Jump to content
The Wifcon Forums and Blogs

Recommended Posts

4 minutes ago, joel hoffman said:

But- does a subcontracting plan for an ID/IQ base or task order have to require the contractor to subcontract parts of the work?  Put differently , does the prime have to agree subcontract work on any and all task orders, if it can efficiently or more efficiently self perform all work itself on some types of tasks?    

No, unless it's specifically stated as a "requirement" of the sub-contractor plan 

Share this post


Link to post
Share on other sites

Even "requirements" of the subcontracting plan only require a good faith effort by the Contractor (based on the clause that governs it).  Part of assessing whether or not the prime makes a good faith effort to meet those goals or requirements of the subcontracting plan includes, but is not limited to, examining how efficiently or more effectively it (or others) can perform the work.  More broadly, the subcontracting plan stipulates the efforts that the prime will take in order to comply with the goals/requirements - assessing the good faith effort comes down to reviewing (a) if the prime is meeting the subcontracting goals/requirements and if not (b) reviewing whether or not the prime is following the commitments/efforts to pursue small businesses as subcontractors detailed in the approved plan.

Share this post


Link to post
Share on other sites
5 hours ago, Matthew Fleharty said:

 I know that Pepe has alleged that the good faith requirement is a low hurdle to jump, but I don't think that a Contractor could merely choose to self-perform any/all task orders and ignore the agreed to subcontracting plan.  It has teeth if agencies care about the subcontracting plan and proper contract administration.

Matthew Fleharty: No, it really does not have teeth. "Enforce the existing liquidated damages provisions of existing subcontracting plans" does not work how you imagine. It generally does not work at all.

Assume the contracting officer cares and makes the effort, which is a stretch to start.

Contracting officer: "Contractor, the plan said 20 percent but you only hit 5 percent. Give $2M [liquidated damages] back to the agency because that represents the percentage you failed to meet."

Program manager of contractor: "Things changed [detailed explanation]."

Contracting officer: "The fact remains that you missed by 15 percent, in dollar figures, $2M, which you owe in liquidated damages."

General counsel of contractor: "The test is good faith and we met it [detailed explanation, plus reference to the stated methods of soliciting subcontractors in the subcontracting plan]."

Contracting officer: "I don't buy it. This is why we have liquidated damages! Pay up!"

General counsel of contractor: "Do what you want, but remember that the standard is good faith. Good luck getting that $2M. We hope we can get to a friendly agreement, but if you pursue this matter, we will vigorously defend our rights, you will not get the liquidated damages, and you will lose time and money."

Matthew Fleharty, this is a problem (the liquidated damages provisions of subcontracting plans are toothless) that is an open secret. The same problems apply to the Comprehensive Subcontracting Plan, which also has liquidated damages, similar to Individual Subcontracting Plans. It is discussed by large contractors. It is discussed at the highest level of agencies. It is discussed by congress and staffers and lobbyists. Trust PepeTheFrog on this.

There is room for improving this situation, or solving this problem. But the solution is most assuredly not "Hold them to the subcontracting plan-- we already have liquidated damages provisions." Don't ask PepeTheFrog how PepeTheFrog knows this.

Share this post


Link to post
Share on other sites
36 minutes ago, PepeTheFrog said:

There is room for improving this situation, or solving this problem. But the solution is most assuredly not "Hold them to the subcontracting plan-- we already have liquidated damages provisions." Don't ask PepeTheFrog how PepeTheFrog knows this.

All I've heard are complaints - I've yet to see a valid alternative proposed.  I keep reading about this thing called a "requirement," but I still have no idea what that means, what authority a PCO has to do impose such a "requirement" (short of an approved deviation), and why that would be an overall desirable outcome for a contracting arrangement (let's remember that small business considerations are not the primary purpose for contracting...fulfilling the requirement/Government's need is).

Also, that straw man characterization of yours is not how I would pursue liquidated damages and ignores my previous remarks.

Share this post


Link to post
Share on other sites
6 hours ago, Matthew Fleharty said:

I've still yet to see/hear of an alternative that would impose these so called "requirements."  What are they and where does their authority stem from?

I believe the OP wants small business participation as a RFP technical factor and as a contract requirement --a promise-- that offerors will be held to.

Share this post


Link to post
Share on other sites
16 minutes ago, Matthew Fleharty said:
9 minutes ago, Jamaal Valentine said:

I believe the OP wants small business participation as a RFP technical factor and as a contract requirement --a promise-- that offerors will be held to.

On the dot. This is exactly what we're trying to achieve. I looked into a few of the FAR's posted in this thread, and some that I found. They look useful in putting together an argument for it so hopefully the government will hear us out.

Share this post


Link to post
Share on other sites
52 minutes ago, Matthew Fleharty said:

Also, that straw man characterization of yours is not how I would pursue liquidated damages and ignores my previous remarks.

Matthew Fleharty: PepeTheFrog is interested in possible solutions.

Would you explain how you would pursue liquidated damages related to a small business subcontracting plan?

Share this post


Link to post
Share on other sites
12 minutes ago, PepeTheFrog said:

Matthew Fleharty: PepeTheFrog is interested in possible solutions.

Would you explain how you would pursue liquidated damages related to a small business subcontracting plan?

Not by incessant whining that they didn't meet the goal % without any consideration of other factors which is what your scenario consists of.  If you'll refer to my previous post, the analysis of the good faith effort comes down to an examination of the subcontracting plan which includes actions that the prime commits to taking in achieving those small business goals.  If a prime fails to meet their goal a Contracting Officer should then review whether or not those actions stipulated in the subcontracting plan were taken to assess whether or not the prime actually made a good faith effort - the term may be nebulous in abstract, but it shouldn't be when there is an accompanying subcontracting plan.

Share this post


Link to post
Share on other sites

Those goalposts moved so fast, all PepeTheFrog saw was a blur! 

20 minutes ago, Matthew Fleharty said:

good faith effort - the term may be nebulous in abstract, but it shouldn't be when there is an accompanying subcontracting plan.

The problem is not that the term is nebulous, but that the standard is easily met, especially given common language found in subcontracting plans. This renders the liquidated damages toothless. The contractor made a good faith effort to find small business subcontractors in the stated networks, databases, etc pursuant to the subcontracting plan, but the contractor determined that it was appropriate to use other sources, including itself. Or, the contractor did not find any capable small businesses even after following the terms of the subcontracting plan. That is a good faith effort, is it not?

17 minutes ago, Matthew Fleharty said:

a Contracting Officer should then review whether or not those actions stipulated in the subcontracting plan were taken

What actions would you stipulate in the subcontracting plan?

Share this post


Link to post
Share on other sites
3 hours ago, JIR17 said:

No, unless it's specifically stated as a "requirement" of the sub-contractor plan 

Right.  All this talk of not meeting goals of the subcontracting plan.  There are no government defined goals for subtracting work vs self-performance. 

Without obtaining a deviation to the regulations or otherwise being able to impose a specific goal for the amount of work to subcontract in the solicitation,  I don't think that the government can impose a "requirement" to force a prime to subcontract work or to require that such goals be included in the subcontracting plan.  

The only DoD and other agency subcontracting goals that I found on-line were all based upon percentages of  work that is subcontracted.

EDIT. Okay, okay.  There could be a socioeconomic evaluation factor in a selection competition that might encourage a prime to subcontract rather than self-perform work. 

Share this post


Link to post
Share on other sites
24 minutes ago, PepeTheFrog said:

Those goalposts moved so fast, all PepeTheFrog saw was a blur! 

You're clearly hopping past posts then Pepe...refer to the one prior to your scenario and I stated " assessing the good faith effort comes down to reviewing (a) if the prime is meeting the subcontracting goals/requirements and if not (b) reviewing whether or not the prime is following the commitments/efforts to pursue small businesses as subcontractors detailed in the approved plan."  That seems to be consistent with my following post which states "the analysis of the good faith effort comes down to an examination of the subcontracting plan which includes actions that the prime commits to taking in achieving those small business goals.  If a prime fails to meet their goal a Contracting Officer should then review whether or not those actions stipulated in the subcontracting plan were taken to assess whether or not the prime actually made a good faith effort."

32 minutes ago, PepeTheFrog said:

What actions would you stipulate in the subcontracting plan?

There is no one right answer to this question.  As I'm sure you're aware, all requirements vary to some degree, but some broad examples could include:

  • Designate a company official to administer/monitor small business subcontracting
  • Specify procedures for consideration of subcontractors that maximize opportunities for small business participation
  • Maintenance of subcontractor selection records demonstrating compliance
  • Outreach or liaison efforts to seek small businesses

Depending on the requirement, the prime, and the small business opportunities potentially available (informed by market research) those requirements would be more specific (and should in order to enforce it properly when it comes to the "good faith effort" test).  For example, the prime could commit in the subcontracting plan to hosting annual or semi-annual outreach efforts for small businesses.  If a prime then chose not to or forgot to hold those outreach efforts and failed to meet their goals, one could make an argument that, based on the commitments in the subcontracting plan, the prime did not make a good faith effort.

1 hour ago, PepeTheFrog said:

The problem is not that the term is nebulous, but that the standard is easily met, especially given common language found in subcontracting plans.

Just because the plans are written poorly/nebulously and then approved by COs does not mean that they cannot be written with more appropriate specifics that then give the clauses teeth when it comes to the "good faith effort" standard.  Let's not forget, the overarching requirement is "maximum practicable opportunity to participate in contract performance consistent with its efficient performance" (FAR 19.702).

Share this post


Link to post
Share on other sites
5 hours ago, Matthew Fleharty said:

Depending on the requirement, the prime, and the small business opportunities potentially available (informed by market research) those requirements would be more specific (and should in order to enforce it properly when it comes to the "good faith effort" test).  For example, the prime could commit in the subcontracting plan to hosting annual or semi-annual outreach efforts for small businesses.  If a prime then chose not to or forgot to hold those outreach efforts and failed to meet their goals, one could make an argument that, based on the commitments in the subcontracting plan, the prime did not make a good faith effort.

Just because the plans are written poorly/nebulously and then approved by COs does not mean that they cannot be written with more appropriate specifics that then give the clauses teeth when it comes to the "good faith effort" standard.  Let's not forget, the overarching requirement is "maximum practicable opportunity to participate in contract performance consistent with its efficient performance" (FAR 19.702).

As somebody who has been hired to write initial SB plans for prime contractors, I have to say Mr. Fleharty seems to be missing some important observations that others have made.

1. Sure, the prime could commit to host a quarterly or monthly SB outreach effort, but there is no objective means of measuring how effective those efforts are. If the contractor simply puts a notice on its website, "Outreach opportunity on some date and time" that does nothing to ensure that the right small businesses show up--but it might be sufficient to prove a good faith effort. You can't use how many SBs actually show up as a measure of effectiveness because that is (to a very large extent) not in the prime's control. It would be like holding a CO responsible for failing to obtain competition after advertising in FedBizOpps.

2. What makes an SB plan "good" versus "window dressing" has very little to do with efforts to reach SBs. Everybody -- and I mean everybody -- knows to list the usual outreach efforts, the usual industry days, the websites of SB-focused groups. And primes do send people to the usual events! (And then charge the government for doing so.) The people show up and they have booths and they have swag to give away. They take names and business cards, and they hand out brochures about the company and the have detailed instructions as to how to get on the approved vendor list. And it's all for show -- unless the prime finds a SB it wants to do business with. And if the prime doesn't and it doesn't subcontract to any SBs, it can still point to its attendance as evidence of a good faith effort. (And to be clear: It was a good faith effort!)

3. What matters is the stuff nobody reads. The organizational roles and responsibilities, the policies and procedures, the incentives given to PMs if they subcontract to the right categories. The meat of the SB plan is not the external outreach efforts; the meat is how the contractor organizes itself to work toward the goals, how much budget and manpower it allocates to the efforts. If you can't clearly see who has the responsibility for SBLO on an org chart, then you can be confident the contractor is just going through the motions.

Anyway, PepeTheFrog is right. It's a trivial matter to show good faith efforts and there is no way I can think of to *make* a contractor work harder than it wants to in this area, short of making actual SB subcontracting amounts an evaluation factor in (a) award fee determinations, or (b) future source selection decisions.

Share this post


Link to post
Share on other sites
18 hours ago, joel hoffman said:

does a subcontracting plan for an ID/IQ base or task order have to require the contractor to subcontract parts of the work?

That's exactly what I mean by trying to get a "requirement" put in. Right now there is no requirement to submit a sub-contracting plan at the moment, which means there's no real accountability for the prime to subtract work on any task orders. You can't just rely on FAR to back you up, because not every FAR applies to every contract. The agency just has a goal of including X amount of small business on the project, and this specific agency hasn't seemed to really emphasize any importance of hitting it in the past.

Share this post


Link to post
Share on other sites
2 hours ago, JIR17 said:

That's exactly what I mean by trying to get a "requirement" put in. Right now there is no requirement to submit a sub-contracting plan at the moment, which means there's no real accountability for the prime to subtract work on any task orders. You can't just rely on FAR to back you up, because not every FAR applies to every contract. The agency just has a goal of including X amount of small business on the project, and this specific agency hasn't seemed to really emphasize any importance of hitting it in the past.

If a large business is awarded an ID/IQ contract, it would have to submit a subcontracting before award (19.702) which the government is supposed to review, negotiate if necessary and approve.  Small business primes do not have to submit a subcontracting plan. 

Even with a subcontracting plan, as I've repeatedly said, there is no requirement to sub any work, unless the organization goes beyond the FAR to somehow require a prime to sub ontract work.  One way to attempt to do that is to evaluate the extent of subcontracting that contractor would commit to ,  tying that into how it will commit to use or team with SB subs. Even then, that wouldn't guarantee work for your firm.  The best opportunity might be gained through a teaming agreement with a prime, where the solicitation also encourages and incentivizes such agreements, incorporates the proposed relationship into the contract, and then evaluates conformance e and performance. 

From my experience, it would be a pipe dream to expect all of that to work for government contracting, given the general level of competence that I've observed in more than one agency and through participation in this forum from its inception.  Look at the low numbers of WIFCON "members" who are even actively participating in the various forum discussions.  Effective contract administration by the government that goes deeper than technical conformance of the productor service isn't anything that I would risk betting on, especially for service contracts and particularly for anything out of the ordinary or beyond the minimum requirements. 

When the very top contracting leadership in a major organization doesn't even know what a "betterment" is (a specific proposal feature that both meets and exceeds the minimum solicitation requirement and is incorporated into the resulting contract) and how it fits in the order of precedence, even when plainly defined in the contract, you know you are in for trouble. 

 

Share this post


Link to post
Share on other sites

H2H,

You seem to be putting a lot of words into my mouth.  At no point did I advocate holding the prime responsible for the number of attendees or imposing a "requirement" (still have no idea what this would mean) beyond the good faith effort standard.  What I took exception to were Pepe's remarks that the good faith effort was completely nebulous - I'll grant it can be, if the subcontracting plan is written poorly/broadly and contract administration is poor; however, the good faith effort standard can be made less nebulous by including specific standards and/or actions for the prime to take that are consistent with the FAR requirement to provide maximum practicable opportunity to participate in contract performance consistent with its efficient performance.  How is that missing the mark?  I'm trying to provide advice on how to make the current FAR construct/requirements work better rather than throwing up my hands (as it seems many would do in this case) and accepting that this is a completely futile situation...maybe I'm misguided in trying, but I'd rather try and fail than do otherwise.

Share this post


Link to post
Share on other sites
2 hours ago, JIR17 said:

That's exactly what I mean by trying to get a "requirement" put in. Right now there is no requirement to submit a sub-contracting plan at the moment, which means there's no real accountability for the prime to subtract work on any task orders.

What does this even mean?  The FAR has specific requirements for when a subcontracting plan is required and when it isn't.  Are you advocating that in situations where a subcontracting plan is not required by FAR 19.702 there should be?  Do you even know if the clauses I provided you previously are in the subject contract you're concerned with?

 

2 hours ago, JIR17 said:

You can't just rely on FAR to back you up, because not every FAR applies to every contract.

What does this mean?

Share this post


Link to post
Share on other sites

Correct me if i'm wrong, but when a contracting officer takes a contract, they go down the list of FAR's and omit pieces that are irrelevant to the contract. For example, if a small business is the prime, the FAR that is requiring a sub-contracting plan, is no longer relevant. 

Share this post


Link to post
Share on other sites
29 minutes ago, joel hoffman said:

The best opportunity might be gained through a teaming agreement with a prime, where the solicitation also encourages and incentivizes such agreements, incorporates the proposed relationship into the contract, and then evaluates conformance e and performance. 

This is great advice. Thank you! 

Share this post


Link to post
Share on other sites
7 minutes ago, JIR17 said:

This is great advice. Thank you! 

Remember also that I think such is a pipe dream, and considering your opinion of the agency.

Share this post


Link to post
Share on other sites
9 minutes ago, JIR17 said:

Correct me if i'm wrong, but when a contracting officer takes a contract, they go down the list of FAR's and omit pieces that are irrelevant to the contract. For example, if a small business is the prime, the FAR that is requiring a sub-contracting plan, is no longer relevant. 

The contract is governed by the terms and conditions which includes the FAR clauses, but Contracting Officers have a responsibility/requirement to ensure "all requirements of law, executive orders, regulations, and all other applicable procedures...have been met" (FAR 1.602-1(a)).  In other words, a CO does not get to cherry pick the statutory and FAR requirements as they see fit - but clauses that are not applicable or required are not included.  In the example you mention, the FAR does not require a subcontracting plan for small business concerns (see FAR 19.702(b)(1)) so the resulting clauses are not required - why would they need to be? 

Share this post


Link to post
Share on other sites
37 minutes ago, Matthew Fleharty said:

H2H,

You seem to be putting a lot of words into my mouth.  At no point did I advocate holding the prime responsible for the number of attendees or imposing a "requirement" (still have no idea what this would mean) beyond the good faith effort standard.  What I took exception to were Pepe's remarks that the good faith effort was completely nebulous - I'll grant it can be, if the subcontracting plan is written poorly/broadly and contract administration is poor; however, the good faith effort standard can be made less nebulous by including specific standards and/or actions for the prime to take that are consistent with the FAR requirement to provide maximum practicable opportunity to participate in contract performance consistent with its efficient performance.  How is that missing the mark?  I'm trying to provide advice on how to make the current FAR construct/requirements work better rather than throwing up my hands (as it seems many would do in this case) and accepting that this is a completely futile situation...maybe I'm misguided in trying, but I'd rather try and fail than do otherwise.

Nope. Here's your quote:

For example, the prime could commit in the subcontracting plan to hosting annual or semi-annual outreach efforts for small businesses.  If a prime then chose not to or forgot to hold those outreach efforts and failed to meet their goals, one could make an argument that, based on the commitments in the subcontracting plan, the prime did not make a good faith effort.

I was explaining why that would accomplish nothing. Which others, including PepeTheFrog, have also tried to explain to you.Then I tried to explain how a CO might actually evaluate the expected efficacy of a contractor's SB plan (which almost none of them actually do; instead, they run a checklist to see if the plan has all the required elements and then file it). And then I suggested two concrete ways of holding a contractor accountable.

I'm not here for an argument, and I'm not saying the SB contracting plans are a waste of paper. But you seem to be arguing for the sake of arguing. That doesn't interest me.

Share this post


Link to post
Share on other sites

I'm not here for one either H2H (which is why I've also tried to propose ways to make the current construct work better), but that quote of mine that you reposted is not synonymous with your scenario in point 1.  Read the two one after another...my example deals with them outright not holding the events - yours takes issue with the number of attendees (a point I didn't bring up). 

You and I are on the same page with respect to your comments in paragraph 3 - (see my first and second bullet).  We've even both stated that to encourage proactive behavior by the prime, one should consider the use of incentives.  So if you want to characterize me as missing the issues, go ahead, but I think our positions are more closely aligned that you're indicating.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×