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Don Mansfield

Federal Contracting Myths

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The way we have always done it is the right way to do it. Substitute just about anything for "it", including solicitations, contracts, DO's, etc.

I often have said that anyone who uses that logic is guilty of felony stupid, but perhaps that is a bit harsh.

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Guest Vern Edwards
Vern:

Got it - I guess I did misunderstand when I heard you say that during one of your talks. I read 1.601 and 1.602 again. Thank you.

Perhaps I should start a new thread concerning the second question I asked you. Or, if you want to email WE are interested to know. I think the only way to change the federal acquisition system is to get competent, passionate leaders who care about the subject, into the key positions, rather than political cronies. Yes We Can.

Matt,

What was the second question?

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Guest Vern Edwards
That 10% profit is fair and reasonable.

If a contractor doesn't ask for money when a change is made, it is not a change.

That contracting must always prepare the acquisition plan.

As the chief of a contracting office, I would insist that contracting always write the acquisition plan. He or she who writes the acquisition plan gets the first shot at steering the destiny of the acquisition. As a leader, I would want that power and influence. I wouldn't want to be just an implementer. Anybody can do that. I would want to be at the helm. I would want the power to say: This is that way that it ought to go. I'd be damned if I would cede that power and influence to anyone else.

When I was an intern, the interns in my program jumped at the chance to write the acquisition plan. It was considered to be a singular opportunity, especially on big procurements. You got to go to the meetings, to meet the bigwigs, to give presentations and be seen, to impress, and to lay the foundation for your professional future. Hell, I knew interns who wanted to write everything: the statement of work, the acquisition plan, the source selection plan, and the source selection decision document. I was one of them. We would put a block on the signature page: Prepared by: __________________________.

But don't listen to me. I only went from GS-05 to GM-15 in the minimum time allowed by law. Writing acquisition plans was one of the ways I did it.

To all you interns: Seize every opportunity to excel. That's how you get ahead. Turn that grungy acquisition plan into a masterpiece of acquisition planning. Show the bosses what you can do. BE the plan! Let everybody else cut and paste your work.

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As the chief of a contracting office, I would insist that contracting always write the acquisition plan. He or she who writes the acquisition plan gets the first shot at steering the destiny of the acquisition. As a leader, I would want that power and influence. I wouldn't want to be just an implementer. Anybody can do that. I would want to be at the helm. I would want the power to say: This is that way that it ought to go. I'd be damned if I would cede that power and influence to anyone else.

When I was an intern, the interns in my program jumped at the chance to write the acquisition plan. It was considered to be a singular opportunity, especially on big procurements. You got to go to the meetings, to meet the bigwigs, to give presentations and be seen, to impress, and to lay the foundation for your professional future. Hell, I knew interns who wanted to write everything: the statement of work, the acquisition plan, the source selection plan, and the source selection decision document. I was one of them. We would put a block on the signature page: Prepared by: __________________________.

But don't listen to me. I only went from GS-05 to GM-15 in the minimum time allowed by law. Writing acquisition plans was one of the ways I did it.

To all you interns: Seize every opportunity to excel. That's how you get ahead. Turn that grungy acquisition plan into a masterpiece of acquisition planning. Show the bosses what you can do. BE the plan! Let everybody else cut and paste your work.

Vern:

The question is whether or not you have been contacted or have the ambition to really change things by taking a post at OMB or as a CAO at an agency. Your comment about acquisition plans sums it up - you have walked in the shoes of GS-14 and GS-15 acquisition executives and could probably bring some much needed backbone...and to really demand a seat at the table and LEAD. Typically the debate that I've seen over acq planning comes down to the Program Manager, who is responsible for the acquisition plan, simply dumping the already decided acquisition strategy to the contracting dept. for output in MS Word format. That means it has nothing to do with shaping the destiny of the acquisition anymore, but is simply a typing assignment instead. If the Chief is not doing as you did - insisting that contracts takes a leadership role in acquisition planning, then it really doesn't matter what 1102s think about "This is the way that it ought to go."

That being said, I do think there are still some people out there who are like you and want to write everything: the statement of work, the acquisition plan, the source selection plan, and the source selection decision document. Hell, I'm one of those guys still (mostly SOWs). It makes technical specialists very upset when an 1102 seeks the helm and influences the process though.

I have yet to see someone like you, in a position of power in Government, who could affect real change in the acquisition arena and also establish a framework that allows young 1102s to lay the foundation for a professional future. You are always talking about taking pride in doing real work; something you can be proud of. I think you would be successful at really shaking up the status quo.

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Guest Vern Edwards
Vern:

The question is whether or not you have been contacted or have the ambition to really change things by taking a post at OMB or as a CAO at an agency. Your comment about acquisition plans sums it up - you have walked in the shoes of GS-14 and GS-15 acquisition executives and could probably bring some much needed backbone...and to really demand a seat at the table and LEAD. Typically the debate that I've seen over acq planning comes down to the Program Manager, who is responsible for the acquisition plan, simply dumping the already decided acquisition strategy to the contracting dept. for output in MS Word format. That means it has nothing to do with shaping the destiny of the acquisition anymore, but is simply a typing assignment instead. If the Chief is not doing as you did - insisting that contracts takes a leadership role in acquisition planning, then it really doesn't matter what 1102s think about "This is the way that it ought to go."

That being said, I do think there are still some people out there who are like you and want to write everything: the statement of work, the acquisition plan, the source selection plan, and the source selection decision document. Hell, I'm one of those guys still (mostly SOWs). It makes technical specialists very upset when an 1102 seeks the helm and influences the process though.

I have yet to see someone like you, in a position of power in Government, who could affect real change in the acquisition arena and also establish a framework that allows young 1102s to lay the foundation for a professional future. You are always talking about taking pride in doing real work; something you can be proud of. I think you would be successful at really shaking up the status quo.

Matt:

I have not been contacted and I do not wish to be contacted. I am temperamentally unsuited for a job within the bureaucracy. I am, among several other personal faults, much too impatient. In any case, there are not that many positions of real power in contracting. Administrator of OFPP ordinarily is not a powerful job unless you have the full and active backing of a reform-minded president, like Steve Kelman had with Clinton-Gore. Mr. Obama has said nothing that would lead me to believe that he understands or cares about the kinds of personnel-related changes that are needed to fix acquisition, and I could not care less about pursuing legislative procedural reforms like FASA and Clinger-Cohen.

What we need more than anything right now are changes in personnel policy. We need to hire fewer 1102s and more 1105s and 1106s. We need to raise hiring and promotion standards for 1102s. We need to develop a centrally-controlled, demanding, and stringent contracting officer appointment system. We also need to overhaul the government's training institutions--FAI and DAU. Longer term, we need to overhaul the FAR, its promulgation procedures, and its supporting bureaucracy. And we need a contracting think tank.

Thanks for the kind thoughts. But I would be a disaster in a presidential appointee job, and I have no interest in a civil service job. Teaching and writing is what I do best, and I'm going to stick to those endeavors.

Vern

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As the chief of a contracting office, I would insist that contracting always write the acquisition plan. He or she who writes the acquisition plan gets the first shot at steering the destiny of the acquisition. As a leader, I would want that power and influence. I wouldn't want to be just an implementer. Anybody can do that. I would want to be at the helm. I would want the power to say: This is that way that it ought to go. I'd be damned if I would cede that power and influence to anyone else.

When I was an intern, the interns in my program jumped at the chance to write the acquisition plan. It was considered to be a singular opportunity, especially on big procurements. You got to go to the meetings, to meet the bigwigs, to give presentations and be seen, to impress, and to lay the foundation for your professional future. Hell, I knew interns who wanted to write everything: the statement of work, the acquisition plan, the source selection plan, and the source selection decision document. I was one of them. We would put a block on the signature page: Prepared by: __________________________.

But don't listen to me. I only went from GS-05 to GM-15 in the minimum time allowed by law. Writing acquisition plans was one of the ways I did it.

To all you interns: Seize every opportunity to excel. That's how you get ahead. Turn that grungy acquisition plan into a masterpiece of acquisition planning. Show the bosses what you can do. BE the plan! Let everybody else cut and paste your work.

I could not agree with your more, Vern. I currently provide acquisition support to a major civilian agency and it is common practice here, in fact it is even expected, that the program office write the majority of the acquisition plan. I think it's a very strange practice. As my first supervisor told me, the acquisition plan tells the story of the procurement. Delegating the responsibility to write the acquisition plan to the program side, to me, is a complete abdication of one of the most significant pre-award duties of the contracting officer.

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In my organization, the Program Office is responsible for writing the Advanced Acquisition Plan, but the Contracting Officer approves the document. I usually re-write at least a portion of the AAP's I receive, and the same goes for the Statements of Work, and just about anything else that comes in from the Program Office.

I take responsibility for the whole process once the request is submitted, and carry that through to contract award. Post award is more difficult as we do not even see the invoices anymore when they are submitted or processed. I would like to change that, but I am not having much success in my field office, let along the organization as a whole. Right now the Program Offices have way too much control over post-award adminstration, which may be a function of our office beinging centralized and not where the actual work is occuring.

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The sad thing is most agencies have the program office write the acquisition plan. In some instances, it's because most the the 1102 workers aren't capable or experienced enough to do it by themselves. In other areas, agency policy says the acq plan is the program office's responsibility.

In fact, one of the largest agency (department) that has a history of poor contracting requires the program office to preapre the acp plan, the SOW/SOO, the evlauation/SSP, and market research report before the package even gets looked at by the CO. How can they ever get better if the most responsible person (the CO) isn't actively involved in the planning?

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Matt:

I have not been contacted and I do not wish to be contacted. I am temperamentally unsuited for a job within the bureaucracy. I am, among several other personal faults, much too impatient. In any case, there are not that many positions of real power in contracting. Administrator of OFPP ordinarily is not a powerful job unless you have the full and active backing of a reform-minded president, like Steve Kelman had with Clinton-Gore. Mr. Obama has said nothing that would lead me to believe that he understands or cares about the kinds of personnel-related changes that are needed to fix acquisition, and I could not care less about pursuing legislative procedural reforms like FASA and Clinger-Cohen.

What we need more than anything right now are changes in personnel policy. We need to hire fewer 1102s and more 1105s and 1106s. We need to raise hiring and promotion standards for 1102s. We need to develop a centrally-controlled, demanding, and stringent contracting officer appointment system. We also need to overhaul the government's training institutions--FAI and DAU. Longer term, we need to overhaul the FAR, its promulgation procedures, and its supporting bureaucracy. And we need a contracting think tank.

Thanks for the kind thoughts. But I would be a disaster in a presidential appointee job, and I have no interest in a civil service job. Teaching and writing is what I do best, and I'm going to stick to those endeavors.

Vern

Vern,

I appreciate your candid response...and totally understand your position. Hopefully there are some leaders like you who can work towards putting together the things you mentioned. Especially the think tank and personnel policy initiatives!! Wishing you all the best in the new year with your current endeavors.

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Stanretired,

I think that you can extend the delivery date without obtaining consideration, too. Here's something I wrote in another thread:

Lastly, a contracting officer is not necessarily required to obtain new consideration if he/she establishes a new delivery schedule. See Administration of Government Contracts, Fourth Edition, p. 965, quoting Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA P 11,332:

"It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do."

[italics added].

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Guest Vern Edwards
Stanretired,

I think that you can extend the delivery date without obtaining consideration, too. Here's something I wrote in another thread:

Lastly, a contracting officer is not necessarily required to obtain new consideration if he/she establishes a new delivery schedule. See Administration of Government Contracts, Fourth Edition, p. 965, quoting Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA P 11,332:

"It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do."

[italics added].

We need to sort this out. Cibinic, Nash, and Nagle were simply acknowledging that if the contractor refuses to give consideration for a time extension, the CO "apparently" can unilaterally establish a new delivery schedule. But that does not mean that the CO should pay the stipulated price for the late supplies or services. The CO should refuse to pay full price if the delay in delivery or performance is significant or if the government has suffered damages, and he or she should put the contractor on notice of the intention.

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Vern,

I read stanretired's post as implying that a CO could not (as in the CO does not have the authority) extend a delivery date without obtaining new consideration. I was simply pointing out that a CO does have that authority.

I agree with you as far as what a CO should do.

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Expired contracts cannot be extended.

Hugh or anyone else. I do not understand how expired contracts can be extended without creating a new contract and without considering competition. Please explain.

Best,

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A contractor must have a DCAA certified accounting system as a prerequisite to receiving a cost reimbursement contract.

Retreadfed, while what you typed is true, FAR 16.301-3 is crystal clear in requiring that, "The contractor?s accounting system is adequate for determining costs applicable to the contract."

I have worked at agencies (civilian) where cost contracts were awarded without any effort to ascertain whether or not an adequate accounting system exists (I would not have been surprised if those CO's did not even know that this requirement exists). In fact, every single contract type other than firm-fixed-price requires that the contracting officer consider the adequacy of a contractor's accounting system prior to awarding the contract (see FAR 16.104 (h)).

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Retreadfed, while what you typed is true, FAR 16.301-3 is crystal clear in requiring that, "The contractor?s accounting system is adequate for determining costs applicable to the contract."

I have worked at agencies (civilian) where cost contracts were awarded without any effort to ascertain whether or not an adequate accounting system exists (I would not have been surprised if those CO's did not even know that this requirement exists). In fact, every single contract type other than firm-fixed-price requires that the contracting officer consider the adequacy of a contractor's accounting system prior to awarding the contract (see FAR 16.104 (h)).

Civ, I presume Don's point in starting this discussion was to demonstrate the many points of ignorance (not stupidity) that exist in the procurement world. While not a "myth," you have identified another. I might add that what is an adequate accounting system can vary with the contract type involved and that one size does not fit all in this regard. For example, what is adequate for a T&M contract for commercial items would be quite different from an accounting system for a contractor performing a cost reimbursement contract subject to the CAS.

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3. Offerors with no record of past performance must be rated neutral.

Is the myth buster for this that you can simply not rate them at all on past performance i.e. past performance is a non-factor for them? This one confused me a bit.

I note that the OFFP site states (http://www.whitehouse.gov/omb/procurement/contract_perf/best_practice_re_past_perf.html):

"FASA also states that an offeror for which there is no information on past contract performance or with respect to which information on past contract performance is not available, may not be evaluated favorably or unfavorably on the factor of past contract performance."

For example, if you were point scoring and past performance was worth 10 points out of a total 110. Offeror A may get 89 out of 110 and Offeror B, who has no past performance information available, may get 89 out of a total of 100. Assuming price is equal, award would then go to offeror B?

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dgm,

Prior to the FAR Rewrite in 1997, FAR 15.608(a)(2)(iii) contained the following statement:

"Firms lacking relevant past performance history shall receive a neutral evaluation for past performance."

The FAR Council decided to change this wording in the FAR Rewrite based on some confusion as to what a neutral evaluation actually meant. Here's an excerpt from the Federal Register (62 FR 51224-01):

"(f) Neutral past performance evaluations. We considered alternatives relating to two aspects of neutral past performance ratings--

(1) Definition of neutral past performance evaluations. The proposed rules provided a definition of neutral past performance evaluations. Public comments recommended that we revise the definition and provide detailed instructions on how to apply neutral past performance ratings in any source selection. 41 U.S.C. 405(j)(2) requires offerors without a previous performance history, to be given a rating that neither rewards nor penalizes the offeror. We did not adopt the public comment recommendations, opting instead to revise the final rule to reflect the statutory language, so that the facts of the instant acquisition would be used in determining what rating scheme is appropriate. This alternative provides for flexible compliance to satisfy requirements of the statute."

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How about the myth that companies must offer their best/most-favored customer price to the Government?

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Don,

In reference to your post (#46) above. As a newbie I never read the "must be rated neutral" part of FAR 15.608. I thought the "neutral rating" resulted from 15.305(2)(iv).

"In the case of an offeror without a record of relevant past performance....the offeror may not be evaluated favorably or unfavorably on past performance."

To me neutral is the rating that is neither favorable nor unfavorable.

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Guest Vern Edwards
Don,

In reference to your post (#46) above. As a newbie I never read the "must be rated neutral" part of FAR 15.608. I thought the "neutral rating" resulted from 15.305(2)(iv).

"In the case of an offeror without a record of relevant past performance....the offeror may not be evaluated favorably or unfavorably on past performance."

To me neutral is the rating that is neither favorable nor unfavorable.

bremen:

Don was referring to an earlier version of FAR Part 15. Part 15 was rewritten in September 1997. The earlier version had used the "neutral" language.

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What about the myth that if you enter a five year ID/IQ contract as a small business than you keep that status until after the contract is over. Most people don?t realize the Clause 52.219-28 where you have to update your status if it changes, possibly disrupting the new interpretation of the ?rule of two?, if at least two of your contractors have Small Business status. We are in this situation now?

Any new info on policy decisions for the rule of two?

Steve

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