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WifWaf

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  1. I would argue with the writer of this slide that this exact quoted language is irrelevant and he/she should clarify the premise behind giving this guidance. I surmise he/she did not get a legal review on the guidance and is just addressing concerns of ignorant COs asking this of GSA. A FSS Order is a separate contract from the FSS according to the SCOTUS. See Kingdomware Technologies, Inc., v. U.S., 136 S.Ct. 1969 at page 1978 (2016) decision, "The placement of the order creates a new contract; the underlying FSS contract gives the Government the option to buy, but it does not require the Government to make a purchase or expend funds." If that is so, then you have to modify that separate contract regardless of the underlying contract. It was only "underlying" during the solicitation process of your Order. Based on my own uneducated reading of this case law I think FSS Solicitation Refreshes to include the COVID clause are not going to get me off the hook to mod my contract, regardless even of what the GSA CO writes into the underlying contract upon inserting it. That said I will wait and see what they write into it, because I want a meeting of the minds with my contractor that my Agency's clause is the requirement, not GSA's. I don't do knee jerk reactions in my work, personally. No one on that post questioned including the clause on prime, commercial contracts. They questioned if the clause's paragraph (d) "Subcontracts" requires flowdown to commercial subcontractors. Thanks for the brilliant, concise answer to the OP, Vern. If it's that easy then I envy the Single-Agency IDIQ COs at the Task Order level that can just sit back and wait for their colleague to blanket-apply the clause.
  2. I'm in the same boat as you. The day of reckoning is on us - as contracting professionals we needed to know the answers to these questions yesterday. What I have found applies to my GSA FSS orders only as decided by the SCOTUS, so I cannot help you with your stated circumstances being a Single-Agency IDIQ. If you want any help with GSA contracts, let me know. If not, I'll stand back and watch the experts of this forum help you.
  3. Would the Course of Performance Rule support this in a court of law? That rule is that, all things the same, treat every contract ambiguity like you have treated it before and, if it was accepted by the other party before, you are not at fault for the other party's new interpretation of it this time. To succeed with that argument in court, though, you must prove an ambiguity in a contract exists. Is this clause language ambiguous? Microsoft Word - TAB A - 2021-O0009 Deviation Memo - Final (osd.mil) Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House
  4. Here are some important questions related to this topic that no one in my office can answer. I figured I should poll the Forum before I make a hasty mistake. Does anyone know if/when GSA plans to update all of the MAS terms and conditions to insert the clause from the CAAC's Deviation memo into them? Contracts Online Home (gsa.gov) If GSA inserts the clause, would an Agency's: Order issued through a BPA awarded previously under the MAS (prior to that clause insertion at the MAS level) need to be modified to incorporate this clause revision? Order issued directly against the MAS previously (prior to that clause insertion at the MAS level) need to be modified to incorporate this clause revision? If GSA does not insert the clause, does the Agency's BPA previously awarded under the MAS need to insert the clause before the Order can insert the clause? Please advise on basic contracting principles, oh trusty Wifcon. I will keep any and all references to case law so I don't have to ask again. Today I am just in a time crunch and I have no quick recall on these subjects.
  5. I remember back when these descriptors fit me... earlier this month when I replied to this thread and proposed we solicit compliance demos in our RFPs. Thanks to Wifcon, I was able to discuss that idea in a testing ground with my peers (and Vern). The result of this collaborative process is best summed up by @Vern Edwards, and is shown for all to see now at the top of this webpage, right next to Joel's self-portrait! Good job, team (and @joel hoffman)
  6. I remember the latest change to working capital policies went over like a lead balloon. From the report: “In August 2018, DOD introduced a proposed rule that was intended to use contract financing rates to help incentivize contractor performance and to implement Section 831. The proposed rule would have set a base progress payment rate for large businesses (specifically, for other than small businesses) at 50 percent and small businesses at 90 percent. At the same time, however, the proposed rule provided opportunities to increase the rate if the contractor achieved certain enterprise-wide priorities such as meeting contract delivery dates.” Was the rule-maker too aware of the linkage between USG financing and internal rate of return? Was this perhaps just feigned outrage by industry advocates? Regardless of the optics at this enterprise level, we at the working level could all learn a thing or two by understanding the buying power of IRR.
  7. In my experience they are incentives given personally by me, as a CO, to the other side’s negotiator, during negotiations (not during performance), to make him/her personally see to it that the company prices what I request in other negotiation items. What is a Technology Incentive on a FFP Sustainment contract? It’s payment for whatever my technical analyst says would be nice to have in the proposal’s CLIN price. And, in return, it’s a new bullet on that negotiator’s appeal to the boss for a nice bonus/promotion. The timing of when you hang this carrot out there really matters. Same concept as the timing of putting a stick on the table upfront (see thread in this Forum about decrementing profit at outset of negotiations for poor/lacking subcontract analyses in proposal). In this carrot case, you may need to hang it out there during fact-finding.
  8. Am I the only one that has mistakenly over-incentivized the use of progress payments by blindly skipping through the DD 1547 form and entering into Block 25's "Costs Financed" the costs the USG is financing? Adding profit on top of the time value of money is dumb. It's clearly supposed to be the inverse of the amount the USG is financing (i.e. the amount the contractor has to cover after USG financing), per DFARS and common sense. Because the output of this Working Capital section is just more profit on that amount. A lot of the DFARS at this Subsection has always seemed to promote thoughtfulness. Why it had to be output into a form DD 1547, though, is a mystery to me, and just increases the chance of dumb mistakes like the one I describe above to occur. A PNM should be required to attach a printout of the DFARS here, documenting where the negotiator walked through and wrote in the margins all of his/her selections for the various factors. It should not need to be boiled down to spreadsheet data entry nor a one-page form covering the tens of pages of thoughtful decisions made in selecting numbers for each factor. I wrote a PNM once that included a marked-up copy of this DFARS Subsection as an attachment, and have recommended it be done by the Contract Negotiator/Specialist ever since, because I don't want their data entry brain to activate here. I want their thoughts. Anyhow, while we wait for anyone that helped develop the DD Form 1547 to arrive to this thread, I would pose a question to the OP. Does that Block 25 Cost Financed amount really need a profit motive for the contractor to cover the 10-20% of costs that are not being financed by Uncle Sam? Or is that just the DFARS being overly generous. I always thought the FAR was being generous providing financing for cheap (progress payments), which is why I ask. If a motive is needed here, does the DFARS 215.404-71-3(b)(8) limit of 4 percent make sense from an industry perspective? Interested to hear your thoughts here @Patrick Mathern, and any basis for a different percent of contract costs. DD Form 1547 - Weighted Guidelines Tool (dau.edu)
  9. Used to be SAM.gov's Entity Search function was open for public viewing, including their reps and certs. With the website's most recent version update, you must be signed in as a registered user to get access to an entity's FAR 52.219-1 size attestation. This may have unintentionally impeded compliance with FAR 52.219-14 for those primes using the new similarly situated entity authority. I'd be interested to hear if that's the case from a prime in this Subcontract Management Forum.
  10. This is not settled the way you so state, although I can see how @Don Mansfield's quote from the strangely worded conclusion the SBA's rule-maker wrote in 2016 would lead one to believe it was settled that way. She was talking about requiring compliance reporting from just the SBs using the new similarly situated entity rule... and she confused us all. In context, though, the next few paragraphs in Don's 81 FR 34247 citation after his quote are all about looking forward to the future, where a Proposed Rule would settle this requirement for LOS compliance reporting (for all SBs): So, I followed the rabbit hole and located their Proposed Rule, at 83 FR 62519 and 62520, dated 12/4/2018: From there, after apparently no comments advocating an outright hands-off approach, we got the resulting Final Rule on 11/29/2019 (https://www.federalregister.gov/d/2019-25517/p-36) and it produced the 13 CFR 125.6(e)(4) allowance that COs may request invoices. Clear as mud? My point is, the conclusion COs reading this thread must reach is not exactly, "[T]here is no requirement on the contractor for LOS compliance reporting," it is that the CO has the power to impose a demonstration of compliance at his/her discretion, and may do so by reviewing invoices. 13 CFR 125.6(e)(4) now says what is quoted below (emphasis added). But as has been stated in this thread this is not a good use of a COs time due to inherent loopholes in the calculation. You can maybe use this allowance to catch the bad actor who subcontracted out 90% of a service because he was not aware of the rule or mistakenly believed it did not apply to commercial services, but, that's about all this is good for. In the CO's toolbox, 13 CFR 125.6(e)(4) is the obscure Torx screwdriver - fit for one job then rarely used again.
  11. Oof, that's a right hook I didn't expect. I get a feeling you were dealing with men when you were a CO. I am dealing with lobbyist weasels. They're like man, except they have your Agency director and Senator on speed-dial 😁 "If one party at the table is trying to take an unfair advantage of the other party, the element of good faith is not present, hence you have no real negotiation." Gordon Wade Rule, The Art of Negotiation
  12. @Vern EdwardsWhether I like it or not, as a typical overburdened CO carrying out contract administration in this "utopia of rules" you describe above, whenever I decide to enforce or improve compliance against the Contractor's current interpretation of a rule, I must be very careful to avoid government overreach. To overreach without the explicit backing of regulation is to lose all credibility with your industry partner, because the very culture is based on compliance with these rules. I often find I am left unable to provide the proper amount of time needed to deal with the Contractor's counterarguing legal opinion if I was not properly armed by our friends in the original rule-making process. These days when I scan a new Proposed Rule, I am always approaching my review as an advocate for armament of the CO with the written words needed to carry out Congress's intent. This rule-making process (i.e. "promulgation") is my one shot to help future WifWaf do his job! I wish more COs would comment on the Proposed Rules pertaining to their work by searching for it at regulations.gov, e.g., this LOS one was a quick search for "FAR Case 2016-011". To do so is to carry out a civic duty and help improve a rule, but it is also a way that Government contracting will gain credibility by input from a diversity of perspectives. It's okay if my suggested addition of a subparagraph or tweak of language gets shot down by the rule-maker. The output into the FAR is up to them. @C Culhamand @joel hoffman and others, you all know this well, but I hope to draw attention to it for our readers. Supply me with a responsibility in the FAR and I can point to that when I initiate the conversation with my counterpart at the Contractor. Supply me with a well-written limitation in the FAR and I will point to that when the counterargument for a different interpretation comes from their fancy government lawyer on retainer. This occurs much more often when I am dealing with a large business. In the case of improving LOS compliance with a SB, a CO may have better luck just having a common-sense conversation about meeting the spirit of the rule. In the case of something as far-reaching as this latest Proposed Rule for example, though... https://www.federalregister.gov/d/2021-18339 ...I may need help from my fellow COs predicting ripple effects. This is a topic for another discussion, but think: what does future you need to point to in the FAR to demand the Contractor help you perform a review of, "[I]nformation submitted by the offeror of recent purchase prices paid by the Government and commercial customers for the same or similar commercial items under comparable terms and conditions?" Ask now or forever hold your peace, I say. Or go discuss it in the Proposed Rule forum here to refine it before you ask. And yes, you can ask anonymously on regulations.gov. Just ask!
  13. @C CulhamThat's more refined than you know. I think you're right, the USG doesn't solicit the actual calculation, because it is a certification to be examined during responsibility determination, not something for proposal evaluation. After all: Emphasis added. In that case, the applied calculation must not be solicited. Oops - 13 CFR 125.6(d)(2) even explicitly calls it an "element of responsibility". Furthermore, why am I even attempting to enforce this compliance during performance? I just read 13 CFR 125.6 and FAR Subpart 19.5, and I drilled down through the Service-Branch regs, all without finding a single imperative CO Responsibility to determine LOS compliance. All I found is "Contracting officers may, at their discretion, require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during performance and upon completion of a contract" (13 CFR 125.6(e)(4)). If that is the case, I suppose the weeds of this calculation are best left to post-award orientation conference banter, if they even come up at all between CO and and awardee. Fine by me - I don't need more work to do. Someone tell DPAP and the CAAC if they need COs to do anything here, they have another class deviation to write. Criminy, @Vern Edwards, the time we've wasted on this! 😂 There are 154 "Contracting Officer shall" statements in FAR Part 19, but none apply here. I'm frustrated, but not surprised. If anyone so chooses to take up the SBA on that "CO may" duty, try using the above calculation, and let us know how it goes.
  14. Correct, thank you for explaining Joel. @govtacct02 I edited the OP to specify negotiation of a noncommercial item. It can be comprised of some commercial item supplies, though.
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