Don Mansfield

9 hours ago, Z-Mil said:

Thoughts on whether the reporting requirements under 52.230-6 apply to 2nd tier subcontractors?   

The opening statement appears to limit the application of the clause to the contractor:  For the purpose of administering the Cost Accounting Standards (CAS) requirements under this contract, the Contractor shall take the steps outlined in paragraphs (b) through (i) and (k) through (n) of this clause:

Additionally, the DAU Clause and Provision Martix does not show that this is a flowable clause.   DCMA is stating that "all subs need to include the substance of the clause in their lower tier subcontracts even though it is not a flowable clause".  Would love to hear your thoughts on this position.

 

I don't know why that would not be coded as a flow-down clause in the matrix--it obviously is.

6 hours ago, Z-Mil said:

There is no definition for 'contractor' in 2.101 nor in 52.230.

So what? In a contract between the prime and the sub, wouldn't the sub be the contractor?

In any case, the "substance" of the clause needs to flowed down--it doesn't need to be verbatim.

@joel hoffman,

What do you expect a contracting officer to do? It seems like Fara Fasat is trying hard to do more than just rely on a self-certification, but is getting nowhere. 

I'm not saying it couldn't be used--I'm just questioning how useful it is in assessing an offeror's ability to perform a contract. I'm all for considering an offeror's "reasonable and cooperative behavior" in performing Government contracts. However, I don't think it's reasonable to impute an offeror's behavior in competing for contracts to their expected behavior when performing a contract. It seems needlessly punitive.

BTW, yes I know that Congress made the Pilot Program permanent. Yes, I know that some civilian agencies issued class deviations. Yes, I know there is a FAR case pending. 

None of those things detract from my point.

Only three votes? Oh, well.

The reason I posted was that I thought the clause prescription was remarkably incomplete. The scope of the subpart at FAR 3.900 reads:

Quote

 

This subpart implements various statutory whistleblower programs. This subpart does not implement 10 U.S.C. 4701, which is applicable only to DoD, NASA, and the Coast Guard.

(a) 41 U.S.C. 4705 (in effect before July 1, 2013 and on or after January 2, 2017). Sections 3.901 through 3.906 of this subpart implement 41 U.S.C. 4705, applicable to civilian agencies other than NASA and the Coast Guard, except as provided in paragraph (c) of this section. These sections are not in effect for the duration of the pilot program described in paragraph (b) of this section.

(b) 41 U.S.C. 4712 (in effect on July 1, 2013 through January 1, 2017). Section 3.908 of this subpart implements the pilot program, applicable to civilian agencies other than NASA and the Coast Guard, except as provided in paragraph (c) of this section.

 

The clause prescription merely says to insert the clause in solicitations and contracts over the SAT. Nothing about the clause applying to civilian agencies other than NASA or the Coast Guard. Nothing about the clause not applying after January 1, 2017. So much for the guidance for writing clause prescriptions in the FAR Drafting Guide:

Quote

Include in the prescription all conditions, requirements, and instructions for using the provision or clause and any alternates.

On 9/16/2023 at 7:16 AM, formerfed said:

Some agencies tie this into items like demonstrated cooperation, communications, collaboration, partnering, etc.  It can be assessed through several means including conversations with clients, customers, and other business partners.  

I think that makes perfect sense. FAR 42.1501(a)(4) includes the contractor's record of "reasonable and cooperative behavior and commitment to customer satisfaction" on previously and current contracts as part of past performance information. However, an offeror's record of protesting is not within the scope of such an evaluation.

7 hours ago, Steward said:

Out of curiosity, has any solicitation successfully included evaluation criteria that takes a look at the volume of protests an offeror files?  I ask due to the sheer disruption and often times few bad apples filing protests nearly every single time they lose, has there been any eval criteria that allows an agency to factor that in? 

 

This is more focused on small business procurements, rather than large $1B+ where a lot more is at stake financially, etc.  The $100M or less range

 

Thank you in advance

I don't understand what you can conclude about an offeror's ability to perform a contract based on the volume of protests they have filed. What does one have to do with the other? 

4 hours ago, GovtPeonAnne said:

My contracting officer thinks that it means that it applies to any action funded with appropriated funds or by ARRA 2009.

🤦‍♂️

FAR 3.908-9 states:

Quote

“The contracting officer shall insert the clause at 52.203-17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights, in all solicitations and contracts that exceed the simplified acquisition threshold.”

Assume the following:

• It is September 13, 2023
• You are a contracting officer for a civilian agency other than NASA or the Coast Guard
• You are selecting clauses to be included in a solicitation for a noncommercial contract expected to exceed the simplified acquisition threshold

I think we would need a case first. I'm not sure how one would come up, though. I guess DoL would have to attempt to enforce a penalty for not meeting a goal. Less likely, in my opinion, would be a protest of a solicitation for notifying offerors of the goals.

@Neil Roberts, What do you mean by "authority"? Do you think that a contracting officer wouldn't have the authority to extend a contract when the contractor experienced an excusable delay if the contract didn't contain the Default clause?

5 hours ago, Thurley4397 said:

What are your thoughts and how do you justify this on your authority matrix?

What is an authority matrix?

2 hours ago, ji20874 said:

I asked the OP a question:  By unnecessarily re-styling these notices as RFPs, I wonder if you are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?

Yes, I know. I thought you maybe had a novel interpretation of FAR 16.505(b)(1)(iv) and I wanted to know what it was.

3 hours ago, ji20874 said:

Above $6 million, you similarly provide a "notice" that includes the factors and subfactors "that the agency expects to consider in evaluating proposals."  See FAR 16.505(b)(1)(iv) for more information.

Are you saying we shouldn't call the "notice" an "RFP" to avoid FAR part 15 baggage? Or are you saying the notice need not request proposals above $6 million?

4 hours ago, Signal said:

Customer is a Federal Contractor selling to an agency. 

FAR 32.202-1 doesn't apply to your customer. It applies to agency purchases. See FAR 1.104.

Is the customer a Federal contractor or a Federal agency?

They should have argued that what they delivered late was not a proposal revision--following STG International.

What did the contract say about when the Government could exercise the option?

It's the other way around. You are to assume it is permissible unless you find otherwise. See FAR 1.102-4(e).

3 hours ago, Retreadfed said:

Carl, reread 19.708.  The exception only applies to 8(a) set asides.  The clause goes in other set asides.  To make you feel better, the better language I should have used is the clause goes in set aside contracts with small businesses except 8(a) set asides..

I'm with Carl on this. That interpretation makes no sense. Why would you include a clause that expressly states it does not apply to small businesses when you are only soliciting responses from small businesses?

CLS may be requiring you to include the clause, but that doesn't mean a subcontracting plan will be required. See paragraph (a) of the clause at FAR 52.219-9.

1 hour ago, ghostie said:

it seems as if a claim is a claim where the contractor feels they have a rightful claim to a certain sum of money due to changed contract terms or other issues due from the contract. A protest seems like a non-monetary objection where the contractor feels they were wrongly removed from competition in the contract process?

Let's read the definition more closely now.

1. Who can file a claim? Just the contractor?

2. Does a claim have to be monetary?

3. Can a claim be made by electronic means?

4. What is an assertion in the context of the definition?

5. What is a demand in the context of the definition?

6. What does it mean to seek something as a matter of right?

7. What three things could be sought in a claim?

8. What's the difference between a claim arising under a contract and a claim related to a contract?

We're only on the first sentence of the definition.

First, start with the concepts.

What is a protest? 

What is a claim?

This discussion prompted me to take some online training on records management offered by NARA: https://www.archives.gov/records-mgmt/training/online-lessons

I recommend "Recognizing Records, Non-records, and Personal Files" and the review and practice lesson. The modules are L1.012 and L1.013. This should be basic Federal employee training.

The distinctions that some are making in this thread between source selection decision documents, evaluation reports, individual evaluator notes, etc., are meaningless in the context of Federal Records Management policy. The distinction that matters is between records and nonrecords. There's nothing about an individual evaluator "note" scribbled on a scrap of paper that categorically excludes it from the definition of "record". If it meets the definition of "record" it's a record.

Agree with Carl.