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Don Mansfield

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Posts posted by Don Mansfield

  1. 2 hours ago, Retreadfed said:

    That means that there may be FAR/DFARS clauses in the subcontract that are not included in the prime contract.  For example, if the prime contract is a cost reimbursement contract but the subcontract is a firm fixed price contract, there may be several clauses in the subcontract, such as a payments clause, that are not in the prime contract.

    Why would these be FAR/DFARS clauses? Why wouldn't the prime use its own payment clause?

  2. 22 hours ago, Neil Roberts said:

    . "Business" clauses are not prohibited by a prime contract for inclusion in purchase contracts but are not included in the prime contract. Think of it as the business boilerplate often found in non-government contracts.  

    I think I wasn't clear. I was referring to the list of FAR/DFARS in the subcontract--not all clauses. 

  3. It's a common tactic by primes, and I'm sure many subcontractors put up with it. It can take a lot of time and effort to determine which particular clauses should be flowed down and mistakes can be made, so one can understand why primes do this. 

    You could go back and forth with the prime on each clause that you don't think applies and some subcontractors do that. I think a more elegant solution is to get the prime to agree that, notwithstanding the list of clauses in the subcontract, the only clauses that apply are those that are 1) included in the prime contract and 2) require inclusion in your subcontract.

  4. A lot has already been written here about what they like and don't like about the DEA's procedure and the GAO's decision that I won't repeat or challenge. However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure. They disclosed their intent to rotate purchases among BPA holders in the solicitation and nobody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely. So it seems DEA was home free to rotate purchases among the BPA holders.

  5. 2 hours ago, Retreadfed said:

    This seems to contradict the notion that the government does not buy hours under T&M/LH contracts.

    I don't think Formation is right on this point. I would not consider T&M/LH contracts to be "level of effort" contracts. I agree with @ji20874's description.

    But this is beside the point.

  6. 1 hour ago, Me_BOX_Me said:

    No. I was referring to this part: "At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment." 

    Just saying that what Vern has proposed hasn't been attempted, certainly not at scale. So socializing what that comparative assessment might look like would be helpful to people who are interested in improving outcomes or reform similar to what Vern suggests. 

    None of what I quoted talked about how to write better evaluations, it was about what we do with those documents post-award, if anything. 

    I think there is a comparison between what was promised in the contract and what was delivered. That's the purpose of a CPAR. 

    I think what Vern is referring to is the kind of BS you find in technical proposals (e.g., technical approach) that tends to weigh heavily, probably too heavily, in source selection decisions. If we were to compare that information to actual results, I think we would find two things. First, there is not much correlation between a proposed approach and the actual one used. Second, it doesn't matter that a contractor didn't use their proposed approach during contract performance. Contract performance depends more on the contractor's ability to adapt to changing circumstances than their adherence to a preconceived approach based on speculation of what the future will be. 

    Hopefully, we would draw the conclusion that evaluating technical approaches is a waste of time. 

  7. 4 hours ago, Seeking2Award said:

    Generally, there must be "consideration" whenever a contract is modified. 

    I think that's an overstatement. Some modifications require consideration, some don't. A lot of modifications that adjust contract terms pursuant to a clause don't require any new consideration.

  8. 8 hours ago, Me_BOX_Me said:

    This seems like the most actionable part of the dialogue. This could easily be a part of an integrated project team as they start market research and acquisition planning. Even better would be collecting this data throughout the contract. That would be true continuous improvement. Vern et al - It would be helpful for wifcon to facilitate sharing knowledge and tools to help professionals establish these initiatives within their agencies. Unfortunately for senior managers to sign on, something would either have to be very well developed already. My group likely has the capacity to take something like this on in the coming years. We have the centralized data, expertise, and willingness to try.

    What exactly are you requesting? Guidance on writing better evaluations?

  9. 21 hours ago, Fara Fasat said:

    But in a case where fraud or corruption leads to the selection of an inferior product, then yes, eliminating protests leaves the government stuck with that inferior product.

    Why couldn't the Government suspend or T for C and re-evaluate?

  10. 15 hours ago, Vern Edwards said:

    No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief.

    That's it.

    I like it.

  11. 5 hours ago, Neil Roberts said:

    @Retreadfed, could you elaborate about the point in your post reference to FAR 31.205-6(b), which concerns personal services? The FAR definition of personal services is: "Personal services contract means a contract that, by its express terms or as administered, makes the contractor personnel appear to be, in effect, Government employees (see 37.104)."

    FAR 31.205-6 refers to the cost to the contractor for compensating its employees. FAR 37.104 refers to personal service contracts awarded by the Government. Two different things.

  12. On 2/21/2024 at 2:36 PM, FLContracts said:

    Fortunately, the prime contractor has an approved purchasing and accounting system, which provides some assurance of their processes. The concerning subs are all proposed for time and materials contracts.

    To conduct my cost analysis, I compiled hundreds of data points from invoiced rates across over 30 comparable contracts. This provided me with a solid baseline to evaluate the proposed subcontractor rates.

    Despite my in-depth analysis indicating excessive rates, I'm struggling to firmly determine fair and reasonable pricing with the limited data the subs have provided. The prime contractor provided cost and price analysis on the subcontractors via a salary.com. All rates are in the above 99%  percentile and the KTR attempted negotiations before proposal submissions with no luck. 

     

    Is the overall estimated cost fair and reasonable?

  13. 3 minutes ago, WifWaf said:

    Am I correctly inferring you would not check any of the 107 possible clauses "to implement provisions of law or Executive orders" that the CO can incorporate into a commercial contract where the clause says "[Contracting Officer check as appropriate]" in paragraphs (b) and (c) of FAR 52.212-5?  After all - and drastic as it seems - that is essentially what the 809 Panel recommended the FAR Council do, in Volume 1 Appendix F, Tables, F-5 through F-8.

    If the rule were to check them off if I determined that the clause was consistent with standard commercial practice, then I don't see how any would apply.

    Imagine the howling by SBA if a CO decided not to check off the small business subcontracting plan clause, or DoL if a CO  decided not to check off Service Contract Labor Standards clause, or domestic sources if a CO didn't check off Buy American.

  14. I see. Instead of the FAR and DAR Council making the call, the contracting officer would make the call on a case-by-case basis. I'm having a hard time imagining how any clause required to implement a statute or executive order would be consistent with standard commercial practice.

    Isn't FAR case 2018-013 addressing this issue? You know, the one whose status says "awaiting CAAC concurrence" of a proposed rule as of 2/19/2020?

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