WifWaf

I'm going to get into the weeds here. Per the decision, these were services where, "Military personnel enroll in the course to learn, inter alia, 'contractor management' and the 'development of acquisition-ready requirements packages.'" Sounds to me like courses for CORs. Per the oral arguments on September 2, 2021, though, JKB's lawyer alluded that these were services for, "[T]eaching government employees government regulations that they will utilize as government contracting officers to procure goods for the government." If this contract were written by COs acquiring professional expertise to teach other COs the regulations, then the irony that neither side of the contract could make a logical argument about the FAR in court would be quite thick. If these courses were not for COs, then JKB's oral argument last September was even less defensible, and all its arguments lose a bit of credibility. I was curious about an answer to this, so I tracked the award down on USAspending.gov: IDV to JKB SOLUTIONS AND SERVICES, LLC | USAspending. The description of this contract at the link says the Army Logistics University (ALU) at Ft. Lee required these services for its Operational Contract Support courses. From the ALU's website, About Us link, I found "The College of Professional and Continuing Education [CPCE] conducts functional education and training of military and civilian students in the areas of...acquisition and contracting education for both acquisition career field officers and civilians, and non-contracting professionals in the area of operational contracting support." The course being procured by this IDV falls under ALU CPCE's curriculum for non-contracting professionals, and is therefore not, "Teaching government employees government regulations that they will utilize as government contracting officers", contrary to JKB counsel's oral argument. Flying back up to 30,000 ft, I have an observation. We look up to experts in our career field. A lot of people go work in niche fields so they can be experts and have people seek them out. DCAA and DCMA are full of these experts, holding down some of the best job security in the American economy. Northrop Grumman, Lockheed, etc. compliance departments and counsel are as well. The money is in expertise! I think it only natural for the complexity of rules to deepen in government contracting when the incentives of higher pay and lifelong security are linked to that complexity. I would argue confusing regulations like the Contractor Business Systems rules, CAS, etc. created excellent niches for people in DCMA and in large businesses - so no one hesitates to act like a little economic unit, and go pursue the jobs associated with these rules. The reformers that want government contracting to just go commercial must be aware that subconscious bias and concerns for financial hygiene are operating against them all throughout the ranks, on both sides of contracts.

“A key rule about strengths, weaknesses, and deficiencies appears in FAR 15.305(a): ‘The relative strengths, deficiencies, significant weaknesses, and risks supporting proposal evaluation shall be documented in the contract file.’ That is the only mention of strengths in FAR Part 15. (Read that rule again and see if it makes sense to you upon reflection. Do strengths, weaknesses, and deficiencies ‘support’ proposal evaluations, or are they evaluation findings that must be supported?)” Without a standard in the SSP, SSAs and source selection board members tend to stack up one proposal’s strengths against another proposal’s strengths, cancel a few out through identification of weaknesses, and then declare a winner by evidence of the numbers in a table displaying total S vs. W. They behave like this naturally. I wonder if it is just something inherent in our intuitive, system 1* thinking. The brain’s intuition is good for decision-making in response to repetitive stimuli, like when driving a car, but for decision-making in response to receipt of voluminous proposals every 5 years, that system of thought is not so useful. Establishing tailored standards for adjectival ratings before receipt of proposals is a good way to chart a course through proposals instead, but it is involved, and, without the informed CO’s insistence, doesn't happen. We owe it to our trade to insist the evaluators engage more than their intuition, and invest deep thought into the setting of standards for ratings, before they attempt to navigate through “The Proposal Ocean”. *See Kahneman, Daniel, Thinking, Fast and Slow, 2011

Careful not to miss the below from H2H. Didn’t see from your post that you acknowledged it: Maybe you’re dealing with a special or unusual situation since you quoted (a)(3)(iii) of the cost principle, which begins, “In special or unusual situations…”. In that case, don’t miss this from H2H:

If this was for travel "in the contiguous U.S.", refer to the Federal Travel Regulations (FTR), not the JTR, as stated in FAR 31.205-46(a)(2)(i). Sometimes even COs gloss over this and assume it varies by agency, so of course be sure to read your contract/solicitation and see if it required JTR. Either way, unless you are trying to justify a higher cost than the maximums, all you need to know from the FTR/JTR is how it defines lodging, meals, and incidental expenses (M&IE) so you can properly account for the costs contributing to the maximums for each. Those definitions are found under "Per diem allowance" in the link to the FTR's glossary I provide above. Of particular note, is that "lodging" does not include lodging tax. The FTR, at Appendix A to Chapter 301, provides a link to a webpage where you can query maximum lodging, M&IE by location. (Deleted text)

Was this for travel in Alaska, Hawaii, and outlying areas of the United States?

I think we can safely say that is correct - I was out on a limb. Is the statutory construction of the definition of “commercial service”, in any other way, a legal basis for a commercial service contract not to include DFARS 252.223-7999?

Every requirement on a business has its own potential risk increase. Risk is reflected in price. In this case OSHA standards are probably tucked into overhead without their own contract clause but that’s not the buyer’s concern because it’s a commercial contract. The buyer doesn’t need to care about that, but they buy it as a package deal nonetheless. They buy a portion of the risk of their contractor’s employee getting hurt on the job, or, if the Interim Final Rule stands, getting caught lying about their vaccine status.

@Don MansfieldLet's define "standard commercial term and condition". In this case the Occupational Safety and Health Act of 1970 placed the responsibility for protection of virtually all private sector employees on the Department of Labor, through DOL's creation and enforcement of standards of safety and health in the workplace. The DOL and other agencies had previously only used the Public Contracts Act of 1935 to enforce uranium mining health and safety standards, because that type of work was done entirely by government contract. Now that OSHA was stood up, the Agency's standards had to be met by all employers or else its enforcement would cost business dearly. Source: https://www.dol.gov/general/aboutdol/history/lbjsym98 Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce. Is that your understanding? OSHA allow companies to search their standards here: www.osha.gov/laws-regs I am interested in this but am not educated in this.

We have a new FAC forthcoming in 48 CFR and it will result in a specific definition for "commercial services". The definition includes: Emphasis added. I want to know if the statutory construction here interferes with any forthcoming Proposed Rule the regulatory councils plan to put in the Federal Register adding the Executive Order's resulting clauses to the FAR/DFARS and applying its prescription to "commercial services". Because FAR 52.223-99 / DFARS 252.223-7999 is not a standard term and condition. Lets assume the currently Interim Final Rule by OSHA stands, requiring vaccines if an employer has greater than 100 employees. That makes it a standard commercial T&C, right? Not for truckers. Not for commercial firms with less than 100 employees. There are 4000+ comments submitted to the Interim Rule already on day 5 of its publishing - we can assume the list of excepted firms will only grow with time. How will the Contracting Officer know not to insert FAR 52.223-99 / DFARS 252.223-7999 in the commercial contracts awarded to these OSHA-excepted firms? I worry this will become a nanny state scenario for COs. And I am no Mrs. Doubtfire.

You're keeping them honest. I agree with your assessment of my provided FAQ update from OFPP. In reviewing Executive Order 14042, I find that both: The guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force, i.e., the "Task Force Guidance" or "Guidance" as defined and required in the EO at Section 2 Subsection (a), and, "The definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply" as required in the EO at Section 2 Subsection (b), are limited by the EO where it requires, at Section 2(c): "Prior to the Task Force publishing new Guidance related to COVID-19 for contractor or subcontractor workplace locations, including the Guidance developed pursuant to subsection (b) of this section, the Director shall, as an exercise of the delegation of my authority under the Federal Property and Administrative Services Act, see 3 U.S.C. 301, determine whether such Guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors...The Director shall publish such determination in the Federal Register." Even if this responsibility was somehow delegated to OFPP, the email contents that I quoted (in full) were not in the Federal Register, and were silent on economy and efficiency anyway. Federal Register :: Agencies - Management and Budget Office - last recently published notice was on 10/12/2021 Federal Register :: Agencies - Federal Procurement Policy Office - last recently published notice was on 9/18/2020 In my review of EO 14042 I found no other responsibilities that Lesley A. Field, Acting Administrator of OFPP could have been implementing in updating the Frequently Asked Questions. Could you? I was already questioning how we got here with this FAQ in our clauses, but now I really doubt whether the 1 Nov, 21 Oct, and 30 Sep 2021 FAQ updates are valid. What's New? | Safer Federal Workforce

This just in:

ATTENTION DOD CONTRACTING OFFICERS: YOU MAY NOT USE HISTORICAL PRICING ALONE ANYMORE. Therefore it is time to ask yourself: If you cannot use the price the government paid for a commercial item subcomponent on the previous lot of aircraft engines, what do you need to point to in a DFARS solicitation provision during negotiations this time around to make the contractor help you determine its sole-source commercial item fair and reasonable? The DFARS, it is-a-changin', and you can help change it for the better by commenting on the proposed rule at the link.

Federal Register :: Defense Federal Acquisition Regulation Supplement: Requiring Data Other Than Certified Cost or Pricing Data (DFARS Case 2020-D008)

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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.

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.

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

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.

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)

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.

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.

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)

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.

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.

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