Don Mansfield

17 hours ago, Vern Edwards said:

I'll bet they're still teaching traditional brainstorming in civil service management classes.

I know I taught that as part of the DAU curriculum.

17 hours ago, Vern Edwards said:

Sometimes I wonder how much that I've been told is true, and believe is true, is really true. I worry about that.

I think a good goal is to discover you were wrong about something at least once a day. It's not that hard for me.

I didn't say it was an effective rule.

@Vern EdwardsIsn't there some rule about withholding criticism when brainstorming ideas?

10 minutes ago, joel hoffman said:

Ok, pricing information, consistent with current DAR and DFARS emphasis - which is what the DoD-IG is complaining about. 

Right. The IG still thinks cost data is relevant when contractors use market pricing. It's likely more of a distraction when dealing with the type of CO @here_2_help described, which may be why Transdigm didn't provide it.

On 2/24/2022 at 5:35 AM, KeithB18 said:

Yes sorry. The bullet points relate to things that I consider FAR-compliant. 

Here's another thought for your consideration.

In a FAR part 12 acquisition, the solicitation could invite offerors to propose their own version of FAR 52.212-4 (except for the paragraphs that can't be tailored). The Government could evaluate those terms and conditions for conformance to relational contracting principles. 

Also, you could evaluate the offeror's experience and past performance with relational contracts

12 minutes ago, joel hoffman said:

Don, did I miss where the DoD-IG mentioned that TransDigm provided information other than cost or pricing in response to requests? Shoot, maybe the KO’s didn’t routinely ask for information? 

The Government wanted cost data and Transdigm wouldn't provide it. However, they did provide commercial sales data for the same or similar items (according to their Congressional testimony). 

1 hour ago, joel hoffman said:

Not sure what you mean. “Within context” here, the sole source contractor only furnished data in response to government requests in 2 instances. One can’t “work through anything together” (negotiate or ask questions) with a contractor if it won’t provide any information. That’s one of the points of the IG report or IG audits of the transactions.

Transdigm did provide information--they just didn't provide everything the Government requested.

Deciding not to disclose information is part of a negotiation. Contrary to what the DoD IG and Congress believe, there's nothing wrong or shameful for withholding information that would weaken your position.

Not trying to argue with you @joel hoffman

https://www.pon.harvard.edu/daily/negotiation-skills-daily/when-not-to-show-your-hand/

@KeithB18,

Thanks for sharing. Regarding your thoughts, is the assumption that you would be constrained by the FAR? You mentioned OTAs in the beginning of your post, but your bullet points all seem to assume the award of a procurement contract.

34 minutes ago, KeithB18 said:

And that's one reason I'm so interested in putting into practice relational contracting. 

Do you have ideas on how to do this?

1 hour ago, Fara Fasat said:

Don - maybe I should have said that most here agreed that the court said that this particular service was not commercial, not that most here agreed it was not. Inexact writing afflicts us all.

The larger point is that an established firm accepted the court's poor wording and warned clients that services might not be commercial items.

Agreed.

1 hour ago, Fara Fasat said:

The dust has settled and I think most on this forum agree that 1) this particular service was not commercial

I do not agree with that. The training at issue was of a type offered for sale in the commercial market place. Look at the ads on this page.

29 minutes ago, joel hoffman said:

If you read the indictment it sure looks like “yes”. The MCAS could engage at slow speeds - which it did in the simulation and actually did in both crashes. if a pilot wasn’t trained for that possibility and how to disengage the MCAS or recover, there was probably a high probability of an incident. It is a different animal than  a 737- NG. According to the indictment, it appears that there was  no training for the MCAS. 

I don’t know when the cause of the first crash was known and who knew though…

I admit I haven’t watched the documentary… 

Yes, it would engage because of a sensor malfunction. What was the probability of a sensor malfunction? What was the probability of a crash in the case of a sensor malfunction?

On 2/18/2022 at 5:33 PM, Matthew Fleharty said:

A documentary on the 737 MAX tragedy is now available on Netflix. It’s called “Downfall: The Case Against Boeing”

Watched this over the weekend. Thanks for the recommendation.

The one problem I have with the criticism of Boeing and the FAA is that they are being judged on the result of their decision to not ground the 737 MAX. At the time of the decision, it may have been reasonable to believe that the risk of catastrophe was very low. Perhaps the probability of another crash within the time it would take to fix the problem was the same as a non-737 MAX crash. Yes, a second crash happened, but was it reasonable to believe that a second crash would happen based on the data available at the time?

14 hours ago, Tzarina of Compliance said:

My question was really to do with the specific situation but also for almost all agency contracts, which are "delivering services" outside the US, but the services are performed by contractor personnel who are located in the US and outside the US.

One can come up with some scenarios that make application of FAR part 19 tricky (like Vern has with cloud services), but I don't think applying FAR part 19 is that difficult in your specific situation. The contract will require performance outside the United States and its outlying areas. At the time of the set-aside decision, you don't know who the contractor will be, so you can't conclude that any work will be done in the United States or its outlying areas. All you can have is an expectation. Therefore, FAR part 19 wouldn't apply.

The dilemma you face is that the SBA regulations requiring set-asides explicitly say they apply regardless of place of performance. So, if the small businesses that are pestering you to set aside the contract decide to protest, they have a good chance of winning. Historically, the GAO and COFC have deferred to the SBA regulations when there is a conflict with the FAR.

33 minutes ago, C Culham said:

Careful....not sure the discussion is aligning with other elements of guidance.  https://fedspendingtransparency.github.io/whitepapers/place-of-performance/#:~:text=In contracting reporting instructions for,the service will be performed.

 

"In contracting reporting instructions for many years, the “place of performance” was the location of the principal plant or place of business where the supply items will be manufactured; where finished products will be taken from inventory; or, for services, the principal location where the service will be performed." 

Carl,

At the time of contract reporting, you would know that information. It would either be specified by the Government or you would have a response to FAR 52.214-14 or 52.215-6. Unless the Government is specifying place of manufacture, you wouldn't know before soliciting offers.

1 hour ago, Vern Edwards said:

Is the place of manufacture the place of performance?

Unless the Government is specifying place of manufacture, I don't see how "place of performance" could be interpreted as "place of manufacture" for purposes of applying FAR part 19.

1 minute ago, Vern Edwards said:

What's the place of performance for a supply contract? The place where the product is manufactured or the place of delivery?

How can you know the place of manufacture before you receive offers?

On 2/7/2022 at 8:52 AM, Tzarina of Compliance said:

but the services are purchased from personnel hired in the United States and posted overseas, plus the indirect cost pools are for personnel who are located in the United States.  So, if I have a contract which is to be performed under Foreign Assistance Act in, lets say, Egypt, and I am hiring contractors in the US, who then go and hire personnel in the US and send them to Egypt and also maintain a home office in the US which is paid for by indirect costs.  Let's say all the costs that are actually "incurred" overseas for the performance are about 30% of the contract and the rest are "incurred" in the US.  Is the contract performed overseas?

1. How would you know, prior to receiving proposals, where the personnel would be hired and that the indirect cost pools are for personnel who are located in the United States?

2. How would you know, prior to receiving proposals, that you were going to hire contractors in the US who would then go and hire personnel in the US and send them to Egypt and also maintain a home office in the US which is paid for by indirect costs?

I ask because the decision whether or not to set aside is made before soliciting proposals.

10 hours ago, Neil Roberts said:

FAR 19.000(b) indicates that small business programs apply only in the United States... There is no language therein about "performance."

True, but see the prescription for the provision at FAR 52.219-1, Small Business Program Representation:

Quote

Insert the provision at 52.219-1, Small Business Program Representations, in solicitations exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas.

@Tzarina of Compliance,

Note that the authority at FAR 6.302-4(a)(2) would likely trump set-aside rules. 

4 hours ago, Tzarina of Compliance said:

The Agency's position is that since all of its contracts are performed overseas, they do not have to (but can) offer set-asides or require small business subcontracting plans.

The dust has not settled on this issue. The FAR Councils' rationale for concluding that set-asides are discretionary overseas is not supported by the facts. See the ABA's comments submitted in response to the proposed rule for FAR Case 2016-002: https://www.regulations.gov/comment/FAR-2016-0002-0025

If I were you, I would go along with the agency's position unless the final rule comes out making set-asides mandatory regardless of place of performance.

One summer when I was in college, I worked at Brookhaven National Laboratory. It is a DOE lab that was run by an M&O contractor (Batelle) at the time. I never figured out exactly what my job responsibilities were, but I was part of a "crew" that spent a lot of time in a warehouse reading the newspaper and playing cards. We were once called on to ride out to the Relativistic Heavy-Ion Collider (RHIC) and remove some trash in the form of a broken down steel structure. When we left, the driver passed the road to the dump instead of turning. I asked where we were going. He said "we need to find out if this stuff is radioactive." I asked "what if it is?" "Well, then we'll have to go to medical" he said. "What will they do?" I asked. "They'll have to scrub off the first layer of skin" he said.

Luckily the stuff wasn't radioactive.

Good times.

1 hour ago, baj said:

By no increased cost to client you mean from what they are billed now by my company vs what I would bill them correct?  Yes totally agree, was going to undercut by 5% as my overhead would be lower.

I mean my subcontractor rate plus prime contractor markup would be no more than the loaded rate the prime currently charges the client for me.

17 hours ago, baj said:

No reason, it could be if they wanted to structure it like that, but really it's the exception for how we do things as these are mostly LOE efforts and hard to define deliverables for FFP.

Are you cueing off how I only mentioned T&M or are you saying going FFP solves a lot of problems?

It seemed like you were headed toward cost-reimbursement contract, which I think would be more trouble than FFP or T&M/LH.

I've been in the same position as you and have set up an LLC, but never pulled the trigger to become a subcontractor. If I ever do, I would prefer a FFP LOE or LH subcontract with bimonthly payments. I would charge whatever rate would result in no increased cost to the client.

Nice! 😃