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​Safeguarding applies to the contractor information system, not to specific information within the system. Information security applies to only securing the information. Therefore, informational security is narrower than safeguarding. For example, you could secure information by encryption and redundancy You safeguard through authentication; securing information (methods identified previously); limiting network availability; hardware/software; or physical security. Information security is one aspect of safeguarding an information system. The FAR Council got it right.

See this thread: http://www.wifcon.com/discussion/index.php?/topic/1864-expiration-of-a-contract/

Hi Jamaal - I am not familiar with any specific instances of this occurring outside of GSA Federal Strategic Sourcing Initiatives or Government Wide Acquisition Contracts (NASA SEWP, NITAAC, 8(a) STARS, etc.). Those types of contracts are not Economy Act acquisitions and the servicing agencies have their own specific statutory authorities. In terms of "anything precluding this type of interagency transaction," the servicing agency could have agency-specific statutory authority to issue solicitations on behalf of another agency that identifies the conditions for such an interagency solicitation. If no agency-specific statutory authority applies, then the Economy Act applies, which requires (see FAR Subsection 17.502-2©(1)(iii)): "( A ) The acquisition will appropriately be made under an existing contract of the servicing agency, entered into before placement of the order, to meet the requirements of the servicing agency for the same or similar supplies or services. ( B ) The servicing agency has the capability or expertise to enter into a contract for such supplies or services that is not available within the requesting agency. ( C ) The servicing agency is specifically authorized by law or regulation to purchase such supplies or services on behalf of other agencies." Only a couple of CFO Act agencies have statutory authority to purchase supplies or services on behalf of other agencies. In all instances, there is some mechanism for which the servicing agency gets reimbursed for the administrative cost of the procurement so as not to supplement an appropriation. What is more common is agencies sharing information received from other procurements, including statements of work, source selection information, and market research.

It is really difficult to lump all commercial software development projects together and create a single template that will be great for all. One size does not fit all. With that said, one strategy that I have used is a combination of T&M labor categories and FFP line items, and have a single contractor perform the work. I strongly recommend a single contractor, as only the contractor has a reasonable method to estimate coding time of its personnel. Estimating coding by a separate contractor constitutes what some would call a "WAG." Typically, all software projects involve three basic steps: 1) Needs Assessment (it has been called Blueprinting here); 2) Software Development 3) Maintenance and Support Under Phase 1, I use a T&M. Unless the project is very simple with a small amount of stakeholders, or minor modifications to an existing software, I think you run into too much risk not to use a T&M. During this phase, the Contractor will need to meet with your stakeholders, gather project objectives and functional requirements, and design integral documents (at a minimum: wireframes, data flow diagrams, needs assessment report documenting stakeholder requested functionality [becomes your functional specifications], testing plan, deployment schedule, workflows, and an price estimate to implement). The last document, the price estimate, will identify FFP line items. Those FFP line items are based upon the complexity of a specific feature. For example, a moderately complex feature, which the government anticipated would take 30 hours each, is $3,000. This way, the government should receive a list of features that make up the software project, all tied to the FFP line items in the contract. The Government can then negotiate with the Contractor to specify which features to pursue and then authorize work for phase 2. The CO modifies the contract with the necessary funds and provides authorization to proceed with development of specific features using the FFP line items. Under Phase 2, the Contractor implements the features authorized by the CO in Phase 1. One issue you are going to face is your customer changing their mind about a feature. The needs assessment said that the module should do a, b, and c, but really wanted x, y, and z. You are going to need a T&M line item for these scenarios and a process to allow agility in project development. Use your project schedule as a guide for which sprints offer opportunities for changes, and how you will prioritize which changes get implemented. Under Phase 3, I use a single line FFP line item that represents a percentage per year of the total development cost. This is a standard commercial practice by hundreds of software developers. Through the line item structure, you can estimate the number of features and complexity of those features. You can estimate the number of hours required for the needs assessment. You can estimate the hours needed for changes. You can estimate maintenance cost. With a reasonable basis for comparison, you can conduct a best value trade off between software vendors. A cost reimbursement contract would probably be easier and get you similar results, but many vendors are ill-equipped with cost accounting systems or financial expertise to submit a proper proposal. Not to mention, cost reimbursement is not a standard commercial practice for commercial software. That is why they are unallowable under FAR Part 12.

No, the Small Business class contracts were separate solicitations than those of the full and open competition class. You would need to acquire a Contractor that held a set-aside class contract in order to remain within the set-aside class. In addition, the small business redetermination clause may apply if your new business entity is not small.

In Section L, I have asked similar questions to those identified by Vern, especially when my evaluation criteria includes a price realism analysis. The Vendors answers, along with the other than cost data, would demonstrate its understanding of the work. For example, on your contract for catalytic converters, you would probably want your prospective Vendor to identify the price of platinum; aftermarket parts availability, and distribution locations as part of the "market factors" question. Generally, Vendors must comply with the instructions to offers in order to be eligible for award. Of course, the Vendor could look at the instructions and evaluation factors and decide it is too much of a hassle, and go onto the next opportunity.

Thank you for the link, ji.

GeoJeff, how I have handled situation like yours in the past it's to conduct a small business set-aside on a GWAC. Switches are waived from the non-manufacturers rule and small business set-asides are an exception to the TAA. As a bonus, your agency will receive small business credit, with almost 20 small business HP-resellers.

Like Jamaal, I too am a little confused about interpretating FAR Clause 52.212-4(d), 52.233-1, and 52.232-1 Alt 1. Vern indicated that the Contractor may stop work in the case of the Government not paying if it constitutes a breach and FAR Clause 52.233-1 Alt 1 is not included. I am assuming Vern said that because failure to pay may be a dispute "relating to the contract" where a "claim that cannot be resolved under a contract clause other than the clause at 52.233-1." However, in the case of non-payment by the Government, couldn't you consider the Prompt Payment Act and the automatic interest adjustment under FAR Clause 52.212-4(i)(6) as the mechanism to resolve a payment-related dispute? If the answer is yes, wouldn't the contractor be obligated to continue performance in the case of non-payment, even if FAR Clause 52.233-1 Alt 1 was not included in the contract?

Take a look at the FP-EPA clause in your contract, sometimes FAR Clause 52.216-2, Economic Price Adjustment-Standard Supplies. This will tell you when your adjustment is effective.

Woops, I should not have said "not applicable" - you're correct.

Ji, just to clarify and based upon OP's statement that this is a commercial item acquisition (inclusion of FAR Clause 52.212-4), FAR Clause 52.233-1 is not applicable. The correct reference is FAR Clause 52.212-4(d).

1) What does the contract say about payments? If nothing, it is assumed payment is made upon completion of work or delivery (I.e. Commercial delivery payment) of a specific line item. You are only entitled to payment in arrears (i.e. commercial interim payments) if the contract authorizes it. 2) Unless the contract says you can stop work, you will be in default of the contract if you stop work without the agency's explicit direction. I strongly, highly, really, really recommend you continue to perform. See FAR Clause 52.212-4(d) that says you will continue to perform. 3) You could try to file a claim or REA. However, it sounds like you have failed to meet your contractual obligations. I recommend carefully reading FAR Clause 52.212-4(f) and consider whether to notify the CO of an excusable delay due to delay of the sovereign. If there is an excusable delay, and you meet the terms of paragraph (f), you are entitled to certain remedies. Try looking at the situation from the Goverbment's perspective. You may have delivered reports, but you did not adhere to the staffing requirement. When you submitted your invoice, you essentially said you adhered to all contract requirements, but you admitted to is that you did not, but possibly because of mitigating circumstances. P.S. I am not your lawyer.

I would like your opinions to brainstorm ways that acquisition-related training can be improved. A few months ago, Jamaal had created a post concerning improvements to the acquisition systems; one of those items was training. I believe that improving training is an attainable opportunity this year. It is unlikely that we will see an overhaul of acquisition training system, but there are smaller changes that I think could enhance the major goals of training: 1) improving job performance; 2) measuring effectiveness; 3) determining future training needs. I recently took a training course from an FAI-approved and DAU-certified Vendor for continuous learning points (CLPs) towards renewal of my FAC-C certification. The material was of decent quality; the instructor was knowledgeable; on paper, the students did great, since everyone received 100% on the test. The hidden academic integrity issues, however, hindered students’ ability to truly learn the material and reduced the importance of classes to merely checking off a box. To get the discussion started, here are a few solutions that I think could improve federal acquisition training (note that the problems apply towards both private and Government training providers): 1) Solution: Test answers closely guarded and pre-release harshly punished. Issue: Everyone must pass mentality. In nearly every FAI-approved training class, the instructor either specifically identified which questions would be on the test, or let us know to “highlight” a specific area in the text. In any other setting, this would be an academic integrity violation, with the professor being fired and students having to retake the test. In the Government academia, however, both the agencies and training provider have a mutual interest in ensuring everyone passes. To resolve this issue, FAI should suspend or debar training providers that release test questions or identify answers with an intent to violate the integrity of the test. Students that received training certification from a class in such an instance should be required to retake the class. 2) Solution: Closed book tests Issue: Open books as a crutch during testing Acquisition-related courses routinely allow students to use their notes and book during the test. Open book exams, especially combined with #1 above, teach students how to effectively find the correct page, and not employ deep knowledge. The open book presents a crutch for the student so that they do not need to memorize content. By not memorizing content, it reduces that student’s chance to retain the information after class, and does not reflect knowledge of material during test time. All classes should have closed book tests to measure knowledge. By having all tests as closed book, you force students to study and learn the training material and better apply that material on the job. 3) Solution: Training lasting the whole 8-hour day. Issue: Class ending early, but still providing the full CLPs All acquisition classes in the FAI/DAU framework include a number of CLPs. Those CLPs represent one hour of training. Training providers routinely let students out early on the last day, and sometimes on normal training days. One time, I was released from training at 11 a.m. while in a class that was supposed to end at 4 p.m. Students being released from training early is paramount to theft of taxpayer dollars. The agency paid for 40 hours of training but received only 34-36 hours. For any normal contract, you would send a show cause letter for why the Contractor failed to deliver as obligated. Further, it robs students of the opportunity to learn; during that four hours or more, the instructor could have provided additional instruction or a group activity to further hone the student’s knowledge. All classes should be the duration of their advertised CLPs or the training provider should provide a partial refund. Classes that were not of the duration of DAU/FAI-approved classes should not count towards certification. 4) Solution: Expanded test and individual scorecards after class. Issue: Training providers do not provide students and agencies with feedback for individual improvement. Currently, students receive one or two tests, usually ranging from 25 to 50 questions each, respectively. Standard DAU/FAI policy is to receive an 80-percent score on those tests, or the student is required to retake the incorrect portion of the test. Hardly anyone fails these tests (namely because of the issues in #1 and 2). Afterwards, the student received his or her percentage score. This score is meaningless to the student and the agency because it does not identify areas for improvement. Instead, tests questions should relate to specific categories, and results for those categories should be relayed back to those students with recommended additional training that could help enhance knowledge and improve effectiveness. Supervisors could use this information to target on-the-job training for employees. Please let me know what ideas you have to improve training.

Can the Government obtain IT system hardware and software as a service when they are the sole user of the system? Yes, provided that the Contractor's "primary purpose is to perform an identifiable task rather than to furnish an end item of supply" (FAR Section 37.101). For example, many agencies purchase webhosting services, which are considered an IT service, that involve IT systems and software for the use of only that agency. As Vern mentioned, a scope of "obtain IT system hardware" could never be considered a service; whereas, "provide IT facilities, operations, and support" would be a service (see NAICS 541513). When describing your needs, you need to focus on your functional performance service requirements rather than specifying the type and quantity of devices. Would this violate the color of money or operational lease regulations since they are effectively to sole user of the system and are calling is as a service to side step color of money regulations? Possibly. You have historically used another fund for same intended purpose. In appropriation law, the "pick and stick" rule might apply (see Comp. Gen. Decision B-306424). This rule holds that where two appropriations are available for the same purpose, you may select which one to charge for the expenditure in question. Once you make that selection, you must continue to use the same appropriation for that purpose unless you talk to Congress.

Don, do you think that FAR Provision 52.214-21, Descriptive Literature, could be the means for the agency requesting and evaluating the supply chain management plan (particularly paragraph (B )(5))?

I agree with H2H's statement. Though, this all changes for the commercial spare parts industry, which is far more lucrative in terms of percentage of profit margin than non-commercial when not faced with statutory caps on fee. For example, look at the toner cartridge industry. Back in 2005, Bloomberg reported that one conglomerate brought in $87 billion in revenue, with a reported earnings of $2.4 billion (a net margin of 2.75%). In contrast, that firm's ink and toner brought in around $21 billion with earnings of $1.3 billion (a 6.2% net margin). In this case, while spares accounted for about a quarter of the revenue, they represented over half of the company's earnings.

GSA recently modified its Federal Supply Schedule contracts to account for this very issue. Now, the contracts include GSAM 552.212-4 which deviates from the commercial item clause concerning issues related to: 1. Definition of contracting parties 2. Contract formation 3. Vendor indemnity (vendor assumes control of proceedings) 4. Automatic renewals of term-limited agreements 5. Future fees or penalties 6. Taxes 7. Payment terms or invoicing (late payment) 8. Automatic incorporation/deemed acceptance of third party terms 9. State/foreign law governed contracts 10. Equitable remedies, injunctions, binding arbitration 11. Unilateral termination of supplier agreement by supplier 12. Unilateral modification of supplier agreement by supplier 13. Assignment of supplier agreement or Government contract by supplier 14. Confidentiality of supplier agreement terms and conditions 15. Audits (automatic liability for payment) See more at: https://interact.gsa.gov/document/how-gsa-intends-address-commercial-supplier-agreements#sthash.mLmmhoO2.dpuf Since you are issuing an open market purchase order, you have three options: 1) award the contract to someone else; 2) negotiate a better deal; 3) accept the terms and conditions. Which option you select is based upon your negotiating position and how much you need to purchase the supplies/services from this particular contractor. In situations where option #3 is necessary, and you have a commercial item contract, you could include the "dubious" document and rely on FAR Clause 52.212-4(s), Order of Precedence, provided all terms in the document were covered under the commercial item clause.

We have mostly commercial acquisitions (non-DOD). Per Don's method, I maintain a clause book for my staff to assist in completing FAR Clause 52.212-5. I wonder how many other agencies do the same thing? Lots of hours could probably be saved if one agency decided to make public the clause book for all agencies to use. Even better, it could be part of the FAR Matrix (which, based upon WIFCON feedback, I hope I can be a catalyst for change). For all other clauses, we use approach #1.

Thank you for the explanation, Vern.

Hi Jamaal, by "FAR supplements," are you referring to FAC updates? If so, I think that is a great idea, especially as a strategy to maintain the matrix over time. Another thing I think could be helpful is if you selected a commercial item acquisition, the matrix would show, in order, the check off clauses in FAR Clause 52.212-5 along with the prescriptions. This would save time entering the fill-ins.

Matthew, good points. Does anyone else have any other ideas for how to improve the matrix? Another improvement is the ability to export to different formats, such as XML. Vern, if it is not too much trouble, can you please elaborate on how "the clause logic is deeply flawed"?

1) My agency believes that, if there are any barriers to setting up these types of contracts, they will pursue an exception to the FAR or other regulations - can anyone think of any regulatory hurdles that might have to be overcome (for example, I don't know if GSA and the VA are the only agencies allowed to award FSS type contracts)? Maybe, but there is not enough information provided. * How much money do you and your customer anticipate spending? * Does your agency have specific statutory authority to create a purchasing vehicle for states? * Have you already investigated the GSA Cooperative Purchase agreement that allows states and local governments to purchase from some GSA FSS and BPAs and determined that it won't meet your needs? See http://www.gsa.gov/portal/content/202313 2) I've see that the GSA FSS site mentions that these type of contracts can be used by State and Local Governments for ordering purposes - is there a FAR reference that specifically allows this? Section 211 of the E-Government Act of 2002 (Public Law 107-347)authorized state and local governments access to Federal Supply Schedule 70, Information Technology (IT), and Consolidated (formerly Corporate Contracts) Schedule contracts, containing IT Special Item Numbers (SINs). I do not know if it is codified in the FAR. 3) Would this type of contract require an interagency agreement between the State and Federal Governments? Is the Economy Act a consideration? No, an agency includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency (28 U.S. Code 2671). A State Government does not fall within to one of those categories, and therefore is not considered an agency to agency transaction applicable to the Economy Act or interagency agreement requirements.

Hi Lucy, did you try GSA eLibrary and seeing if the contract is listed there? http://www.gsaelibrary.gsa.gov/ElibMain/home.do Update: Here is a copy of the PSS Solicitation and refer to document 19: https://www.fbo.gov/index?s=opportunity&mode=form&id=29887a813e66c145220492b0f50bf123&tab=core&_cview=1

Vern, I am surprised about your feelings towards the FAR matrix. The matrix was one of the topics that you covered at some length in your FAR Bootcamp class. Without the matrix, the only way for a fledgling contract specialists to learn the provisions/clauses required in their solicitation is to 1) read and memorize the prescription for each provision/clause; 2) use someone's "template"; or 3) use software, such as PRODOC, that generates the provisions/clauses for you based upon answers to questions. I would like to see the matrix in an easier to use and expanded format. For example, I should be able to select which provisions and clauses I want to see. If I have a commercial item services requirement, I should be able to select that and the matrix would tell me which clauses are required or optional for that procurement. It would also be really helpful if the matrix would include a brief description of the prescription so that the contract specialist could look down the list to determine which provisions/clauses to include in his or her solicitation.