Don Mansfield

Why can't your contract be FFP?

I don't think the FAR or SBA regulations provide definitive criteria for determining place of performance, so I would interpret it the way ji does (i.e., to the advantage of the CO).

7 hours ago, Rachel_CO said:

FAR 16.505(7) requires that orders placed under IDIQ contracts contain "quantity and unit price".

The requirement for a "unit price" doesn't apply to T&M/LH. See FAR 4.1005-2(c)(3).

7 hours ago, Rachel_CO said:

As a CO myself, I am struggling to understand how a TO can be considered a T&M or LH type if the TO instrument does not include any of these basic elements (i.e., labor categories, labor rates, or a total quantity of hours to be delivered during TO performance).

Do you think that "hour" is the unit of delivery under a T&M/LH contract?

@AC123

I don't think what you are describing is "contractor-acquired property" as defined at FAR 45.101. By definition, the Government has title to "contractor-acquired property":

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Contractor-acquired property means property acquired, fabricated, or otherwise provided by the contractor for performing a contract and to which the Government has title.

If the contractor acquires property to perform a contract and retains title, the property is not "contractor-acquired property".

1 hour ago, Guardian said:

 

The point being made is not lost on me.  There are no performance issues associated with the loss of named key personnel to document, at least none that have been brought to my attention.  I am administering and monitoring this contract carefully.  My concerns then become 1) did this particular contractor receive an award over competing contractors based on proposed key personnel that wound up not sticking around for any meaningful length of time, and 2) did we base our trade-off decision on this contractor proposing more impressive KP than their competitors, therefore awarding at a higher dollar amount for something never realized?  If past performance did not suffer, what continues to be the motivation for potentially paying more for particular names and their CVs?  Our contracts require the contractor to replace the KP with someone of equal or better qualifications.  Why am I buying a Patagonia coat when it winds up being switched out before the end of the season with a similar looking coat from Costco that proves to be just as warm, functional and stylish?  Why do I persist?  I am trying to find that sweet spot between doing what, as a business advisor, I believe is optimal and being a good steward of the agency's customer service initiative.  A competent attorney provides his best advice to clients.  However, if those same clients opt to take the stand against the advice of counsel in spite of their own interests, then there is little that person can do.

 

1. Do you think the customer has thought about evaluation factors and concluded that key personnel is a good evaluation factor, or are they just copying and pasting from old source selection plans?

2. If there were some extra red tape to include a "key personnel" evaluation factor, do you think your customer would still want to use it?

2 hours ago, Guardian said:

By this approach, wouldn't we effectively be going down the road toward evaluation of past performance?

No. You would be asking for the same type of information you probably ask for now when evaluating personnel qualifications (i.e., resumes). But your data set for predicting the qualifications of personnel who would work on your contract would likely be more relevant because it would be from actual key personnel (the type who replace proposed key personnel shortly after the contractor begins performance).

2 hours ago, Guardian said:

How might this approach affect an offeror who does not have a record of relevant past performance, including use of key personnel on similar contracts? 

The same way it would affect an offeror who proposed to use a key person who did not have the requisite qualifications in your source selections. 

@Guardian

I think that the problem you are having is due to the information you are requesting. If you want to predict the quality of key personnel that would perform a prospective contract, you would be better off requesting information about key personnel that an offeror has actually assigned to similar contracts.

You are inviting the gamesmanship that you are experiencing.

Agree with Joel.

If the contract requires the contractor to ensure that its employees are either vaccinated or meet an exemption, and the contractor tasks its employees with either showing proof of vaccination or providing documentation to support an exemption, I think the payments to the employees would be covered under FAR 31.205-6 (Compensation for Personal Services). The goal of the contractor would be to meet a contract requirement. 

If the Government believes that contractors should not earn "excess profits" on Government contracts, then it would only be consistent to ensure contractors don't suffer "excess losses" on Government contracts. You can't have it both ways.

Also, requiring a contractor to include cost information does not mean the prospective contractor would be required to change its price. 

On 1/14/2022 at 6:57 AM, contractor2589 said:

Can a blanket purchase order (BPA) be modified to survive the termination of a GSA MAS contract upon which it was awarded? We have a 5-year BPA that extends beyond the expiration of our 20-year GSA MAS contract. I'm hoping to hear that there is a way to mod the BPA to the new GSA MAS contract, which has been awarded with the same rates and escalation. If that's possible, it would not affect labor rates on the BPA.

Why must there be a BPA in place? Can't agencies just order off of your new GSA MAS? 

If the successful awardee requests a debriefing, ask them what information they would like. 

14 minutes ago, C Culham said:

Interesting.   Is the EO and its subsequent clause public and general and not directed a particular contractors?

I wasn't referring to the specific EO. I meant if the Federal Government were to mandate vaccinations for anyone to gain access to a Federal facility.

4 hours ago, ji20874 said:

I prefer supplemental agreement.

However, I can see an argument for a change order under the Changes clause as being within the general scope of the contract.  In order to enter the Government facility or otherwise interact with Government employees, the contractor's employees have to meet the Government's new facility security and safety access standards.

I see a new safety requirement for anyone entering a Government facility as an act of the Government in its sovereign capacity. I'm not sure this would necessarily require a contract modification.

16 hours ago, Vern Edwards said:

@ji20874Have you read the Mortenson decision mentioned and cited above? The contract in that case was fixed-price, and "notions" of direct versus indirect costs were relevant in that case. I think you're wrong to say that the distinction between direct and indirect costs is wholly irrelevant to the Government.

The court quoted a well-known passage from Cibinic and Nash:

The court ruled that the fixed cost component of the field office indirect costs could not be included in the price adjustment.

I think your statement, which I quoted above, is wrong. I think that in the settlement of adjustments to FFP contracts the distinction between direct and indirect costs can be highly relevant.

 If you think I am wrong, or that I misunderstood you, or that I took you out of context, please straighten me out.

Why did you have to bring facts into this?

Here's the order: https://www.scag.gov/media/1pfaybfp/federal-contractor-order.pdf

3 hours ago, GABE said:

Provisions apply to solicitations. Clauses apply to contracts. So clauses shall never be included within solicitations?

Look up the definitions of provision and clause in the FAR and let us know what you find.

On 11/19/2021 at 7:53 AM, Dwayne Cross said:

Is the 8A program the only socio economic category that can receive a Direct Sole Source Award?

Well, sole source awards are authorized under HUBZone, SDVOSB, and WOSB programs. However, they're not referred to as "direct". Unlike other socioeconomic programs, the contracting agency awards contracts to the SBA under the 8(a) Program. Some agencies have entered into partnership agreements with the SBA that permits them to make "direct" awards to 8(a) contractors, without having to include the SBA as a signatory. Since the SBA is not a party to sole source contracts under other socioeconomic programs, there's no need to make a distinction as "direct" or not.

I have no words.

https://cafc.uscourts.gov/opinions-orders/21-1257.OPINION.11-17-2021_1866318.pdf

36 minutes ago, GABE said:

Isn't a Pandemic an excusable delay?

That's for the contractor to argue when they get the show cause. 

1 hour ago, ji20874 said:

If boards or courts make the clause improper or unenforceable, they will likely say the President or the Executive Branch or the agency overstepped.  They likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

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I'm just sharing a professional opinion.

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I do not need to do research to justify holding or sharing such an opinion.

Dunning-Kruger Effect

2 hours ago, Vern Edwards said:

Ethics in contracting is an important matter, but it is one in which most acquisition personnel receive only superficial education and training, and that training is mainly practical, not philosophical. Few of us have studied ethics, and most of us have not read any formal treatises on ethics.

This reminds me of when I used to teach contracting newbies at DAU. As they learned more about the FAR/DFARS, sometimes the more thoughtful students would come to the realization that their organizations didn't always follow the rules. They wouldn't know what to do with that information, because they had assumed that people knew what they were doing where they worked. We ended up adding the following to the course material:

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24.  What do I do if I am a contract specialist and my contracting officer is not complying with the regulations?

            It’s quite common for contract specialists to discover, by training or independent research, that acquisitions they are working on may not be fully compliant with the regulations.  Given the sheer volume of the applicable regulations and how often they are changed, it is understandable that contracting officers fall out of compliance due to a lack of knowledge.  If this is the case, it is your duty as a contract specialist to bring this to the attention of your contracting officer.  This will give the contracting officer the opportunity to correct the noncompliance. 

            A more difficult situation occurs when the contracting officer takes no action to correct the noncompliance or you find that the noncompliance is by design.  This presents an ethical dilemma.  Is it ethical to process acquisitions that you know are noncompliant with the regulations as long as you are not signing anything?  While some may find comfort in believing the answer to this question is “yes”, being a party to the evasion of legal regulations is contrary to the Standards of Conduct for the Executive Branch.[1]  In fact, the Standards of Conduct state that “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

            You primarily have two options for reporting intentional violations of the regulations.  The first is reporting the noncompliance up the contracting officer’s chain of command.  If the contracting officer is abusing the authority given to him/her, then those who granted that authority should be informed so that the appropriate remedial action can be taken.  The second option is to report the noncompliance to the DoD Office of the Inspector General (DoD IG).  The DoD IG has a “Defense Hotline” to report fraud, waste, abuse, or mismanagement regarding programs and personnel under the purview of the DoD.  No matter which option you choose to report a violation, you will be protected under Whistleblower statutes and you have the option to remain anonymous.  If you choose to remain anonymous, then you should provide enough information in your complaint so that an investigation, if necessary, can be effectively conducted.

 

[1] See http://www.oge.gov/Laws-and-Regulations/Employee-Standards-of-Conduct/Employee-Standards-of-Conduct/

 

Admittedly, this hardly scratches the surface of what training acquisition professionals need. Most training is of the "don't take bribes" variety.

3 hours ago, ji20874 said:

But once it has accepted the modification, well, does it matter?

It should matter to the Government, because a court or board may not enforce the clause. See, for example, La Gloria Oil & Gas Co. v. U.S., 56 Fed. Cl. 211 (2003). 

On 11/13/2021 at 9:09 AM, Vern Edwards said:

The DOD class deviation, which is based on the executive order, neither of which states an exception for commercial items.

Do you think that the DoD class deviation and the executive order have the force and effect of law?

1 hour ago, WifWaf said:

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?

What's the legal basis for including the clause?