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Don Mansfield

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Posts posted by Don Mansfield

  1. 8 hours ago, Supes said:

    Long time lurker here that just got his first supervisory job. I'm both excited and a little apprehensive for the new position, it's largely managing a team of 1102s doing small buys for a civilian agency. I've been a CO for a couple of years but haven't had any real supervisory experience. I'm hoping you all could provide any tips or advice for a new supervisor. I'll be happy with anything (advice, thoughts, reading, etc.) that anyone can provide!

    Don't be like Michael Scott or Bill Lumbergh. That should put you in the top 50% of supervisors.

  2. 15 minutes ago, Patrick Mathern said:

    Not sure if this belongs here or on a new thread, but regarding flowing down to subcontractors, are there exceptions to 52.204-24 and 52.204-25 based on either value or commercial item status?  Would it apply to a low-value COTS purchase from an online retail site?

    FAR 52.204-25 is listed in FAR 52.244-6 as a flow down to commercial subcontracts. It doesn't state any applicable dollar threshold.

    FAR 52.204-24 is a solicitation provision.

  3. 13 minutes ago, here_2_help said:

    I agree FAR Part 15 implements statutory limits on fixed-fee amounts (in terms of percentages of estimated costs) for cost-plus-fixed-fee and other types of cost-reimbursement contracts awarded by the Government to prime contractors. Is it your position that the limitations in FAR Part 15 apply to CPFF contracts between a prime contractor and its subcontractors? If so, how would that work? Is there a contract clause that imposes those limitations?

    See FAR 52.244-2(g).

  4. 8 hours ago, joel hoffman said:

    I believe that International Agreements have the effect of law and some would take precedence over  portions of US laws that might conflict, such as Small Business Act. mandate to apply Part 19 set-asides and rule of two in SA or other Middle East countries with similar IA’s.

    The FAR already contains an exception to full and open competition for this reason (FAR 6.302-4).

  5. On 8/29/2020 at 9:28 AM, Neil Roberts said:

    The short answer is "yes" it is possible that the FAR Council may issue regulations inconsistent with a regulation issued by SBA but consistent with a law that caused SBA to issue that regulation. FAR Council regulations should give deference to an unambiguous SBA regulatory interpretation of an unambiguous law passed by Congress. But, the FAR Council is not required to "blindly" mimic every single SBA regulation that is supposed to be an implementation of a law passed by Congress. It may come to a different rational view after notice of proposed regulation and comment period has concluded.

    This is likely to happen when we get a final rule under FAR Case 2016-002, Applicability of Small Business Regulations Outside the United States. The SBA regulations require set-asides when the rule of two is met regardless of place of performance. The proposed rule under FAR Case 2016-002 would make application of FAR part 19 outside the United States optional. FAR 19.000(b) currently contains a blanket exception for acquisitions outside the United States.

  6. 2 hours ago, Freyr said:

    Devil's advocate kind of question here for my own edification: Where does it say that you follow the FAR above all else? FAR 1.602-1(b) states, "No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met." So what about a scenario where the Small Business Act has been updated and 13 CFR has been updated to reflect that change in law but the FAR has lagged behind that change? Seems like FAR 1.304(b)(2) allows for local policy to be inconsistent with the FAR when required by law (though I could just be interpreting it in the way I want to). 

    It would be unlawful for a contracting officer to deviate from the FAR without authorization. If a local policy were inconsistent with the FAR, it would be a deviation.

    I wrote an article for the September 2015 issue of the Nash & Cibinic Report on the conflict between the FAR and SBA regulations regarding the "overseas exception" at FAR 19.000(b). Here's a section on conflicts between the FAR and SBA regulations:

    Quote

     

    Inconsistencies Between the FAR and the SBA Regulations: What’s a CO to do?

    In responding to a public comment alleging a conflict between the FAR and the SBA regulations under FAR Case 2006-032, Small Business Size Rerepresentation, the FAR councils stated their position with respect to such conflicts—

    The stated purpose of the interim rule is to improve the accuracy of small business size status reporting, at the prime contract level, over the life of certain contracts. Contracting officers under the Executive Branch are required to follow the FAR. In cases where there are inconsistencies between Title 13 (SBA regulations) and Title 48 (FAR) of the Code of Federal Regulations, contracting officers follow the FAR.  [Emphasis added.]

    74 Fed. Reg. 11821 (March 19, 2009).

    This is a questionable position given that both the Court of Federal Claims and the GAO have viewed the SBA regulations as controlling when they conflict with the FAR.  In C & G Excavating, Inc. v. U.S., 32 Fed. Cl. 231, the Court dealt with a FAR rule that limited the scope of SBA review to those areas of responsibility identified as lacking by the CO when considering an application for a COC.  The SBA regulations contained no such limitation.  In resolving the conflict, the Court stated:

    With regard to the direct conflict between 13 C.F.R § 125.5(e) and FAR § 19.602–2(a)(2), the court finds that the restrictive language in the FAR concerning the scope of SBA's site investigation cannot be interpreted to limit the scope of SBA's general review authority. The clear intendment of 13 C.F.R. § 125.5(e) is that the SBA may perform a site investigation examining all elements of responsibility. This interpretation is consistent with the [Small Business Act] and shall be given deference.

          In Adams Industrial Services, Inc. 98-2 CPD ¶ 56, the GAO sustained a protest where the agency, relying on FAR 19.302(j) (48 C.F.R. § 19.302(j) (1998)), argued that size protests received after award had no effect on the award—they only have prospective applicability.  The GAO stated:

    While FAR Sec. 19.302(j) treats size status protests received after award of a contract as having no applicability to that contract, SBA's regulations, which we view as controlling in this area, provide that "[a] timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest.”

    See also Diagnostic Imaging Technical Education Center, Inc., 94-2 CPD ¶ 148 (Timely filed postaward size protest applied to instant award despite FAR stating that decisions on such protests have only prospective applicability).

    Thus, if a conflict exists between the FAR and the SBA regulations, it seems that a CO would be in the difficult position of having to choose between complying with the law as interpreted by the COFC and GAO or deviating from the FAR. See FAR Subpart 1.4, “Deviations from the FAR.”

     

    I should have written that last sentence to say that the CO would have to deviate from the FAR to follow the law.

  7. 1 hour ago, General.Zhukov said:

    For example of something that would not fly under FAR 15 ( I think) -  Say we've done the technical evaluation considering KP.  Then GVT receives notice of change to KP.   Could the GVT then determine the two KP are equivalent and let the evaluation stand as is?  Perhaps allow for a revision to the proposal to update KP, without notifying or undertaking further negotiations with any other offerors?

    I think something like that should be accounted for in the solicitation. If it goes to the GAO, they will probably fall back on their FAR part 15 case law to fill in the blanks.

  8. 1 hour ago, gboyle said:

    It is a third-party to the contract alleging that money was received

    I would respond to this with: "Prove it."

    1 hour ago, gboyle said:

    "How do I know the USG didn't already pay you under a different contract?"

    I would respond to this with an explanation of how your company ensures that payments received are credited to the right contracts, how this system is periodically reviewed, and how there was no finding of crediting Contract 2 with a Contract 1 payment (assuming that's true).

  9. 5 hours ago, aordway said:

    If we assume they are not a nontraditional defense contractor (for argument's sake), then to sum up where we stand thus far, a non-commercial purchase in which a fair and reasonable determination can be made without the need for cost or pricing data (because cost or pricing data by definition is information that includes or supports cost elements, and the data in hand is that which supports the total price proposed), would therefor NOT fall under the 15.404-1(a)(3) requirement to do cost analysis when certified cost or pricing data is required, therefore a cost analysis would not be required to be performed because we have no cost or pricing data as it was not necessary for this procurement's fair and reasonable determination.

    No, you keep getting confused by considering the information you have on hand. That's irrelevant. Forget about that. 

    If certified cost or pricing data are required by FAR 15.403-4(a)(1) or (2), then cost analysis is required. If you think that you don't need certified cost or pricing data (even though it's required by the regs) because you can determine a fair and reasonable price without it, then request a waiver from the HCA.

  10. @aordway,

    Does the contractor meet the definition of "nontraditional defense contractor" at DFARS 202.101:

    Quote

    “Nontraditional defense contractor” means an entity that is not currently performing and has not performed any contract or subcontract for DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section, for at least the 1-year period preceding the solicitation of sources by DoD for the procurement (10 U.S.C. 2302(9)).

    If yes, then DFARS 212.102(a)(iii) permits you to treat the acquisition as commercial. That would be an exception to certified cost or pricing data.

  11. 1 hour ago, Tim B. said:

    Thanks Don - similarly, "It's allowable unless it's expressly prohibited." is a new one for me as well!  I see you point then, that the fill rate is a term and must be met.

    My comment is based on FAR 1.102(d):

    Quote

    The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.

     

  12. 7 hours ago, Tim B. said:

    Is it common practice to impose "fill rate" requirements on a performance based FFP labor contract?  Is that even allowable under the FAR?

    That's a new one for me. It's allowable unless it's expressly prohibited. I know of no express prohibition.

    7 hours ago, Tim B. said:

    If the contractor adequately performs IAW the the terms of the contract, can they still be penalized for not filling FFP-based positions within a certain time-frame?

    That would be impossible in your scenario. A 98% fill rate is a term of the contract. If you're not meeting that, then you're not adequately performing IAW the terms of the contract.

  13. 1 hour ago, aordway said:

    Now, it appears you are saying that even if I have a negotiated procurement above $2M (which meets the only two requirements for being required to have certified cost or pricing data), if i don't actually have any cost or pricing data or cost elements to evaluate, then i did not "require" cost or pricing data in accordance with what 15.404-1(a)(3) says, and therefore I need not conduct cost analysis. Am I understanding your thinking correctly?

    No. Whether or not certified cost or pricing data are required doesn't depend on what you have or what the offeror/contractor submitted. When certified cost or pricing data are required by FAR 15.403-4(a)(1) or (2), then cost analysis is required.

  14. 27 minutes ago, aordway said:

    Are we all in agreement that "certified cost or pricing data" could be comprised entirely of information that aids only a price analysis and not a cost analysis?

    I don't agree with that. By definition, "cost or pricing data" are:

    Quote

    […] all the facts that can be reasonably expected to contribute to the soundness of estimates of future costs and to the validity of determinations of costs already incurred.

     

    41 minutes ago, aordway said:

    Are we in agreement that when the FAR says "when certified cost or pricing data is required", it is talking about the dollar threshold, and not "when certified cost or pricing data is necessary to come to a fair and reasonable price"?

    I don't agree with that, either. I think it means when certified cost or pricing data are required over or under the $2M threshold.

  15. I don't think that's what @ji20874 was saying.

    I think you are getting confused by factoring in "what the offeror/contractor submitted" in determining what type of analysis is required. That's irrelevant. Regardless of what the offeror/contractor submitted--

    1. When certified cost or pricing data are required, cost analysis is required and price analysis should also be conducted.

    2. When certified cost or pricing data are not required, price analysis is required and cost analysis may be used when a fair and reasonable price cannot be determined through price analysis alone.

  16. 15 hours ago, Z-Mil said:

    However, note there is a reference within FAR 16.101(a) that states "a wide selection of  contract types is available to the Government and the contractor..." 

    That's referring to the prime contract negotiated between the Government and the contractor. The FAR doesn't apply to contractors. It applies to acquisitions (see FAR 1.104). By definition, acquisitions are made by the Government. Not all auditors understand that. 

  17. 9 minutes ago, aordway said:

    I guess 15.404-1(b) is missing something that says "unless you are over the cost or pricing data threshold, in which case you must expend time and resources to evaluate using cost analysis despite the sufficient pricing data already in hand"?

    That's why there's a provision for a waiver--if obtaining certified cost or pricing data and doing a cost analysis would be a waste of time.

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