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WifWaf

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  1. Oh hey, I just realized there were 8,328 comments about the rule on regulations.gov since I commented in August. Feels like that scene in Tolkien’s LOTR Return of the King, when Aragorn arrives with his Army of the Dead. 🤓🧟‍♂️
  2. @joel hoffman and @formerfed do either of you understand how the Proposed Rule implementing President Biden’s 14 Feb 2022 E.O. 14063, “Use of Project Labor Agreements for Federal Construction Projects” (FAR Case 2022-003) is supposed to improve the economy and efficiency of construction acquisition? Or does the juxtaposition of my bold emphases below say it all about this administration's understanding of our acquisition workforce? Per the Proposed Rule at “I. Background”: “The current FAR is based on the final rule in FAR Case 2009-005, Use of Project Labor Agreements for Federal Construction Projects, published April 13, 2010 (75 FR 19168). The final rule implemented E.O. 13502, which encouraged the use of PLAs for large-scale Federal construction projects valued at $25 million or more in order to promote economy and efficiency in Federal procurement. E.O. 13502 is revoked by E.O. 14063 upon the effective date of the final rule in FAR Case 2022-003.” And here is the current state of things (per its “IV. Expected Impact of the Rule”): “Currently, the regulations at FAR 22.5 encourage the use of PLAs for “large-scale federal construction projects,” which is defined as projects with a total cost of $25 million or more. According to the data collected by OMB, between the years of 2009 and 2021, there were a total of approximately 2,000 eligible contracts and the requirement for a PLA was used 12 times. Based on the information, on average there are approximately 167 eligible awards annually and approximately one award that includes the PLA requirement.” Therefore, here is the Proposed Rule’s future expectation of things? To mandate something that was once a discretionary decision between buyer and seller??? Per its “II. Discussion and Analysis”): “DoD, GSA, and NASA are proposing to revise FAR subpart 22.5, Use of Project Labor Agreements for Federal Construction Projects, to reflect the change in policy pertaining to the use of PLAs. While the reasons for using PLAs remain largely unchanged from the previous policy, use of a PLA is no longer discretionary for large-scale Federal construction projects. Agencies will be required to use a PLA for large-scale Federal construction projects unless an exception applies.” This Executive Order screams, “I don’t pay you to think,” to me. 😤
  3. To learn a little more about the survey designer’s research, check out this from her FAQ. Know that she and her instructor, Martin Seligman, Ph.D, are from a Master of Applied Positive Psychology program - “applied” being like the vocational school of colleges. “Does the message of grit imply that poverty and inequality don’t matter? “At a recent conference, I sat down next to a sociologist. She knew my work, and it didn’t take long for her to express extreme disdain—even anger—for what she called the grit message. ‘What’s that,’ I asked? ‘Well, put it this way,’ she said. ‘I happen to think that poverty and inequality matter a heck of a lot more than grit.’ I thought for a moment. Then I said, ‘I see your point.’ “If you pit grit against structural barriers to achievement, you may well decide that grit is less worthy of our attention. But I think that’s the right answer to the wrong question. “Caring about how to grow grit in our young people—no matter their socioeconomic background—doesn’t preclude concern for things other than grit. For example, I’ve spent a lot of my life in urban classrooms, both as a teacher and as a researcher. I know how much the expertise and care of the adult at the front of the room matter. And I know that a child who comes to school hungry, or scared, or without glasses to see the chalkboard, is not ready to learn. Grit alone is not going to save anyone. “But the importance of the environment is two-fold. It’s not just that you need opportunity in order to benefit from grit. It’s also that the environments our children grow up in profoundly influence their grit and every other aspect of their character. “This is the grit message in my words: Grit may not be sufficient for success, but it sure is necessary. If we want our children to have a shot at a productive and satisfying life, we adults should make it our concern to provide them with the two things all children deserve: challenges to exceed what they were able to do yesterday and the support that makes that growth possible. “So, the question is not whether we should concern ourselves with grit or structural barriers to achievement. In the most profound sense, both are important, and more than that, they are intertwined.”
  4. Grit is defined in the field of Positive Psychology as follows. "Grit is passion and perseverance for long-term goals. "One way to think about grit is to consider what grit isn’t. "Grit isn’t talent. Grit isn’t luck. Grit isn’t how intensely, for the moment, you want something. "Instead, grit is about having what some researchers call an 'ultimate concern' – a goal you care about so much that it organizes and gives meaning to almost everything you do." To see where you, as a contracts manager/analyst, fall on the grit scale, take this ten-question survey backed by the University of Pennsylvania and report back your results in this poll. When you answer questions, think about the way you are at work, not necessarily at home. https://angeladuckworth.com/grit-scale/
  5. Only an approach via negativa can solve this. Subtract to add, repeal to grow industries. American rule of law is like the computer industry of the early 2000’s: a bloated, complex book of codes just ripe for disruption by the simple iPhone. Who knows, perhaps in a decade I will be comparing the obsolescence of the overly complex F-35 weapon system to a similarly disruptive product, too. That’s me being hopeful. President Trump tried to require two rules be removed for every one final rule, but that wasn’t the disruption we needed. Perhaps there is another way.
  6. “Who said anything about that being necessary?” - Chiefs in Charge over there, Probably
  7. @Vern Edwards Reference your May 9th Recommended Reading post: I thoroughly enjoy these existential, inward-looking topics. I just finished reading Curious: The Desire to Know and Why Your Future Depends On It (Basic Books, 2014), by Ian Leslie and at your recommendation. In it, the science of learning is stated to have established two theoretical schools: one that is learner-led, like the Montessori schools of today, and one that is teacher-led and characterized by rote learning (memorization), like the medical schools of today. The author claims via his analysis of many peer-reviewed studies that only the latter school fosters beneficial curiosity. This is because curiosity, or what I think you term here as “the art of learning”, is a combination of 1. Broad, baseline knowledge made recallable, and 2. Grit. 1) Baseline knowledge (long-term memory). Leslie rightly states the difference between our human minds and those of animals, or of machine learning, is that humans are the only ones that are able to establish connections between seemingly disparate concepts and ideas. This works so long as one end of the connection being made is an idea previously committed to one’s long-term memory. His statement supports the need for memorizing baseline knowledge of a myriad breadth, so that all new information we encounter can subconsciously be run against that baseline in a search for viable connections. The space between those connections is what makes us human. So, my connection between your OP yesterday (art of learning) and your Reference post (curiosity) is an example of these connections being made above some ape’s ability, and this post I am writing now is what makes me human as opposed to machine. 2) Grit (dedication to continue connecting). This is a tough one for anyone who’s used to instant gratification (“puzzle solving”, as Leslie puts it). Its deficiency in some is the reason society has to warn us to stay in school. Getting through the minutiae of the thing means there are a lot of mysterious, failed connections. Fears of rejection or uselessness ensue, but when one finally occurs it all pays off. I feel good to have made this connection here today, for example. Reason being, I am now bolstered in my understanding of the book, making me better prepared and more confident to defend my ways against someone else’s poorly supported ways. This confidence means I can chart a path forward for years to come. It may come in handy when, for example, a fellow parent recommends to me I raise my kids entirely the Montessori way, based only on anecdotal evidence like how the Google founders (those masters of making mysteries seem like puzzles) recommend it in their biographies.
  8. FAR pricing policy says to use all government resources first. Ask your DCMA DACO if they can provide the CACO’s most recent financial capability review of the offeror’s parent company from the DCMA Financial Capability Group. If there isn’t one available, read the DCMA Policy called Financial Analysis, and see if your pricers could apply anything from it for your purposes using the parent company’s publicly posted SEC filings (assuming they’re publicly traded). DID your RFP require financial capability information from offerors?
  9. My emphasis above certainly looks like "gaining from disruption." Thanks Guardian!
  10. The writing style is a bit wily but after enough pages it made an acolyte of me and became endearing (and often humorous). After a while in the limelight, this author has become a savant. See The Black Swan: The Impact of the Highly Improbable (Random House, 2007), by Taleb. See how that term has since been used by the learned: https://federalnewsnetwork.com/air-force/2022/06/air-force-thinking-of-new-ways-to-handle-black-swan-events-in-acquisition/?readmore=1
  11. Reference is made to this recent question by Vern, and to this whole thread from last year: I have been reading a book called Antifragile: Things That Gain from Disorder (Random House, 2012), by Nassim Nicholas Taleb. It’s a rich, intense work, but its main takeaway for this post is that, instead of basing one’s decisions on predictions of the future, one can learn to reliably bet against others’ predictions here in the present. The author likens this to measuring the strength of the plainly visible string holding up the Sword of Damocles, rather than guessing when it will fall. Doing so helps us avoid relying on the weakest strings around us. This theme resonates to many domains, including ours: as a business advisor (or at least a devil’s advocate), a CO who examines a PM’s risk register should consider this alternate viewpoint. At the highest levels, the Congressional Budget Office could consider taking this alternate viewpoint for a living. Respect for the ancients is another theme of the book. Technology is best when it removes (makes obsolete) or hides existing technology, the author says. Think about that. Shoes are essentially the same blocks as they were when ancient Egyptians were mummified in them. Shoes on a nature hike, where we want to feel the ground, are unfortunately like wearing casts on our feet, cutting us off from one of our senses. So, the best shoe technology is coming from the companies that are innovating to just give us the callouses of a Native American hunter-gatherer, and removing all the other technological fluff. I myself hate needing to rely on something unnatural and clunky to live my life (e.g. a Peloton bike just to work out), so this certainly made sense to me in today’s trend-driven American markets. You can do a Google search for the Latin “via negativa” to learn more on this subject - it is the richest part of the book. Well into the book, the author makes a statement that lawmakers need to subtract problematic laws. In the same chapter, Steve Jobs is quoted on innovation when he said “I’m as proud of many of the things we haven’t done as the things we have done. Innovation is saying no to a thousand things.” The context of this quote in Antifragile is that it is used to comment on technological innovation mostly, but then the subject of lawmaking is finally revisited at the very end of the book. Complex systems of law are stated to be benefitting former regulators only, at the expense of our country and its taxpayers. While the context of this revisit is in regards to bankers and the Federal Reserve, I could not help but think of our own sector’s revolving door problem. “The more complicated the regulation, the more prone to arbitrages by insiders,” he says. Yea, I enjoyed this book. To boil down what I grasp now after reading Antifragile, it’s this. We live in a time where everyone wants to set our country in their own priority’s direction through innovative ideas, and at the same time everyone thinks they can predict the future using data overload. After reading this book, my learned opinion is, though, that the lawmakers we elect should be those that are humble enough to see their own ignorance of the future, and instead want to focus their efforts on examining and reinforcing the string holding up that sword over our collective head.
  12. To be clear, I think tolerance is good. I’m an American and we all need to tolerate our fellow Americans. But too many priorities and unclear direction is a problem every American faces today. When we tolerate enough people with poorly developed priorities, we collectively head in the wrong direction. It’s so simple. History is waiting to tell our kids this. I wonder, how I can impart my ability to prioritize on others? If I don’t, my kids will just follow someone else’s agenda, like this one.
  13. From the President’s Management Agenda, we get, “Priority 1: Strengthening and Empowering the Federal Workforce … “Make every Federal job a good job, where all employees are engaged, supported, heard, and empowered, with opportunities to learn, grow, join a union and have an effective voice in their workplaces through their union, and thrive throughout their careers.” This president’s management agenda is hopelessly out of touch with reality and represents a total lack of direction.
  14. I see the Senate's version is also on the Legislation page now (thank you so much, Bob). Since the Senate's version is more cumbersome, containing the House's version plus additional reporting mandates, I wonder if this House version's contents will pass?! Significant changes are proposed to the commercial product definition in this bill. Also the progress payment rate is poised to significantly affect large business' internal rates of return. These were hot-button issues for the Director, Defense Pricing over the past decade.
  15. Is there an organization out there that can proctor this as a sort of exam, before these newbies are hired? The newbies could be instructed to list their exercise results on their resume, and to list the organization’s representative as a reference.
  16. If you are in this business for accolades, you are going to be a manager. Congratulations. You’ll talk your way through one big award, get that promotion, and then have your supervisory responsibilities and interoffice politics be the focus of the rest of your career. Why we still call you 1102 and not an 0343 at that point, nobody knows. if you are in this business for the art of it, don’t go after those big awards until you reach mid-career. Instead, practice what is preached on this website under the review thresholds where only you and your supervisor know what you’re doing - like it’s some big secret. You’ll be recognized as a thought leader when you get to mid-career and start applying sound principles to those big awards. Templates and samples are touted by the managers, folks. Edit them and let the managers take all the credit.
  17. Isn't that amazing? If we cannot read our solicitations and apply what they say, the rule-making process here actually made it more difficult for nontraditional defense contractors to enter the market. That is where I have been coming from in this thread. The essential information from the above link as applied to this thread and some background info (for beginners) is that: DOD created DFARS 252.215-7010 four years ago and now prescribes it in lieu of FAR 52.215-20. The -7010 provision includes a flowdown requirement and the -20 provision did not. The -20 provision relied on FAR 52.215-12 as the operative clause for determining to grant subcontractors certified cost/pricing data exceptions. FAR 52.215-12 includes a flowdown requirement. FAR 52.215-12 wholly relies on the FAR's certified cost/pricing data exceptions with no relaxation of their statutory language - unlike the -7010 provision, which may inadvertently contradict it (if applied by primes to subcontractors), at paragraph (b)(ii)(3)(E) quoted above. The FAR 52.215-12 clause is still required alongside the -7010 provision. The DAR Council's wording of -7010 is written in a way where practitioners cannot agree whether prime contractors should be flowing down -7010(b)'s more relaxed language to include a nontraditional defense (sub)contractor exception, or should continue only flowing down FAR 52.215-12's statutory exceptions. If nontraditional defense subcontractors are just a myth and a misnomer, I would say there's traction for a FAR 1.502 unsolicited proposed revision to the DFARS here, and the DAR Council's own Federal Register comment (quoted by Don above) is all the data and rationale needed to permit its evaluation. My revision to the DFARS would be to remove the flowdown requirement from -7010, and to furthermore amend DFARS 252.215-7013, "Supplies and Services Provided by Nontraditional Defense Contractors", to say "10 U.S.C 2380a provides DoD with the permissive authority to treat items and services provided by nontraditional defense contractors as commercial items. This authority was neither mandatory nor was it extended to prime contractor commercial item determinations for subcontracted items and services." What would yours be, Fara?
  18. Hi to you. I would define it as this: “Conformed contract” means the award vehicle with all its modifications made to it. I am government. ww
  19. In traditional sole-source-prime negotiations of subcontract costs, the CID is the prime’s to write and provide to the CO. The prime implores the CO to agree with him about his proposal to grant the subcontractor a commercial item exception, because the CO will then relent on pursuing the sub’s certified cost data and cost analysis. The prime does this by arguing for the exact way(s) it meets the Commercial Product or Commercial Service definitions. Those definitions are a negotiation standard, albeit ones where the CO has little leverage as I’ve said. In the nontraditional case though, the prime simply provides the CO the attestation from the provision that I have put in quotes above. There’s no negotiation standard, because either the government or the prime, depending on your stance in this debate, has all the power. Even though primes don't have the statutory power as Don pointed out, they have the negotiation power when they're sole-source. They can refuse to budge. Quite a precarious position to be in with no procedures, guidance, and instruction on the subject. You will have to use your judgment! It helps to not care if you don’t get the cost data because your market research can negotiate a fair and reasonable price via price analysis instead. They call it "negotiation jujitsu" when you can use the other party's power against them, right? Where are my Art of War readers? Or at least, where are my MMA fans.
  20. Yes, that’s my advice to contractors. And for COs, my advice is this: read read read, as your DFARS PGI 215.403-1 instructs, the DOD Guidebook for Acquiring Commercial Items Part B: “Pricing Commercial Items”. Be ready for sole-source contractors to challenge you by saying there is no requirement in your solicitation for their subcontractor to submit cost data. The holes in the government’s noncommerciality arguments are so big you could drive a Mack truck through them - and they’re growing - because Congress stacked the deck against you. So embrace the challenge of having to throw out your old process and templates where the sub submits a cost build-up and gets audited, and begin gathering market research on your upcoming subcontract costs instead.
  21. No, the provision at DFARS 252.215-7010 doesn’t. Do you agree with me that primes don’t follow FAR/DFARS Part 12 when they award subcontracts?
  22. I don’t think I agree with any of that, Fara. Read the provision. It sets forth nontraditional defense contractor as a basis for the commercial item exception right alongside “items previously determined commercial.” The two bases for the exception are equal in the eyes of the provision. That one is subparagraph (A), and this one is (E): “(E) For items provided by nontraditional defense contractors, a statement that the entity is not currently performing and has not performed, for at least the 1-year period preceding the solicitation of sources by DoD for the procurement or transaction, any contract or subcontract for DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section.” Is there a DFARS or PGI you are thinking of that adds red tape to the CO’s acceptance of this basis in negotiations with the prime contractor? Or what?
  23. The question in bold at the top reflects a fundamental misunderstanding. Subcontractors don’t get awarded anything using FAR procedures. They get awarded business-to-business subcontracts under uniform commercial code or common law. The subcontracts also include what the prime contract’s FAR-based clauses and provisions say must be applied to subcontracts (i.e., they get the flowdowns). One of those flowdowns is usually DFARS 252.215-7010, requiring certified cost or pricing data be submitted to the prime contractor. Now, understanding all that, if the prime solicitation doesn’t include this provision, then does that answer your question? If still unsatisfied, read on. If the flowdown must occur, then the subcontractor may, however, be excepted from this provision’s certified data requirement. As you may know, commercial items are one of those exceptions. As I am trying to point out and have you read, DFARS 252.215-7010 details how a prime contractor can respond to the CO’s solicitation by saying the subcontract is for a commercial item. There are five provided reasons it can be commercial. One of those five is “nontraditional defense contractor.” If you are seeking some other advantage for a subcontract to be called nontraditional, please let us know. I have fully described the advantage in terms of certified data requirements for you, though.
  24. Joel and Carl, you raise the question: what is the Government's intended purpose for including an inspection clause? Yes yes, I agree with you that there are clauses available for the CO and COR to gang up on the Contractor's Contracts Manager. These are there to fall back on, despite the Contracts Manager and very likely the CO not having read them at the time of meeting minds and signing. I have had to use these myself, and the effect on a contract like the described situation here is usually ticky tacky and saves us a few bucks for a few months, at great expense of time, and with much hand-wringing. But I said: And I meant the inspection clause and its saber-rattling language ideally deters bad performance. It is best used as something we point to in Section B or C alongside the description of the most critical thing we are buying, to highlight what matters most to us be performed. That way the Contractor's President on up cannot miss the CO carrying a big stick. Joel, read FAR 52.246-4 again, and highlight to yourself where it says "contract requirements". When you see its use of that term, what do you think the Contractor thinks it means in kburnett's stated situation? There is no NSN for services. This term is really up to us to define unambiguously and with a mission-focus in the solicitation, through our tradecraft of writing the CLIN description or statement of work.
  25. Should have come up with the value at solicitation stage. It’s too late for this inspection to have its intended effect. @kburnett4112, use this experience to work on improving the performance requirements summary and CLIN structure for your next TO/contract.
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