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j_dude77

Violation of Procedures

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I just wanted to post this scenario to see what others think.

A PM sends a contract template (nothing filled in, with may clauses that would not apply to the acquisition), stating that this is the standard terms and conditions for contracting with the government agency. The PM asked the contractor to review and let them know if they have any issues with the standard Ts&Cs.

PM was told not to send things like this to contractors before certain procedures had been followed. In this case this would be a sole-source procurement. No notice had been posted to FBO, no J&A approved, and no NF1787 had been approved.

Due to this being a sole source procurement, management states that it is ok to send this to a contractor before a notice has been posted to FBO, a J&A, and NF1787 approved.

I disagree. I feel this is the beginning of negotations.

See FAR 5.201, 6.303-1.

Our agancy regulation states:

The completed form (NF1787) shall be submitted and reviewed by the center small business specialist and SBA Procurement Center Representative (PCR) before synopsis in FEDBiz Ops in accordance with FAR 5.201. For those requirements that are exempted from synopsis in accordance with FAR 5.202 the coordination shall be submitted and reviewed prior to the release of the solicitation or offering of the requirement to the SBA under the 8(a) program.

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Guest Vern Edwards

I think that your organization is undisciplined, and I think that your management is to blame.

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Unfortunately Mr. Edwards, you have confirmed what I already knew. I like to call this Wild West contracting; where anything goes as long as it looks good.

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It's not like the PM gave them the statement of work and told them how much money was available for the job! Gee-whizz guys, you are strict!

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Guest Vern Edwards

A PM sends a contract template (nothing filled in, with may [sic] clauses that would not apply to the acquisition), stating that this is the standard terms and conditions for contracting with the government agency. The PM asked the contractor to review and let them know if they have any issues with the standard Ts&Cs.

* * *

Due to this being a sole source procurement, management states that it is ok to send this to a contractor before a notice has been posted to FBO, a J&A, and NF1787 approved.

Every official has his or her specialty and function. A PM's specialty and function is to manage programs. A CO's specialty and function is to negotiate, award, and administer contracts. Discussing prospective solicitation provisions and contract clauses with prospective contractors is a CO's function, not a PMs. The "myth-busting" memo notwithstanding, the PM's behavior in j_dude77's case was inappropriate, even if a notice had been posted to FBO and a J&A and NF1787 had been approved. It could lead to needless misunderstanding, confusion, conflict, and delay in the negotiation and award of a contract. It could permit a contractor to engage in divide and conquer negotiation tactics.

The obvious problem is that the PM might not know the appropriate provisions and clauses to include in the solicitation. Another problem is that this behavior is a sign of a lack of negotiating discipline. The PM is treading on CO functional turf and has obviously established a "backchannel" between himself and the contractor. Perhaps the PM is frustrated by a stodgy contracting process and is trying to move things along. When "management" says that this kind of thing is okay, it undermines the negotiation discipline necessary for effective sole source contracting.

But if management thinks it's okay and won't put the brakes on it, what can you do? Not much. Learn to live with it or find another job. There's really not much more to say.

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There are some agencies, including at least one in DOD, that place the responsibility for market research on the requiring activity.

If market research encompasses discussion of specs/ SOWs, why not of Ts and Cs?

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I think market research should be accomplished jointly when possible, but no one will ever have the resources to actually do that.

That notwithstanding, I don't think sending the Contractor your agencies Ts&Cs is market research.

You are asking for the Contractor's Ts&Cs if you are doing market research, not the other way around.

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Every official has his or her specialty and function. A PM's specialty and function is to manage programs. A CO's specialty and function is to negotiate, award, and administer contracts.

This is an interesting distinction, one with which I happen to agree. It seems to me (thought I might well be wrong) that DoD doesn't really make that distinction when it speaks about its "acquisition workforce". Sure, they are different "career fields," but does the training -- and, more importantly, the management -- of each field differ and focus on the unique needs and pain points of each? It doesn't seem that way to me. My perception is that is more of a "one size fits all" management approach.

But again I'm not a Federal government employee so my perception from afar might well be wrong.

Anybody else think a more distinct management approach might help each "career field" better flourish?

H2H

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Guest Vern Edwards

napolik:

There are some agencies, including at least one in DOD, that place the responsibility for market research on the requiring activity. If market research encompasses discussion of specs/ SOWs, why not of Ts and Cs?

The phrase "terms and conditions" ("Ts and Cs") encompasses almost everything in a contract. In my last post I said:

Discussing prospective solicitation provisions and contract clauses with prospective contractors is a CO's function, not a PMs.

Solicitation provisions and contract clauses are a subset of "terms and conditions." For the most part, they are prescribed by FAR and are non-negotiable. PMs may or may not know that. Contracting officers MUST know that, because FAR assigns to them the responsibility of complying with provision and clause prescriptions in order to ensure that the proper provisions and clauses are included in solicitations and contracts. See FAR 1.108(f).

PMs should be able to discuss SOWs, specs, and data items, which are Ts and Cs, when conducting market research, but should stick to what they know and are responsible for, which does not include provisions and clauses.

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I don't distinguish between paragraphs in a SOW or in solicitation provisions or contract clauses (e.g. FAR 52.212-1, 52-212-4, data rights or warranties) . I think market research covers both, particularly in areas involving commercial items.

Take a look at slide 20 here:

http://resources.ncmahq.org/chapters/middle_georgia/Education%20Corner/Education/NCMA%20MR%20Briefing(sep%2009-Mark%20Leslien).pdf

I change my earlier statement: "There are some agencies, including at least two in DOD, that place the responsibility for market research on the requiring activity."

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Guest Vern Edwards

I don't distinguish between paragraphs in a SOW or in solicitation provisions or contract clauses (e.g. FAR 52.212-1, 52-212-4, data rights or warranties) . I think market research covers both, particularly in areas involving commercial items.

Okay. I disagree that PMs should discuss provisions and clauses. I don' think it's their field.

Bye.

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With an exception, I do not agree that requiring activities should take the lead in conducting market research. The exception is major systems' acquisitions where the program office is laden with staff including "acquisition professionals".

The bulk of my experience has been in field contracting buying a wide range of supplies of services from hundreds of different customers. These field customers are not staffed to do market research. The contracting officer should be taking the lead. Unfortunately, an increasing number of contracting officers and offices are passing more and more elements of the contracting function to their customers.

This transfer gives the contracting professionals more time to play with automated procurement systems and FPDS.

V/r,

I. M Luddite

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well of course there needs to be a free flow of information between a requiring activity and their preferred vendor.

Who do you think is going to write the narrative for the sole source justification ?

It won't be the COTR.

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I'd ask my client politely not to do it again while also explaining that it is my job as a CO anyway, so the PM can lessen his or her own burden by letting me (the CO) take care of that sort of thing. It is discussed above, but there is lots of confusion among program staff as to roles and responsibilities. Some of that is self-inflicted as a lot of contracting "professionals" are happy to let someone else do their job.

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