Misty

Ah. I see. Good point. Thanks!

@Vern Edwards"I would like to see the agency's argument in support of the notion that all software development services employing agile methods are commercial services." Me too. It is definitely something I will attempt to explore deeper when it is a less volatile subject as it directly impacts acquisitions that I am assigned as CO and it is not a welcome discussion at the moment. When the time is right, I will try to separate it from the impact on my current acquisitions and try to explore the agency's position in general terms. I would love to be able to have a very candid private conversation with someone that has a strong background in contracting, especially with experience contracting for large value information technology services, outside of the chain of command that would not result in unnecessary turmoil. Just professional sounding board type discussions really. I worked with DoD for 20 years and switched to a new agency a little over a year ago (during the Pandemic) in following my husband to Washington DC. Starting during the pandemic, new to DC, I have not had the same opportunity to develop relationships and networks of mentors that I might have in a physical environment. Any recommendations for 1102 networks and mentors in DC?

That makes sense with regard to identifying an end-state but still not having an ability to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of confidence for services which require diagnostic evaluation and repair type work. We always handled these as UCAs with FFP contract type. I am used to relying on T&M when we don't have a clearly defined end-state but I can see how that may not always be the case.

@Don Mansfield - I suppose I meant "data" as defined within the clause (52.227-17) rather than "technical data". 52.227-17 Data means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

You can't separate the question about funding from the attribute of being severable vs non-severable. The answer to the funding question related to annual funds used beyond 12 months depends on the attribute of being severable or non-severable. If it is non-severable, annual funding can be extended beyond 12 months in order to support delivery of the tangible benefit. Non-severable services indicate that the Government would not receive a tangible benefit until the defined end-state is delivered. The nature of T&M is that there is no defined end-state, they are severable services by definition. Yes, annual funds can be used for non-severable services well beyond 12 months, if that is how long it takes to obtain the defined end-state. No, annual funds cannot be used beyond 12 months for severable services.

No, but the Government needs unlimited rights. One of the objectives is preventing the Government from being "locked in" to a specific source in the future. We need to be able to share it, change it and expand upon it. If the Contractor uses it somewhere else as well, that would be fine.

I have witnessed this as well to the extent that it manifests as gaslighting for opposing views that are easily supported. "I just don't think you supported your case well enough..." I supported my case but it fell on def ears. I have a strong enough background to recognize when I am being gaslighted in contracting and I am disappointed to recognize that it is a tactic that is being used. Having to build a fully documented rock solid case for every miniscule decision you might make throughout the contracting process is also exhausting and time consuming. I have been punished with illogical and unrelated paperwork for not doing things exactly as someone in the review chain directed. If you do it my way, you only have to do this. But if you chose to do it your way, I need this, this and this. It's not that it can't be done. But if you dare to do it, it will be painful and time consuming for no logical reason. With regard to the original topic, I think there is a balance. If contract specialists get too comfortable relying on me for every little thing, I often answer their questions with questions. They come to you because it is easy and effective. They will not come to you if it is not easy or effective. "Where would you look in the FAR to find the answer to that question..." Help lead them to their own conclusions. By asking the questions, you can start to identify where their gaps and limitations are and perhaps provide them with training or exercises to fills those gaps. It is time consuming but half of our job as contracting officers is bring in the next generation of contracting professionals. Yes, I note that the original post was regarding CO's that don't know the basics and are not interested in taking it upon themselves to look it up. They just have not been conditioned properly. They are where they are. It is what it is. You have identified the problem. The solution is to meet them where they are and lead them to where you want them to be.

We are using the clause 52.227-17 to establish unlimited rights in the technical data first produced under the contract, including source code, which is a deliverable.

That is what I am going to go with. I like the idea of applying logic to the FAR, though it is a curious concept to me. There are a lot of things that seem rather illogical in the FAR.

I am not with DoD currently, no.

Could agile services fall under the definition of special works as described here: FAR 27.405-1 Special Works: (a)(9) The development of computer software programs, where the program- (ii) Is agency mission sensitive, and release could prejudice agency mission, programs, or follow-on acquisitions. Source code falls under the technical data definition and the intent is to establish unlimited rights. Just trying to make sure that the "shall presume" under FAR part 12 does not get in the way. DAU training associates the funding source with technical data rights as demonstrated in the slide below. We are not subject to the DFARs though.

We are purchasing agile services and agency position is that agile services are always commercial. We are including 52.227-17, Data Rights in Special Works and all source code first produced under this contract will be a deliverable which is subject to 52.227-17. Source code falls under technical data. Does FAR 12.211 which states that "Contracting Officers shall presume that data delivered under a contract for commercial items was delivered at private expense" have implications on our assertion of rights since we are buying under FAR part 12? The prescription for clause 52.227-17 does not exclude FAR part 12 buys but if we are required to presume it was produced at private expense, there seems to be a conflict.

It was the OSDBU that pushed for use of GSA schedule, despite the fact that there is no reasonable expectation that two small businesses, even on GSA schedule, can successfully perform the work. CPO signature on our procurement strategy included a contingency that requires use of GSA schedule which means that it will be commercial, whether or not we can defend a position that it is not commercial (again, per my initial post, I wish we had addressed commerciality in step one but it's not part of our local process and I am running against the argument that anything with IT labor categories that can be found in the commercial world are commercial IT services). As the CO, I was not invited to the conversation with CPO and OSDBU but I was told that it was political and to "let it go". From the questions that were presented, it sounded like OSDBU was off in left field somewhere. I voiced my concerns and stated my position but it sounds like it is not a CO decision.

I agree that relying on industry to tell us whether a service is commercial or non-commercial is risky considering the balance of leverage seems to shift in favor of the contractor with commercial and in favor of the Government if non-commercial. We received two responses: Response from Contractor A (an incumbent supporting the program): (In short) "We do not believe these are commercial items. Several things being developed have not been done before and do not have a standard schedule pricing. In particular, some facets of the data infrastructure that we are developing now for the program are pushing the limits of the open source graph database beyond what has ever been published and is essentially extending and creating new capability. I do not think that you can acquire those types of services as commercial items." Response from Contractor B (not an incumbent but a witness to a summary of the description of work): "The services being procured to support the program are commercial services. The description states: "The Contractor shall use the Government-provided virtual environment including development workstations, development integration, testing and production. The Government will provide and support these environments, which are hosted in cloud service provider infrastructure, currently Amazon Web Services (AWS). The Government will provide and support the infrastructure.” The nature of the “virtual environments” listed above are arguably and reasonably commercially available items, because the virtual environments aren’t exclusive for Government use. In addition, the virtual environment and its tools within the environment reside in AWS, which is a commercially available item in the commercial marketplace used by the general public or non-governmental entities for purposes other than governmental purposes as well. Despite the modifications that the program has received to be tailored for Government use and purpose, FAR 2.101 outlines that there can be minor modifications as long as it does not “significantly alter the nongovernmental function or essential physical characteristics of an item”. They later state that CIO-SP3 is a better vehicle to support the requirement because CIO-SP3 has a "scope covering all things IT and boasts the capabilities of its contractors within many cutting-edge technological areas, including cloud. In a comparison on contractor pools across various IT contract vehicles, the Government can be assured that the requirements for CIO-SP3 were some of the most rigorous, especially in comparison to the requirements for award on a GSA Schedule. Additionally, CIO-SP3 allows for all order types, the inclusion of unique professional skills other than the standard CIO-SP3 labor categories, as well as ODCs and out of scope services to be added at the task order level at the ordering agency’s discretion, with no changes to the master contract or additional tracking at the task order level. For this requirement, given the specialized nature of the labor categories we would recommend that CIO-SP3 would be a better fit because in accordance with H.1.1 Unique Professional Skills of the CIO-SP3 contract offerors could respond to those exact labor categories provided by your organization when asking for feedback on labor categories. This would eliminate the need for trying to map these skills to existing labor categories on GSA MAS or the standard CIO-SP3 labor categories which may not be the best fit." The last sentence of the second response seems to contradict his conclusion that it would be commercial (if we consider just the labor categories), however, CIO-SP3 does support both contract types (which is why I think the labor category availability in the commercial sector is a feeble argument. I am not familiar with any IT labor category that is not available in the commercial world. That would mean no IT service should ever be purchased using noncommercial procedures). I did ask the technical folks to "show that the methods (hardware, software, processes, and procedures) that the contractors must use when rendering their services to the Government are not in use in the commercial sector", however, I think the decision has already been made by the higher level reviewers for this requirement.

We have conducted market research and as a follow up, I have also reached out to industry asking them to provide equivalent labor categories on their commercial contracts, ensuing that their commercial contract supports the security requirements and asking them to respond to the following questions: Based on your understanding of the these requirements, do you believe that the services are or are not commercial services? Why? Is GSA IT 70 the best contract to support these requirements? What are the benefits and risks (to industry and the Government) in comparison to CIO-SP3? Are there terms and conditions in either contract which would make them incongruent with our requirements? I'm still waiting for the responses.