they plan to issue a final rule in March 2022. They did not indicate what the rule will say. For those of you who want more background, the Federal Register RIN is 9000-AN34.

For a scholarly (and lengthy) discussion of this topic written by an Air Force JAG officer, see Malone, Only in America! (and its outlying areas): the conflict between the SBA regulations and the FAR, and the importance of not burdening overseas and contingency contracting agencies with a requirement to execute U.S. small business set-asides, 73 A.F. L. Rev. 151 (2015). https://www.afjag.af.mil/Portals/77/documents/Law Review/AFD-150827-031.pdf?ver=twfkmKgqzZ8GV3eXzAKo1g%3d%3d You'll have to scroll down to the article. See also Mansfield, "SMALL BUSINESS PROGRAMS: Do They Apply Outside The United States?", The Nash & Cibinic Report, September 2015. (Yes, our Don Mansfield.) Since I don't think anyone has mentioned it, see Latvian Connection, LLC, Comp. Gen. B-408633, Sept. 18, 2013.F https://www.gao.gov/assets/b-408633.pdf See also Maersk Line, Limited, Comp. Gen. B-410280, Dec. 1, 2014. https://www.gao.gov/assets/b-410280.pdf

Correct.

@KeithB18 Yes, within limits. In my opinion, virtual discussion is not as effective as face-to-face. I have found that to be true even in Zoom get-togethers with old friends. Good discussion requires more than virtual allows. The interface platform gets in the way. Faces and voices are not the same. You can't see body positions or hear sighs of disagreement. The main lesson is to keep the discussion group small. I'm not sure what the limit is. More than 10 is too many. The more people in the group, the lower the participation rate. And it bothers me to be in a discussion group in which some people don't participate. I always wonder what they're thinking. I think virtual makes some people shy, unless the other participants are close colleagues. One of the keys to an effective discussion group is a high level of participation. Another thought: Don't mix newbies with knowledgable people. That might sound counterintuitive—the thought being that it will be beneficial to the newbies—but newbies will be too shy to voice an opinion or will distract the others by interrupting to ask very basic questions. Is the purpose basic education? Then put newbies in your group. If the purpose is to advance the thinking of experienced people, then put experienced people in the group. There are good arguments against that. Newbies might ask questions that make everyone think. But in my experience the group membership should reflect the objective. Pursuing the objective generally outweighs incidental benefits. When I started out, I learned a lot by listening to journeymen contract specialists debate rules and procedures. But I listened, kept my mouth shut, made notes, and then did research. I was not invited, and would not have been welcomed, as a participant. I have taught in-house sessions for government agencies and companies in which they put brand new people in with people who had 20 years of experience. Not smart, in my opinion, from a teaching point of view. That's training for the sake of saying that you've done training. The senior people get defensive if the instructor contradicts them in front of the newbies or says something contrary to what they told a newbie who's in the class, and the newbies just get confused.

@Inquiring MindWhat don't you understand? You appear to think it is improper. If so, why do you think that? You seem to doubt it. Why? Why do you think those practices are "flaws"? Is it because you've not seen them done before? What rules do you think those practices violate? Please cite them by specific reference. Chapter and verse. Maybe your thinking is based on misapprehensions or limited experience. We don't know anything about you and can't know that until you explain yourself. It's hard to explain something to someone you don't know and who has not explained their thinking.

@FAR-flung 1102I access it through a subscription service called Heinonline. It gives me access to many government records going back to our national beginning. I can see every ASPR since the very first. But it's a business expense. Depository libraries, such as those in some colleges and universities might have it. So might large public libraries. Let me see if I can find it free online. Give me a couple of days. If you are looking for something specific let me know. Leave me a message here at Wifcon.

An agency is conducting a tradeoff source selection under FAR Part 15 for a two-year, multi-million dollar, firm-fixed-price acquisition of professional services. The acquisition will be set-aside for small businesses. Since there is expected to be ample competition, the agency will not request certified cost or pricing data. Non-price and price factors will be equally important. Nonprice factors are experience and past performance. Price will be evaluated for reasonableness, but not for realism. Professional employee compensation will be evaluated on a pass/fail basis. The agency will require submission of a professional employee compensation plan in accordance with FAR 22.1103 and 52.222-46.

While that might be a valid thought with respect to price negotiations, if there are any, it might not be true in later years if the contract is audited for any reason. In what I think was the biggest (and longest) TINA/False Claims litigation in history, the United Technologies (Pratt & Whitney) aircraft engine defective pricing case, which lasted more than a decade, the Air Force was not concerned about TINA compliance at the time of contract award. The concerns were raised by a DCAA auditor years later, and led to litigation at the ASBCA and in the federal courts. Never take TINA lightly. Never ever.

@FAR-flung 1102I thought you might be interested in seeing how SUBCLINs were described in the Armed Services Procurement Regulation (ASPR) of 1976: 32 CFR Ch. 1, Subchapter A, Section 20, Administrative Matters: As a close reading will show, little has changed after more than 40 years.

@FAR-flung 1102I am aware of DFARS 204.7104 and was aware of it and consulted it when I wrote my post. I don't interpret it to prevent the use of informational SUBCLINS as I described. You say: It does not seem so to me. The SUBCLINS provide information about the CLIN. My description of CLIN structure is consistent with the DFARS passages that you quoted. Did you see my comment at the end of my post? Unfortunately, the format permissible here did not readily allow me to show the SUBCLIN descriptions in parentheses within the CLIN, which has been DOD's prescribed method for many years. Had I been able to display them in table format (as once we could) compliance with DFARS 204.7104-1(a)(2) would have been clearer.

@TNT1 You say you are a prime contractor and you want to enter into a IDIQ subcontract. But then you say there is "no overarching prime contract for this IDIQ [subcontract]." Then you say that "subsequent task orders... will have prime contracts (plural) tied to them. ??? What I think you mean by all the stuff you have posted is that you want to enter into an IDIQ contract with a company to provide supplies or services for your use when you perform under task orders issued by the Government under IDIQ contracts. You negotiated with a company a couple of years ago and reached a tentative agreement on prices. You got certified cost or pricing then, but didn't actually sign a contract. Now you want to sign a contract with that company based on the prices you negotiated back then. When you use its supplies or services in the performance of task orders, that company will be a subcontractor under those orders. What you want to know is whether you should require the company to update the cost or pricing data that it submitted two years ago before you sign a subcontract. Is that what you have been trying say? If not, what of that is not correct?

@here_2_helpet al., Thanks! I'm in Tucson exploring Sequaro National Park and the Davis-Monthan AFB "boneyard" and didn't see the decision. Going to Tombstone to visit the OK Corral. The GAO is not bound by COFC decisions and will stick to its position unless the CAFC affirms the COFC on appeal.

See also, Yates-Desbuild Joint Venture v. Department of State, CBCA 3350, 17-1 BCA P 36870:

See Kellogg Brown & Root Services, Inc., ASBCA 59385, 20-1 BCA P 37656 (2020):

A contracting officer can agree to a price increase only (1) on the basis of a clause that provides for such an increase or (2) in exchange for some consideration, except as provided in FAR Subpart 50.1.

I was taught contract line item structuring in the 1970s by the late Mary Ann Scott of the Contract Writing Office at the Air Force Space and Missile Systems Organization. She was one of the smartest (maybe the smartest), most knowledgable, most witty, and generally most delightful people I have ever known, and unbeatable at cards. Those of us who went through the training program there owe her a debt of knowledge that we cannot now repay. She comes up in conversation among us occasionally, when someone asks, "What did Mary Ann teach us." I can still see and hear her laughing (kindly) at some of my dumb ideas. Goodness. I feel myself tearing up. At my age! You can never repay your best teachers. And when they're gone you think of all your debts.

@formerfed: Interesting. Here is how I think T&M contract and order line items should be structured in accordance with FAR Subpart 4.10: CONTRACT LINE ITEM: 0001 Performance in accordance with Section C, Statement of Work QTY: 1 UNIT: Job (JO) CEILING PRICE: $XXX,XXX.XX INFORMATIONAL SUBLINE ITEMS: (See FAR 4.1004, Establishing subline items, paragraph (b), Informational subline items) 000101 Supervisory Mechanic EST. QTY: XX UNIT: Hour HOURLY RATE: $XXX.XX EST. TOTAL AMOUNT: $XXX.XX 000102 Journeyman Mechanic EST. QTY: XXX UNIT: Hour HOURLY RATE: $XXX.XX EST. TOTAL AMOUNT: $XXXXX.XX 000103 Apprentice Mechanic EST QTY: XXX UNIT: Hour HOURLY RATE: $XX.XX EST. TOTAL AMOUNT: $XXXX.XX 000104 Inspector EST QTY: X UNIT: Hour HOURLY RATE: $XXX.XX EST. TOTAL AMT: $XXX.XX 000104 Materials EST. TOTAL COST: $XXXX.XX The informational subline items are not "deliverables". They are merely information. See FAR 4.1004(b). They show the labor categories and hourly rates referred to in the payment clause and the bases for the ceiling price. Note that all quantities and totals are estimates.

Good! It's quite a read, and provides background on commercial aircraft development, what happened to the values that made Boeing one of our greatest manufacturers, and the changes in its culture that brought it down. Prepare yourself to be sad and a little angry. A close friend, very well known and respected, read the book at my suggestion and then wrote to me that it is a story of the decline of American capitalism.

The only answer I can think to give you is to read your contract and look for any clause that provides for the price adjustment that you want. Off hand, I do not know of any U.S. statute, regulation, or contract clause that would entitle you to a price adjustment based on a change to a foreign labor law. But I do not know what is in your contract. Others here are likely to ask you for more information about your contract. If you want to answer, have the contract handy.

It is interesting to say that you are acquiring something and that the less of it you get the better.

Deleted. Not worth it.

😏 Oh, Carl. 😉