napolik

The post does remind me of remarks a professor wrote on one of my papers - one I thought was a masterpiece of clarity and insight: "Mr. napolik, your writing style calls to mind comments made by biographers on the writing style of Warren Harding: 'An army of words marching across the page in search of an idea'". His remarks bruised my self esteem, but they were true. I was too close to the subject, and I mistakenly assumed the readers possessed my knowledge and perspective.

Who actually makes the determination that the services are not inherently governmental - the agency head or his or her designated requirements official?

FAR 7.502 applies Subpart 7.5 to all contracts for services. FAR 7.503 (a) says that ?Contracts shall not be used for the performance of inherently governmental functions.? FAR 7.503(e) says Quote Agency implementation shall include procedures requiring the agency head or designated requirements official to provide the contracting officer, concurrent with transmittal of the statement of work (or any modification thereof), a written determination that none of the functions to be performed are inherently governmental. This assessment should place emphasis on the degree to which conditions and facts restrict the discretionary authority, decision-making responsibility, or accountability of Government officials using contractor services or work products. Disagreements regarding the determination will be resolved in accordance with agency procedures before issuance of a solicitation. Unquote DFARS 207.503, Policy, says Quote (e) The written determination required by FAR 7.503(e), that none of the functions to be performed by contract are inherently governmental? (i) Shall be prepared using DoD Instruction 1100.22, Guidance for Determining Workforce Mix; and (ii) Shall include a determination that none of the functions to be performed are exempt from private sector performance, as addressed in DoD Instruction 1100.22. Unquote Given this coverage in the FAR and DFAR, I am curious to know the answers to two questions: 1. How many contracting folks are preparing for every service contract the FAR 7.503(e) determination that the contract does not cover inherently governmental functions? 2. How many DoD contracting folks prepare the determination using the DFARS guidance?

Ffed, what difference does the FAR Part - 13, 8 or 16 - make to the matter? For me, regardless of the FAR Part governing the procurement, the threshold issue is acceptability of the quote or offer. If it is acceptable, who has standing to challenge an award to the only acceptable quote / offer?

It is good to know cynicism is not limited to a specific generation! I thought it was confined to "grey hairs" or "no hairs". DoD is doing this not merely to create rules; it is seeking ways to make the Better Buying Program a success. Given the reductions, or reductions in growth rates, confronting DoD, improved competition is seen as one way to reduce the costs / prices DoD pays for its goods and services. Big DoD believes, not without some justification ? in my view, that poor SOWs, short lead times, excessive proposal requirements and the overuse of past performance in evaluation criteria reduce the number of firms willing to prepare and submit proposals. These practices also discourage new entrants to DoD procurement that could offer better, lower priced ways of doing things. Other ways to promote the success of Better Buying Power include improved requirements? definition, different contract types and better contract admin. V/r, Pangloss

The memo has been modified effective 27 April. See here: http://www.acq.osd.mil/dpap/policy/policyv...080-11-DPAP.pdf. DoD is pushing hard not only on competition, but on "effective competition". The later term is defined as a competition that elicits at least two quotes or offers. "Competition" is a process; "effective competition" is an outcome. All DoD components now have goals for "effective competition" as well as for "competition".

Let us look at the words GAO used in the United decision: Quote In particular, FAR subpart 12.3 sets forth four clauses which must be incorporated into solicitations for commercial items and one clause which is optional. As a general rule, such solicitations are to include "only those clauses . . . [r]equired to implement provisions of law or executive orders applicable to the acquisition of commercial items . . . or . . . [d]etermined to be consistent with customary commercial practice." FAR Sec. 12.301(a). FAR Sec. 12.301( lists the four mandatory clauses: (1) "Instructions to Offerors--Commercial Items" (FAR Sec. 52.212-1); (2) "Offeror Representations and Certifications--Commercial Items" (FAR Sec. 52.212-3); (3) "Contract Terms and Conditions--Commercial Items" (FAR Sec. 52.212-4); and (4) "Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items" (FAR Sec. 52.212-5). All of these clauses were incorporated by reference on the first page of the RFQ. The optional clause which is to be used when FAR part 15 type procedures may be contemplated, that is, "[w]hen the use of evaluation factors is appropriate," FAR Sec. 12.301?, was not included or incorporated. Unquote In this paragraph, the GAO lists an inventory of clauses that implement FAR 12.301(. In the final sentence, it notes that the Corps of Engineers? solicitation did not use FAR 52.212-2. The final sentence mentions FAR 15 not because FAR 52.212-2 must be used only in FAR Part 15 solicitations, but because the protestor, United Marine International LLC, alleged that the Corps "... violated a number of provisions in part 15 of the FAR ... " in its conduct of the procurement. There is nothing in the prescription for the use of 52.212-2 that limits its use to FAR Part 15 procurements. See FAR 12.301( c ): Quote ( c ) When the use of evaluation factors is appropriate, the contracting officer may (1) Insert the provision at 52.212-2, Evaluation -- Commercial Items, in solicitations for commercial items (see 12.602); or (2) Include a similar provision containing all evaluation factors required by 13.106, Subpart 14.2 or Subpart 15.3, as an addendum (see 12.302(d)). Unquote When you are doing an evaluation as described in FAR 15.101-2 (i.e. LPTA) for a commercial item procurement, you could use 52.212-2. However, you could also use " ... a similar provision containing all evaluation factors ... ". If you are not doing a commercial item procurement and you are using FAR Part 15, you would insert in Section M of your solicitation a provision resembling FAR 52.212-2 that implements 52.215-1(f)(1).

The standard FAR option clause for services - 52.217-9 - gives you a unilateral right, not an obligation, to exercise the option. If you decline to exercise the option, you cannot " ... go with a new contract to the other vendor ..." unless you have prepared a sole source determination or J&A, or you have competed the requirement.

It is back as of today.

See paragraph ( c ) of FAR 1.108 ? FAR Conventions. Quote ( c ) Dollar thresholds. Unless otherwise specified, a specific dollar threshold for the purpose of applicability is the final anticipated dollar value of the action, including the dollar value of all options. If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events, the final anticipated dollar value must be the highest final priced alternative to the Government, including the dollar value of all options. Unquote

No, See FAR 15.403-1( c )(2): ?Prices set by law or regulation. Pronouncements in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set a price.?

Do we furlough the SADBUs? I have it on good authority that Monsieur V has contacted the right people. They have acknowledged an editing error that will be corrected next week.

Today, I went to the GSA and Hill AFB FAR sites to copy the FAR 19 coverage of the Rule of Two. Not only is it not on the official FAR site, but it is not on the Hill AFB site. Moreover, the Hill AFB site does not match the official FAR site. Could this be the work of a sinister large business force? Could it be a product of my technological incompetence? Could it be that the FAR Council reinterpreted the SB legislation and dropped the Rule of 2? Or, could it be that the Rule has been moved from FAR 19.502-2 ( to another FAR Part, Subpart or section?

There it is: IT rules! Or, IT overrules (common sense)! That's what happens when those bits and bytes control the acquisition process.

Not in DOD. Ask your agency's competition advocate.

Please cite one of the plethora of cases to which you refer. Be sure to identify the case's reference to a FAR 8 BPA. After that, re-read the FAR discussion of Part 8 and Part 13 BPAs.

Well, some of us attended parochial schools.

Rousseau with a thesaurus vs. Locke with the FAR.

I believe he meant certified c or p data. See this extract from his last post: Quote I think in summary, at the prime, we are exempt from certified cost or pricing data, but are required to obtain certifed cost or pricing data from the suppliers that meet the TINA requirements based on the FAR references in the posts. Any other thoughts? Unquote Or, perhaps I am confused, again.

BPAs under FAR 8 (see FAR 8.405-3) are quite a bit different than those under FAR Part 13 (see FAR 13.303). FAR Part 8 BPAs have much more in common with FAR Part 16 multiple award contracts than with FAR Part 13 BPAs. As you have seen from the interim rule you reference, options are used with FAR 8 BPAs. By using option periods, an agency could obtain discounts from prices below those contained in the schedule, and its options, against which the BPA is placed.

I just spoke with the CPARS Help Desk. The representative confirmed that support contractors can do data entry (i.e. CDE), but cannot enter assessment / rating info.

I pulled out one of my Navy manuals on CPARS guidance dated October 2000. Here is what it says at paragraph 7.2.3: Quote "Support contractors may provide data entry assistance for CPARS at the Contract Data Entry Clerk and the Assessing Official Representative access levels, provided that any necessary disclosure agreements have been executed. At no time may support contractors contribute to CPAR development in the form of ratings and comments." Unquote I also extracted the following quote from a DOJ document dated October 2010 on this site: http://www.justice.gov/jmd/pe/pdfs/2011-01.pdf. Quote 3. QUESTION: How does a Focal Point get the CDE access so that they can register a contract without having to go through the process of registering the contract and then actually filling out the user authorization matrix? RESPONSE: There is an optional role in CPARS called the Contract Data Entry (CDE) role. The purpose of the CDE is to help out in the registration of contracts in CPARS. The CDE role is the only role that can be filled by a support contractor. If an office that has someone available that can go into CPARS and just register contracts, then a Focal Point can give the CDE access to those contracts so that they can go in and register the actions. The CDE will have access to basic contract information: Summary information. Much of it is pre-populated. No matter what your role is if you are going to be involved with writing CPARS or providing input you have got to get access from your Focal Point. Unquote I have not heard back from the CPARS help desk.

I am unaware of a prohibition against a CPARS focal point designatiing a contractor to make inputs to CPARS. I just called the CPARS help desk to ask the question, but no one answered the phone. While I await a return call, you may wish to contact the help desk directly. The phone number may be found here - http://www.cpars.csd.disa.mil/cparsfiles/cpars/freqask.htm - along with other information on CPARS.

Contractor support of the acquisition function, while discouraged, is not uncommon, at least in DoD. DoD is trying to eliminate such support via increases in the size of the acquisition workforce (e.g. Section 852). However, many contractor employees are still seen in many contracting offices performing many acquisition functions except signing the contract, including many offices in DC supporting OSD directly. Since the DoD CPARS feeds into government wide PPIRS, I consider the data to be the same in terms of its nature and releasability to contractors. The CPARS data are primarily collected for consideration when agencies use past performance in source selections. The DoD policy is that contractors should have access only to data pertinent to their company. I do not believe that the CPARS or PPIRS policy folks have considered the issue of granting access to the data to contractor personnel supporting contracting offices. The CPARS and PPIRS data represent source selection information. See the ninth entry in the definition of source selection information seen in FAR Part 2. See FAR Part 9.5 for controls on access to proprietary information including source selection info. Until such time as DoD bans the use of contractor support in contracting offices, or new government contracting folks displace the contractor support, or the FAR and DFARS change, I believe your actions will be limited to recognizing the potential for conflicts of interest and to taking steps to mitigate them in your solicitations and contracts (e.g. OCI provisions and NDAs). BTW, there is a FAR case on OCI ? 2011-001 working its way down the long and winding road through the FAR council. Here is a synopsis of the case: ?2011-001 Implements section 841 of the NDAA for FY 2009 (Pub. L. 110-147). Section 841 requires consideration of how to address the current needs of the acquisition community with regard to Organizational Conflict of Interest. Separately addresses the issues regarding unequal access to information.?

The answer is found in FAR 15.403-4: Quote 15.403-4 -- Requiring Certified Cost or Pricing Data (10 U.S.C. 2306a and 41 U.S.C. 254b). (a) (1) The contracting officer shall obtain certified cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403-1( applies. However, if the contracting officer has reason to believe exception circumstances exist and has sufficient data available to determine a fair and reasonable price, then the contracting officer should consider requesting a waiver under the exception at 15.403-1((4). The threshold for obtaining certified cost or pricing data is $700,000. Unless an exception applies, certified cost or pricing data are required before accomplishing any of the following actions expected to exceed the current threshold or, in the case of existing contracts, the threshold specified in the contract: (i) The award of any negotiated contract (except for undefinitized actions such as letter contracts). (ii) The award of a subcontract at any tier, if the contractor and each higher-tier subcontractor were required to furnish cost or pricing data (but see waivers at 15.403-1( c )(4)). Unquote Per FAR 15.403-4 (a)(1)(ii), the contracting officer obtains cost or pricing data before awarding a subcontract if the prime contractor was required to provide c or p data. If, as you state, the CO determines that adequate competition exists, then, per FAR 15.403-1((1), he or she shall not require c or p data.