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Posts posted by here_2_help

  1. My opinion is that you made a poor choice in selecting the subcontract type. My opinion is that you used a subcontractor to bypass your prime contract LOE restrictions, and the COR caught you doing so. 

    Too late to change the subcontract now, I guess.

    In future, similar, situations you may want to consider a Fixed Unit Rate subcontract where each day has an associated FFP amount and each day counts as 8 hours against your LOE restrictions.

  2. 13 hours ago, Whynot said:

    I am a sales agent that gets paid commissions from the Prime when I bring in orders for products and services off of one their IDIQ schedule contracts – such as a GSA Schedule. Do flow downs from these schedule contracts apply to me? In a small business subcontracting plan would my commissions be included when reporting subcontracting dollars? Is a sales agent a personal services contract?

    Sounds to me like the prime wants your commissions to be a direct cost of its contract; hence it names you subcontractor. I agree with the others that that designation does not necessarily make sense.

  3. Who is the customer for Contract1? How does the contractor get paid? Does it get paid for orders on its ID/IQ contract that were placed by Contractor2?

    I'm guessing that once the contractor has fulfilled its maximum under Contract1, it's done. It doesn't matter who ordered what. If so, then if the customer has additional demand then it needs to add funding to Contract1. Period.

    Or the customer can go to Contractor2 and order items and pay for them.

    Should be the same result if I've parsed the situation correctly. Either add funding to Contract1 or else use that funding to buy from Contractor2.

  4. 14 hours ago, Vern Edwards said:

    Thanks! I notice that the DFARS clause does not mention a CPSR specifically. Neither does DFARS 252.244-7001. Did I miss it? They refer to "acceptable" systems, but not "approved" systems. Are they the same?

    The contractor Business Systems oversight regime is flawed. It was flawed when the DAR Council implemented it in 2011 and it's still flawed today. One of the flaws is that "acceptable" and "approved" are synonyms, just like "unacceptable" and "disapproved" are synonyms. (Primarily turns on which system is being discussed). Officially, DCMA is responsible for reviewing/assessing three systems (Purchasing, Property Control, EVMS) and DCAA is responsible for auditing/assessing three systems (Accounting, Estimating, MMAS), but of course the cognizant ACO/DACO/CACO makes the official determination. (See DCMA Instruction 131).

    Government reviewers have been evaluating property, purchasing and estimating systems for as long as I've been in this crazy business. I've never experienced--or even heard of--a contractor pushing back, asserting that the government lacked authority to perform those reviews. I believe a contractor would be afraid to make that assertion, fearing what the repercussions would be.

    Easier to staff up (typically on overhead) and support government reviews. And then pass on the additional expense to the buying commands.

    Per DCMA Instruction 131 (at 3.1.2)


    The Defense Contract Audit Agency (DCAA) auditor or the DCMA functional specialist reviews the business system to determine if the system is in compliance with the DFARS criteria for the specific business system. If the business system report reflects deficiencies, the CO is responsible for evaluating the business system report to determine if it contains sufficient information to make a determination of significant deficiency, as defined in DFARS 252.242-7005.


  5. 14 hours ago, Vern Edwards said:

    The bright boys and girls in Silicon Valley who don't want to work for DOD feel that way because they don't want to work in what they think would be a nimrod military bureaucracy. They don't want to work with people they think will be bozos. They don't want to have to submit reams of paper when they want to try something and then have to wait weeks or months for a decision. They don't want their work hung up by absurd procedures and government shutdowns. They don't want to be told, over and over, what they can't do

    At last we agree.

  6. Vern, we disagree regarding the importance of employee morale. We disagree that morale is unimportant, or that it can be affected by little things, such as providing disposable plates and plastic silverware. We disagree that the Department Defense is suffering from a loss of cutting edge technology, as so many bright young folks opt for high-tech jobs in places such as Silicon Valley instead of joining the Federal civil service or joining a government contractor in a research & development capacity.

    We disagree that this little thing, this ankle-biter of a decision, doesn't matter.

    Because I believe that it does matter. It's a symptom of something bigger. If the Department of Defense ever wants to regain its high-tech leadership, if it ever wants to start attracting the next Feynman, then it needs to address these sorts of things. Young people with STEM degrees have options, and right now working for the DoD is close to the bottom of their list. Don't take my word for it. Any Google search will turn up lots of citations discussing industry's anxiety about where the next generation of STEM employees are coming from.

  7. 1 hour ago, Vern Edwards said:

    Well, I would think you were pretty silly if your morale were seriously hurt because your employer wouldn't buy you paper plates and plastic utensils.

    To the extent that the people working in Silicon Valley are the best and the brightest, they're there because (1) they like the work and (2) they can afford to buy a house in San Francisco.

    BTW, David Halberstam meant "the best and the brightest" to be ironic.

    Vern, we disagree.

  8. A couple of thoughts. Take 'em for what they may be worth.

    1. The contractor has already (or will be very very soon) prepared an official corrective action plan with milestone dates. It's what happens when a contractor business system gets disapproved. The cash flow impacts imposed by the government on large prime contracts awards tends to ensure that the contractor implements the CAP with a sense of urgency.

    2. The timing of when the CPSR team returns for a re-review and re-assessment of the system approval is not within the control of the subcontractor. Any milestone date they would provide would be a guess, at best.

    3. You are concerned about a focus on trying to regain approval of the purchasing system negatively impacting the focus on subcontract performance. So why in the world would you want to impose additional burdens on the subcontractor at this time. Why would you want to have the company submit another CAP to you and have them attend meetings with you to monitor progress? Isn't that counterproductive to your concerns?

    4. The subcontract you awarded contains all remedies for late performance or non-performance. I would suggest that unless you have terms that permit you to do what you want to do (i.e., request a CAP and monitor progress against the CAP), you refrain. You might find yourself with a REA or claim submitted for the additional costs associated with your additional requirements.

    5. Further, you cannot transfer performance risk to subcontractors. You, as prime, are already responsible for contract performance to your government customer. The most you can do is to sue the subcontractor or impose liquidated damages (if permitted by your subcontract).

    5. What, specifically, are the risks you are trying to mitigate by imposition of additional requirements?  If the issue is a critical item such that a second source is not feasible, then you already had the risk of non-performance yesterday before the subcontractor's purchasing system was disapproved. What has changed? Nothing. If the subcontractor's performance is critical to your program performance, and you weren't already monitoring your subcontractor's performance yesterday, why is today going to be different?

    Despite Neil's comments I think you are very much overreacting. If nothing else, you are stepping into the government's role of reviewing, assessing, and determining the adequacy of the subcontractor's purchasing system. Why in the world would you want to do that? Do you also want to audit the subcontractor's final billing rate proposal on behalf of the DCAA? (See the LMIS ASBCA decision from December 2016.)

    Again, just my point of view.

  9. 12 hours ago, MrJP said:

    What should we do to ensure performance from a company that just lost approval of their purchasing system as a result of a recent CPSR?

    Adding to Vern's questions --

    What are your concerns? What risks do you see, against which you would like assurance?

    Fundamentally, I don't see ANY ADDITIONAL way to "ensure performance" because any contract/subcontract you have already awarded requires performance. Do you think another signed letter is somehow going to reduce the risk of nonperformance? I don't think so.

    I'd like you to answer Vern's questions so I know where you're coming from, but I don't think you're going to get to where you say you want to go.


    Let me add that contractors fail CPSRs frequently. Sometimes for tickey-tack reasons and sometimes for very valid systemic reasons. It happens; and it happens to the biggest contractors as well as the smaller contractors.

    Not much changes, except for consent requirements. Plus the contractor then dedicates a portion of its purchasing team (and leadership team) to developing and executing a corrective action plan, instead of spending time doing purchasing.

  10. On 11/30/2017 at 9:40 AM, Radu C. said:

    We have a CPFF Term prime contract with USAID and issued a Firm Fixed Price Independent Consultant Agreement to a consultant. The COR is requesting that we track LOE and count them against our prime contract's LOE.

    This doesn't strike me as an unreasonable request. You have a CPFF Term contract. To augment your workforce you engaged a consultant. The COR wants you to track the consultant's labor hours as if they were your own labor hours and count them as if they were your own labor hours.

    The fact that you awarded a FFP consultant subcontract would seem to be irrelevant. (It might also be unreasonable in certain circumstances. What if the consultant finished the subcontracted work in half the expected time?)

    Why are you pushing back so hard? What don't you want the COR to know?

  11. And people wonder why the best and the brightest want to work in Silicon Valley (or equivalent) where this question wouldn't even arise. Anything (within reason) that improves morale and/or reduces employee non-work time and/or reduces employee non-work stress will be provided. Why? Because those companies want their employees focused on the work in front of them.

    How much money was spent adjudicating this decision? How much time was taken from other, presumably more important things?

    We talk about fixing defense acquisition but this is a symptom of the dysfunction, right here.

  12. "A fair and reasonable price is (1) simply the (2) price that a (3) prudent and (4) competent buyer would be willing to pay given (5) available knowledge of the market conditions."

    Jamaal, I counted five assumptions in the declarative sentence quoted above, any of which I could challenge, especially in the defense acquisition environment. You make it sound so simple and yet we have multi-year solicitations and multiple bid protests and post-award litigation that belies the simplicity of it all.

    My favorite is assumption (2), divorcing price from proposed/negotiated costs. I would purely love life if we could "simply" submit proposed prices and then, using available knowledge of the market conditions, the CO would determine which price was the right price to pay, regardless of the costs we expected to incur. How can we make this happen?

    Yours in jest, H2H

  13. 12 hours ago, MV2009 said:

    ... how does the individual change the perception of the office that industry may have? Revising the requirements is key but the lack of interest from industry regarding the requirements makes me believe there is more to the story than just the requirements being revised.

    First, industry's perception of the competency of the office should be irrelevant to the individual government employee's decision whether to stay in that office or to depart.

    Second, industry really doesn't care how inept (or ept) government employees are, so long as they do their jobs fairly and impartially to the best of their ability. I sometimes run across government employees and think to myself "Dang I wish they worked for the contractor"--but of course I cannot even hint at that. Less frequently I run across government employees and think to myself "How do they keep their job?"--but of course I cannot even hint at that either. However, the most common reaction is "meh" -- so long as the individuals do their jobs reasonably well and reasonably impartially, industry is usually good. And believe me, industry does not tend to form judgments about offices or components very often. (Except DFAS.)

    It's when government employees depart from the rulebook (whether documented in FAR, an agency supplement, or in the contract) that industry starts to care. Thus, requirements do matter to industry, but only to the extent that they are (a) reasonable, and (b) implemented consistently and fairly. Other than that, industry mostly keeps its nose out of government business and tries to perform its contract(s) to the best of its ability, and it hopes the folks on the government side are doing the same thing.

  14. 46 minutes ago, Retreadfed said:

    H2H, maybe times have changed since I worked for DoD, but during my time, I served on three DAR committees.  Each of the "lifetime bureaucrats" on those committees was a working member of the acquisition workforce.  Thus, they would have to live and operate under each DFARS rule they passed.   Sometimes our discretion was limited by the statutes or FAR rules that needed to be implemented.  Also, our work needed to be reviewed and approved by political creatures at OMB who did not always agree with our results.

    I meant no offense. The process seems opaque to me. The responses to public comments received seem to be perfunctory if not misleading. The priorities seem to be set by others and not be the Committee(s). The rule-making seems to be driven by an agenda that does not have the best interest of the acquisition workforce at its center.

    Further, what you describe sounds like a process ripe for streamlining.

    Again, no offense meant. Perhaps things have changed since you worked there.

  15. 2 hours ago, bob7947 said:


    There is an answer but should future Councils have to regulate in this manner?


    I suspect you are asking the wrong question.

    A better question could be: "Should FAR and agency supplement rule-making be subject to the whims of lifetime bureaucrats who have allegiance to their immediate bosses rather than to the acquisition workforce?"

  16. If you look closely at my WIFCON avatar, you can read a quote that I thought was powerful enough to warrant reiteration as much as possible:

    "The culture of any organization is shaped by the worst behavior the leader is willing to tolerate."

    Option 1: Become an agent for change. This is the hardest road, but the one with the most payoff at the end. It's risky and, if you don't succeed you might regret taking this path--but it's the honorable thing to try.

    Option 2: Become an agent for the OIG. Gather evidence. Report your co-workers. Remember your higher allegiance is to the country and the taxpayers. There's no payoff here, except the knowledge that you helped to rid the workforce of some bad people.

    Option 3: Get out. Don't wait for a new job to arrive, just get out now. If you have skills you should find a job fairly quickly--especially if you are willing to relocate. Save yourself because you can't save anybody else.

    Option 4: Keep your head down and shut up and do your job to the best of your ability, knowing that you are surrounded by people who are incompetent at best and law-breakers at worst. But at least you have a paycheck and benefits. There's no honor here, but you are surviving.

    Hope this helps.