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FAR 13.5 Test Program for Commercial Items - expires Jan 1, 2012?

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I frankly don't see the point in calling anybody to ask about anything, other than idle curiosity or research into bureaucratic processes.

The real task now is for everyone who cares to make a case for the program and to provide numbers or anecdotal evidence in support. My bet is that the program is going to be reinstated as soon as practicable.

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Since the passage of the Federal Acquisition Streamlining Act of 1994 (FASA), the preference within the Federal Government has shifted from the acquisition of items developed exclusively for the Government to the acquisition of commercial items. This change was necessary to take full advantage of available and evolving technological innovations in the commercial sector. The Government?s increased reliance on commercial items is essential to provide technology solutions that increase warfighter capabilities.(Source: http://www.acq.osd.mil/dpap/Docs/cihandbook.pdf )

For the past 11 years, we have used this test program extensively to acquire commercial equipment, supplies and services. The loss of the test program rescinds the COs' ability to use procedural discretion and flexibility, so that commercial item acquisitions in this dollar range could be solicited, offered, evaluated, and awarded in a simplified manner that maximized efficiency and economy and minimized burden and administrative costs for both the Government and industry.

At this Agency, we?ve been tasked to provide examples of our use of the Commercial Item Test Program, and describe the resulting benefits derived by using Federal Acquisition Regulation Part 13 procedures for Commercial Items valued in excess of the Simplified Acquisition Threshold. Rather than providing anecdotal evidence of the effectiveness and efficiencies of the Test Program, however, it may be relevant to bring forth conclusive evidence that has already been provided to justify the continuation of the Test Program, and/or conversion to a permanent acquisition methodology going forward.

Specifically, please refer to the Under Secretary of Defense FY2007 Competition Report, which includes references to Component Initiatives such as the Commercial Item Test Program, and provides numerous specific examples of the savings and efficiencies gained via use of the Test Program:

http://www.acq.osd.mil/dpap/cpic/cp/docs/DoDFY2007Report.pdf

Based on the recurring extension(s) of the Test Program, it appears that it may be appropriate to make the Test Program a permanent fixture in the Federal Acquisition toolbox.

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For the past 11 years, we have used this test program extensively to acquire commercial equipment, supplies and services. The loss of the test program rescinds the COs' ability to use procedural discretion and flexibility, so that commercial item acquisitions in this dollar range could be solicited, offered, evaluated, and awarded in a simplified manner that maximized efficiency and economy and minimized burden and administrative costs for both the Government and industry.

Why will use of FAR 12.6 take more time than FAR 13.5? What additional steps must you take under the former that you avoided under the latter?

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Why will use of FAR 12.6 take more time than FAR 13.5? What additional steps must you take under the former that you avoided under the latter?

napolik,

There is some additional flexibility with regard to evaluation of quotations and source selection (FAR 13.106-2( b )), file documentation/retention (FAR 13.106-3( b )), and postaward notifications/debriefings (FAR 13.106-3( c ) and (d)). But there are precious few, if any, "steps" that can be saved.

The lapse of this program is hardly a crisis.

-Geo

P.S. Sorry about the weird spacing in my FAR references; they were necessary to avoid the insertion of smileys.

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One problem with the loss of the test program is that acquisitions of commercial items in excess of the SAT must now comply with the Competition in Contracting Act and FAR Part 6. During the test program, acquisitions of commercial items above the SAT up to the test program threshold were exempt from CICA and FAR Part 6 pursuant to FAR 6.001(a). Agencies had to prepare a J&A in the format specified in FAR 6.303-2 when making a sole source acquisition, but they otherwise did not have to justify getting other than full and open competition.

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Joel - Just an FYI, and whether PC or not, as civilian still very much interested in Federal acquisition matters I sent an email to the POC on 1/5/12 referencing this discussion thread to represent one piece of anecdotal evidence.

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napolik,

There is some additional flexibility with regard to evaluation of quotations and source selection (FAR 13.106-2( b )), file documentation/retention (FAR 13.106-3( b )), and postaward notifications/debriefings (FAR 13.106-3( c ) and (d)). But there are precious few, if any, "steps" that can be saved.

The lapse of this program is hardly a crisis.

-Geo

P.S. Sorry about the weird spacing in my FAR references; they were necessary to avoid the insertion of smileys.

Like you, I am having a difficult time identifying a crisis arising from additional steps and time associated with use of the streamlined procedure set out in FAR 12.603.

When doing the evaluation of quotes or proposals, FAR 13.106-2(B) is very similar to FAR 12.602. While the latter procedures require a statement of relative importance of evaluation factors, I do not consider that to be a problem. In fact, I find that a statement of relative importance enables contractors to submit quotes or proposals that better meet my customers? needs.

When evaluating quotes or proposals, I do not know why the evaluations, and their documentation, would be substantially different. In this regard, I note that the rather cumbersome DoD Source Selection Procedures issued in March of 2011 do not apply to FAR Part 12 Streamlined Acquisitions,

With regard to post award notifications and debriefs, I provide the notifications in all cases and the debriefs when they are requested.

There are also procedural differences associated with FAR 15 not seen in FAR 13. One must prepare a competitive range, if one seeks to exclude a firm from discussions. But, one must always document the bases for such a decision.

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I frankly don't see the point in calling anybody to ask about anything, other than idle curiosity or research into bureaucratic processes.

The real task now is for everyone who cares to make a case for the program and to provide numbers or anecdotal evidence in support. My bet is that the program is going to be reinstated as soon as practicable.

Gee Whiz, I sure do hope this program gets reinstated. I spent three years trying to convince the contracing officers I work with to utilize the program and simplify their acquisitions. I can't tell you how many copies of the N&C report I e-mailed to folks on the topic! Just in the past two months several different offices began seriously teaching their staffs how to take advantage of the test program! I agree with Vern, though, that this obvioulsy fell through the cracks and will most likely be reinstated. I am not aware of any controversy with this program that would have lead to a conscious effort on the Hill to scrap it.

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One problem with the loss of the test program is that acquisitions of commercial items in excess of the SAT must now comply with the Competition in Contracting Act and FAR Part 6. During the test program, acquisitions of commercial items above the SAT up to the test program threshold were exempt from CICA and FAR Part 6 pursuant to FAR 6.001(a). Agencies had to prepare a J&A in the format specified in FAR 6.303-2 when making a sole source acquisition, but they otherwise did not have to justify getting other than full and open competition.

Vern,

This is true. However, in practice, there is no discernable difference within my Department between a Part 6 J&A and a 13.5 J&A. Even the approval thresholds are the same. The argument that Part 13 requires competition only to the "maximum extent practicable" and that the noncompetitive standard is "only one source reasonably available," IAW FAR 13.106-1( b )(1), not "only one responsible source," IAW FAR 6.302-1( a )(2) has fallen on deaf ears. I attribute this mostly to the fact that many of those in policy positions have never actually conducted a simplified acquisition, or did so early in their careers when the threshold was $25K and long before the Test Program, and just cannot fathom that such a "big" purchase could be so "easy." So, via agency and Department policy, the Test Program has been thwarted to the point of being unrecognizably different from a regular Part 12 commercial acquisition in this way.

A similar thing has occured with supposed simplifed evaluation and source selection (i.e. a formal acquisition plan is required > $300K, commercial and/or Test Program or not.) Agency and Department policy just never caught up with the flexibilities the Test Program offered.

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Vern,

This is true. However, in practice, there is no discernable difference within my Department between a Part 6 J&A and a 13.5 J&A. Even the approval thresholds are the same. The argument that Part 13 requires competition only to the "maximum extent practicable" and that the noncompetitive standard is "only one source reasonably available," IAW FAR 13.106-1( b )(1), not "only one responsible source," IAW FAR 6.302-1( a )(2) has fallen on deaf ears. I attribute this mostly to the fact that many of those in policy positions have never actually conducted a simplified acquisition, or did so early in their careers when the threshold was $25K and long before the Test Program, and just cannot fathom that such a "big" purchase could be so "easy." So, via agency and Department policy, the Test Program has been thwarted to the point of being unrecognizably different from a regular Part 12 commercial acquisition in this way.

A similar thing has occured with supposed simplifed evaluation and source selection (i.e. a formal acquisition plan is required > $300K, commercial and/or Test Program or not.) Agency and Department policy just never caught up with the flexibilities the Test Program offered.

I echo those comments about the simplified acquisition procedures. It has taken me several years to get our contracting shops to acknowledge that there is a difference between Part 12 procurements and Part 15 procurements. Old habits die hard! I still see solicitations for commerical items that purport to be issued under the authority of the test program or under part 12 that then go on to add a half dozen evaluation factors, each with another half dozen subfactors, and a source selection plan that includes an evaluation scheme that could rival anything used by NASA or DOD for a complicated Mars mission or Star Wars system! It seems the contracting community is afraid of its own shadow, and believes that the more you litter a solicitation with factors, subfactors, colors, adjectives, and narratives, the better off everyone will be (read: the contracting officer can't then be blamed if a procurement goes south). I believe that a good many agencies never took full advantage of the test program because of this very fear. But eventually, with a newer crop of Contracting Officers arriving on the scene, things could change. Perhaps they will be more apt to use simplified procedures because the procedure won't seem so foreign to them.

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Fear is part of the problem, but professional ignorance and incompetence is a much bigger problem and the well-spring of most fears. The newer crop of contracting officers won't fix anything if they are trained by the current crop and if they rely on OJT, FAI, and DAU for their training instead of buying some books, thinking hard about what they read, and going their own way.

In order to avoid needless "you'e being offensive" comeback, I will make the de rigueur stipulation that there are some good ones mixed in among in the bad ones in the current crop. Anyone among the current crop who is inclined to feel offended should just think of yourself as being one of the good ones.

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Fear is part of the problem, but professional ignorance and incompetence is a much bigger problem and the well-spring of most fears.

LOL, I was going to say "group think beauracratic inertia", but, that works too! :P

When I first came into the contracting world and the larger universe of government acquisition, I too was guilty of learning purely from others in the organization and the DAU courses. I suppose when you are so green, this will be the natural tendency. One day, I decided to carefully read Parts 12, 13 and 13.5 and was rather confused that it did not match up with how my agency did things. That's when I first started having my own questions, not the least of which was why the heck we were making it more difficult than it needed to be. The classic lame answer "but we've always done it this way" seems to be the culprit.

How ironic that just as a tipping point seems to have been reached, with 13.5 finally started to sink into the thick skulls of many in the "old guard", the program slips away.

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Ironically, most reports would have you believe that the impending exodus of "experienced" 1102s is a bad thing.

To the contrary, that's just what many agencies need. I have been in this career field for almost 10 years. Don Acquisition was my first PCO, in fact (hi, Don.) I have now reached a point in my career where I can both interact comfortably with management-level acquisition professionals and train new 1102s. The difference in attitude is generally remarkable. Forgive the broad generalizations here, but those with 20+ years of experience tend to think in terms of how they used to do things, or have always done them, and those without experience are forced to research how things are supposed to be done NOW. And please don't get me started on my continuous learning rant, which is mostly meaningless once core DAU/FAI courses have been completed.

-Geo

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To the contrary, that's just what many agencies need. I have been in this career field for almost 10 years. Don Acquisition was my first PCO, in fact (hi, Don.) I have now reached a point in my career where I can both interact comfortably with management-level acquisition professionals and train new 1102s. The difference in attitude is generally remarkable. Forgive the broad generalizations here, but those with 20+ years of experience tend to think in terms of how they used to do things, or have always done them, and those without experience are forced to research how things are supposed to be done NOW. And please don't get me started on my continuous learning rant, which is mostly meaningless once core DAU/FAI courses have been completed.

-Geo

I have mixed feelings about the exodus only because at my agency anyone who knew what they were doing either never applied to work here or only stayed three months before leaving. As a result, the newer ones who have absolutely no idea what they are doing are using "old documents" to cut and paste into new ones, and because of attrition are being promoted to supervisors to pass on their lack of any understanding of the procurement process. To "fix" the quality control problem, my agency decided to require "peer reviews" of everything that goes out, and instituted a "checklist" review process. If it weren't so appalling, it would be funny to see a written review asking the contracting officer to change a comma to a period, while neglecting to recognize that the schedule reflects an IDIQ contract, while the clauses reflect a requirements contract. The checklists are used to ensure that appropriate documents are created (J&As, D&Fs, etc.) but no one reads them to see if they make any sense. Presumably, at least the "old dogs" sort of knew what they were doing, even if they had bad habits. Some of the news ones lack foundational knowledge altogether. In reviewing a claim we once received, I actually had a supervisor ask me what this term I kept using--"salient characteristics"--meant, when I was asking about them in relation to a brand-name-or-equal acquisition. She seemed shocked at the explanation and told me she had never heard of it before. In another instance, a contracting officer argued--forcefully--that the way to conduct a part 15 acquisition was to evaluate all of the proposals and then enter into discussions with only the one company that the evaluators wanted. It made no sense to her whatsoever why anyone would enter into discussions with all of the offerors. How do you combat this level of ignorance? Just how easy is it to get a warrant these days? Is it on a pass/fail bais, i.e., if you show up to class, you pass?

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In condering using FAR 12.6 as an one option, is there a $ threshold for using a Combined Synopsis??

I suggest you read FAR Parts 12 and 5.

Please let us know what you find.

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Ah! So now they're gathering information. More confirmation of my hypothesis that the thing was overlooked.

I don't doubt that they'll get the authority reinstated. Maybe even in a few weeks or months, rather than next year. They would already have gotten it extended if they had done their jobs properly -- last year, when they should have.

I obtained some additional info on DoD and FAR 13.5.

* DoD requested that FAR 13.5 be made permanent in FY 2008 and 2010 legislative submissions to Congress.

* DoD will request re-approval of FAR 13.5 in its FY 13 legislative submissions. Civilian agencies will do the same.

* The FPDS data do not reflect significant usage rates of FAR 13.5. A number of DoD components admit that their data were incorrect.

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Hooray! Looks like the President signed the NDAA for FY13, which provides a provision to extend the Clinger-Cohen Act, i.e., FAR 13.5, to 2015.

We were a little worried as that provision disappeared from the bill after the House approved it the first time, but it reappeared after conference with Senate and House.

Some here at my agency will be happy to see the update in an upcoming FAC!

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Hooray! Looks like the President signed the NDAA for FY13, which provides a provision to extend the Clinger-Cohen Act, i.e., FAR 13.5, to 2015.

We were a little worried as that provision disappeared from the bill after the House approved it the first time, but it reappeared after conference with Senate and House.

Some here at my agency will be happy to see the update in an upcoming FAC!

Any idea how long it will be before we can start using it again? I haven't noticed how long it take for a FAC to be issued.

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Public Law 112-239, Sec. 822 The simplified acquisition test program was extended until 2015:

SEC. 822. EXTENSION OF AUTHORITY FOR USE OF SIMPLIFIED ACQUISITION PROCEDURES FOR CERTAIN COMMERCIAL ITEMS.

(a) EXTENSION.—Effective as of January 1, 2012, section 4202 of the Clinger–Cohen Act of 1996 (division D of Public Law 104– 106; 110 Stat. 652; 10 U.S.C. 2304 note) is amended in subsection (e) by striking ‘‘2012’’ and inserting ‘‘2015’’.

(B) TECHNICAL AMENDMENT TO CROSS REFERENCES.—Subsection (e) of such Act is further amended by striking ‘‘section 303(g)(1) of the Federal Property and Administrative Services Act of 1949, and section 31(a) of the Office of Federal Procurement Policy Act, as amended by this section,’’ and inserting ‘‘section 3305(a) of title 41, United States Code, and section 1901(a) of title 41, United States Code,’’.

Why wait for a FAC? Use the statutory authority. Statute trumps regulation. Use it now.

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Our office learned about the reinstatement of 13.5 at 0630 this morning and we started using at 0800 :D . Happy new year everyone!

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To jad: What is your authority to start using the Test Program for Commercial Items? Don't get me wrong, my office has been anxiously awaiting this extension, but I have not seen a FAC that extends the test program to date.

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