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here_2_help

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Everything posted by here_2_help

  1. here_2_help

    How can we speed up the source selection process?

    Perhaps I missed your point, or perhaps I built on it for my own purposes. Who can say?
  2. here_2_help

    How can we speed up the source selection process?

    To this point, please show me in the FAR where the duties of the PCO are distinguished from the duties of the ACO, and where the duties of the ACO are distinguished from the duties of the DACO/CACO. For that matter, where are the duties of the CFAO listed?
  3. here_2_help

    Problem of the Day

    Don, Agreed but the exception at 15.403-1(a) is still there. I can't help it if rule-makers forgot it. In fact, it's such an important exception that it has a place all to itself; it's not lumped in with the other exceptions at 15-403-1(b). It's place of prominence makes me think it may supersede the other language, though of course I have no support for that belief.
  4. here_2_help

    Problem of the Day

    Don, My answer "no" was based on 15.403-1(a), which prohibits obtaining certified cost or pricing data for acquisitions below the SAT. The SAT is defined at 2.101. (The CAAC just issued a Deviation that gave civilian agencies permission to refine the SAT to meet the NDAA definitions, but that's not germane.) Further, see (for example) 52.215-12 -- "Before awarding any subcontract expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403-4 … the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15-2 … unless an exception under FAR 15.403-1 applies.”) You do a lot of hand-waving trying to redefine the SAT but I, for one, am not persuaded. The SAT is defined and that's good enough for me. If the SAT was $1.5 million based on the circumstances (as your problem stated it was), then obtaining certified cost or pricing data is prohibited. Period. You cannot hand-wave away a regulatory exception. If we are going to argue conflict between statute and regulation, then effective 18 June 2018, FAR 15.403-4(a)(1) (“The threshold for obtaining certified cost or pricing data is $750,000.”) is flat-out wrong.
  5. here_2_help

    PBP Milestone - Mulitiple Payments

    Thank you. I hope DPAP is reading this. The intent of PBPs was to DIVORCE contract financing from incurred costs and focus on accomplishment of programmatic technical milestones. PBPs were to be the province of CORs and PMs, not auditors. Evidence in support of these assertions can be found in the original DoD PBP Users Guide. DPAP, aided and abetted by the DAR Council, has perverted Congressional intent (and statutory language).
  6. here_2_help

    PBP Milestone - Mulitiple Payments

    The NDAA did not create new law, it simply clarified the existing law that the DAR Council had ignored when promulgating its illegal rule. *Shrug* We can do this forever. I'm not a lawyer and it would take a couple of them, plus a trier of fact, to determine whether or not, in this particular scenario, the contractor should be paid for accomplishment of its contractually agreed-upon PBP events. How about we let our comments here stand for contractor and contracting officer to consider as they try to resolve without resorting to litigation?
  7. here_2_help

    PBP Milestone - Mulitiple Payments

    Is that an official finding from the IG? Or is that somebody's opinion? The DFARS clause is illegal and cannot be enforced, as it conflicts with Section 831 of the 2017 NDAA.
  8. here_2_help

    PBP Milestone - Mulitiple Payments

    The purpose of performance-based payments is to tie contract financing payments to measurable technical performance. Period. There should be zero tie to incurred costs, at least with respect to payment request approval. (You can always have DCAA review costs after the fact.) If you are going to insist that contract financing payments must have a relation to incurred costs, then please use cost-based progress payments. Then you can reimburse the contractor for spending money instead of making technical progress. (Hello, any A-12 folks in the room?) In this case, for some reason, the government contracting officer accepted event values that were not commensurate with actual value. Okay, that was wrong, but the damage is done and the values are in the contract. Either you continue to pay the contractor for accomplishment of contractually agreed-upon milestones or you suspend PBPs and try to reform the contract. The other option, in my view, is to get ready for a contractor claim that you breached the contract by failing to make payments when agreed-upon events were completed.
  9. Steward, this question has been debated since 1994. A search reveals a 2011 WIFCON thread on this topic. There are articles on this topic. There are presentations on this topic. There are lots of opinions from which to choose. Short answer: There is no "official" and authoritative answer to this question from the CAS Board. Unofficial opinions, be they from DCAA or from CAS experts or from attorneys or from industry, vary. My understanding is that the Section 809 panel is discussing this question pretty much right now. We will have to wait to see what answer they recommend, and whether Congress and/or DoD agree with the recommendation. In the meantime, your opinion is probably as valid as anybody else's.
  10. here_2_help

    Has strategic sourcing gone too far?

    (See DoD OIG Report No. D-2010-004, October 29, 2009)
  11. You are not wrong. Primes have a notorious tendency to pay their subKs slower than the government is paying them. As for your comment about the primes' purchasing systems, that's also true, though most subKs learn to work through the issues.
  12. It really doesn't matter to you, the subK, whether you get the work through the large, long running contract with your prime or directly from the government customer. It's the same work and it should cost you exactly the same to perform, regardless. If that's the case, why do you care? Why are you trying to help out the government customer and the CO? What the customer may gain is a cheaper price, since your prime will no longer be burdening your costs with its costs and/or fee. And your prime loses a bit of revenue and perhaps some absorption of its indirect costs. Those parties are the winners and losers here, so why are you involved in trying to make this happen? Further, as others have noted, you may be jeopardizing your long-running relationship with your prime. What are you gaining in return for that risk?
  13. here_2_help

    Real Contracting Pros

    Yes, I agree with you. The negotiator is just following orders. The individual making key strategic decisions is far from the negotiating table. That says nothing about the person at the table.
  14. here_2_help

    How can we speed up the source selection process?

    Restrict CO ability to obtain field pricing assistance by requiring the CO to justify why they cannot determine price reasonableness without such assistance. Ensure field pricing assistance, when requested, is limited only to those aspects the CO has justified. Require field pricing assistance input to be received within 30 days from date of request and hold functional support areas accountable for meeting that deadline.
  15. here_2_help

    Real Contracting Pros

    Counterpoint: http://www.defenseone.com/business/2018/03/lockheed-pentagon-negotiators-are-becoming-more-unpredictable/146420/?oref=gbb-newsletter
  16. Interesting to me how other folks focus on the word "responsible" in the OP. The question that was asked was answered, but did the answers help anybody? To me, it's not a matter of "responsibility" or a duty imposed by a contract clause; instead, I see it as risk mitigation. The prime should mitigate the risk that the government will, eventually, find the subcontract to be defectively priced because it will be the prime that will be held responsible for the noncompliance. There is no guarantee that the subcontractor will have the financial resources available to indemnify the prime for legal fees, penalties, and interest paid to the government. Thus, the prime should take action to address the situation and, if necessary, remediate it. Perhaps I'm in the minority here, but that's the way I see it.
  17. Let's ask the question this way: If the government believes that the subcontractor defectively priced its proposal, who will the government go after with respect to the required price reduction and any repayments? Does that help answer your question?
  18. here_2_help

    FAR 46.705 Warranties

    Given the (deleted) language of the draft RFP, quoted above, I was kind of interested in the timing of things. What happens if there is an adverse regulatory action that takes place after inspection and acceptance of the work? What happens if there is an adverse regulatory action years after the Period of Performance has expired? Obviously the contract is over and done with, so who cares? Not the contractor. The contractor is not going to be seeking an equitable adjustment based on what a regulator says/does years later. On the other hand, the government might file a claim against the contractor, I suppose, if it's within the 6-year CDA Statute of Limitations. If not, I'm not seeing much government recourse either, absent allegations of fraud. Not sure if MBrown is with EPA or another civilian agency, but environmental remediation contracts tend to be cost-type for a reason: it's hard to define "remediated" ahead of time, until all the regulators have spoken.
  19. here_2_help

    Bid Protests: GAO or the Courts

    Before I make a recommendation for change, I would want to understand sustention rates. What percentage of GAO decisions that are subsequently refiled at COFC are sustained/confirmed? How many are non-sustained? What percentage of protests are non-sustained or remanded for corrective action at the Appellate level? If we see that GAO or COFC gets it wrong, and it takes a Court of Appeals decision to get it "right," then I would like protesters to have as many bites at the apple as possible. However, if an appellate reversal/remand is one-in-a-thousand, then that's a remedy that protesters probably do not need.
  20. here_2_help

    Bid Protests: GAO or the Courts

    Found this and it looks to be relevant to the discussion. https://www.pillsburylaw.com/images/content/2/3/v2/2393/7CB22233F651CC7414DA9156569A4F4A.pdf
  21. here_2_help

    Part 15 evaluation section L items

    Is it not traditional to have a one-page matrix showing how the proposal answers each Section L instruction? In other words, if you answer in the proposal, your matrix should show the evaluators where the answers are.
  22. here_2_help

    Signing Contractor Employees' Timecards

    (Emphasis added.) I'm confused. How does the Government FTE "concur" on a timesheet? What is the mechanism? Is it a signature? If so, what does the signature signify, from a legal/contractual point of view? Further, are your personnel concurring on contractor timesheets or on contractor invoices? Or both?
  23. here_2_help

    SUPPLIER VETTING

    I believe you are asking the wrong group of people for these things. I suggest you hire a good consultant to help you with these things.
  24. As with any large population, attributes are distributed in a more-or-less Bell curve. Sometimes you get the CO on the good tail of the distribution; other times you get the CO on the other tail. One thing I've noticed is that the population of contract specialists, cost monitors and the like seems to be sprinkled with contractors. These contractors are nice folks who show up late to the party, don't understand the acquisition strategy, and still try to do their jobs the best they can. Results tend to be suboptimal, from my perspective.
  25. Section 803(g)(3) of the 2018 NDAA states: (Emphasis added.) What does that mean in layperson's terms? Does that mean when the bill was signed into law, or when somebody issues implementing regulations, or what?
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