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For those who are interested, here is the specific language I had in mind when I referenced this section as possibly being of interest in answering ji's problem " Where the prime contractor has been directed by the Government to use any specific source for parts, supplies, components subassemblies or services, the costs associated with those purchases will be considered as part of the cost of materials, not subcontracting costs."

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Thanks, retreadfed, for the pointer to the old language -- yes, that it exactly what I was thinking.

Thanks, Vern, for the pointer to the old CFR text page -- I added that to my bookmarks.

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  • 4 months later...

This thread includes many great solutions to a problem complying with FAR 52.219-14, including the use of regulatory history @Retreadfed, use of the available 13 CFR 125.6 (b) "Mixed contracts" regulatory examples @C Culham, use of a special clause/deviation @Don Mansfieldand @joel hoffman, use of partial set-asides @Constricting Officer, and use of separate line items' applicabilities @Vern Edwards.

There are so, so many interpretations and loopholes to be found in Limitation on Subcontracting clause's implementation, that I was surprised in my research this year to not find one contract that set it straight within its four corners!  Now that FAR Case No 2016-011 went to Final Rule and was added to the FAR via Federal Acquisition Circular 2021-07, and both DPAP and the CAAC have issued a Class Deviation to correct it (see Final Rule comments 12A thru 12D), the calculation is simplified, less intrusive on a SB, and, in a word, practicable (everyone's favorite word).

So, since it's no longer an impossible task, I propose COs award contracts and orders that straighten out the remaining rough edges and set forth both 1. The way to calculate compliance under the contract, and 2. The way the CO will measure compliance during performance of the contract.  I work primarily with services, so I will address them only here (supply and construction will differ at b) below).

1. I propose COs require calculation of the awardee's self-performed work as follows: 

   a) Enter amount to be paid by the Government here: $_____________

   b) Subtract from line a the amount to be paid by the Contractor to subcontractors. Do not subtract the amount proposed to be paid to subcontractors in order to meet PWS requirement C.xxx [CO to fill-in known PWS section requiring service where it is both not the principal purpose of the acquisition and small business concerns do not provide the service]. Do not subtract the amount proposed to be paid by the Contractor to a "similarly situated entity", as defined in clause FAR 52.219-14 of this contract. Enter the resulting difference here: $_____________

   c) Contractor’s estimated percentage of self-performed work (b/a X 100 = c%) ________%

2. I propose simple review of invoices (thank you Final Rule!) to measure compliance, but COs need to tailor their Section G invoice instruction clauses to enable this review at the end of the POP.  Maybe in your RFP you also solicit how much dollars they plan to put in each of 1.a and 1.b above, so you're not setting them up for failure at the outset, and so there's a meeting of the minds on this new rule's implementation.  Don't just rely on course of performance interpretations with a new rule.

Does anyone have a better way of writing the calculation I did at 1., or perhaps a different understanding of the calculation?  If your NAICS is 562910 or you are awarding for work OCONUS, you can just name that work by using the Class Deviation clause language. If your PWS is not set up to allow 1.b) fill-in then you can cite the service itself I guess.  Just don't leave room for interpretation - it's your contract after all.

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19 hours ago, WifWaf said:

1. I propose COs require calculation of the awardee's self-performed work as follows: 

I have read and re-read your example and I wonder if it addresses this portion of the clause (deviation) with regard to services -"Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 50 percent subcontract amount that cannot be exceeded." 

My simple calculation to illustrate my wonderment.  In this example all dollars relate to principle purpose.- 

Contract award is for $1,000 to the SB (Prime)

Prime subs $500 to LB (not similarly situated) and subs $250 to similarly situated entity.  All good at this point.

The similarly situated sub then subs $200 to a LB (not similarly situated).  Not good now as the subcontracted amount to not similarly situated entities is $700.

 

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I have nothing to contribute to the substance of this thread, but I do have some facts that might interest you all.

In the 1984 Code of Federal Regulations, in the paperback edition published by the Government Printing Office, Title 48, the FAR, Part 19, occupied pages 253 - 283.

In the 2020 Code of Federal Regulations, in the paperback edition, same format as in 1984, Title 48, Part 19, occupied pages 428 - 501.

Count the pages. Calculate the average growth per year.

This happened during the terms of both Democrat and Republican presidents and Congresses.

We work in a utopia of rules. I find this very discouraging.

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Another fact: Searching the Federal Register, I found 144 entries published between 1983 and today that involved rules about limitations on small business subcontracting.

Think of the time and effort that went into preparing, staffing, and coordinating 144 Fed Reg entries.

Think of all the time spent quibbling about wording, interpretation, and application.

Ponder how many breaches of 52.219-14, intentional and unintentional, have gone undetected. Think how much time and effort would have to be spent to prevent, detect, and  remedy such breaches.

In the movies, communist bureaucrats are often portrayed as tedious apparatchiks. (See, "Ninotchka.") But when it comes to being apparatchiks, no one tops us. 

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7 hours ago, C Culham said:

I wonder if it addresses this portion of the clause (deviation) with regard to services -"Any work that a similarly situated entity further subcontracts will count towards the prime contractor’s 50 percent subcontract amount that cannot be exceeded."

You're right to question that.  From the Final Rule:

Quote

FAR 52.219-14

...

(b) Definition. Similarly situated entity, as used in this clause, means a first-tier subcontractor, including an independent contractor, that—

(1) Has the same small business program status as that which qualified the prime contractor for the award (e.g., for a small business set-aside contract, any small business concern, without regard to its socioeconomic status); and

(2) Is considered small for the size standard under the North American Industry Classification System (NAICS) code the prime contractor assigned to the subcontract.

I think we leave the calculation above as-is for use in the RFP.

But I think the invoice instructions would have to go into those weeds, and elicit what happened after the the Contractor proposed to pay so-and-so SB.  Let's try this calculation again, adjusted for Section G.  You would need to specifically require this in the final invoice of the Base and each Option period (if enforcing at the TO level), or at the end of each ordering period (if enforcing at the Indefinite Delivery vehicle level).  (Note you have the option to choose which way you want to enforce compliance where the clause is prescribed in FAR 19.507(e)(1).  You fill in one of the two methods in the clause itself.)

   a) Enter amount that was paid by the Government here: $_____________

   b) Subtract from line a the amount paid by the Contractor to subcontractors. Do not subtract the amount paid to subcontractors in order to meet PWS requirement C.xxx [CO to fill-in known PWS section requiring service where it is both not the principal purpose of the acquisition and small business concerns do not provide the service]. Do not subtract the amount paid by the Contractor to a "similarly situated entity", as defined in clause FAR 52.219-14 of this contract, UNLESS the similarly situated entity further subcontracted to an entity that does not meet this contract definition. Enter the resulting difference here: $_____________

   c) Contractor’s estimated percentage of self-performed work (b/a X 100 = c%) ________%

Trying not to overcomplicate (again).  I think it's still practicable.

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16 hours ago, WifWaf said:

I think we leave the calculation above as-is for use in the RFP

With the above clarification I really do wonder about giving this instruction/advice/calculation format in the RFP. 

The subcontracting limitation clause, in my words, is a representation made by the contractor they will meet the performance standard on limitation at proposal submission and execution of contract.   In making such a representation the contractor should be left to their own devices, pursuant to the clause, as to how they made their determination of compliance.  If the government tells them how to they are taking on a responsibility in my view that is not appropriate.

The tentacles of application of the limitation clause reach far and wide.   Agencies themselves questioning a firms size based on the limitation clause, other firms also questioning, GAO protests, SBA OHA appeals and even DOJ False Claims Act cases ( https://gtpac.org/2019/08/29/doj-cracks-down-on-set-aside-contracting-fraud/)   How often, how many, I really do not know.   In the end no matter who questions the limitation matter the one that does question will be compelled to prove their position with a preponderance of evidence.  In doing so the specific facts of the contract, how it is priced and how such pricing assists in evaluating the limitation matter will play a big role along with what the contractor is actually doing. 

And then there is 13 CFR 125.6 that carries with it its own examples of calculation.

I know my thoughts are not refined for this post but quickly stated they all lead me to think that  in the scheme of things putting a calculation method as created by the agency and placing it in the RFP does not make sense to me.

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Fascinating discussion (to me) because I'm always interested in whether or not a contractor can escape liability under the False Claims Act by claiming it was making a reasonable interpretation of an ambiguous regulation or other requirement when it prepared and submitted its invoices. This discussion seems to support the notion that the rule is, if not patently ambiguous, at least so dense as to require an expert (probably a top-notch government contracts attorney) to help the contractor chart a compliant course.

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@C CulhamThat's more refined than you know.

I think you're right, the USG doesn't solicit the actual calculation, because it is a certification to be examined during responsibility determination, not something for proposal evaluation.  After all:

Quote

(e) Limitations on subcontracting. By submission of an offer and execution of a contract, the Contractor agrees that in performance of a contract assigned a North American Industry Classification System (NAICS) code for -

(1) Services (except construction), it will not pay more than 50 percent of the amount paid by the Government for contract performance to subcontractors that are not similarly situated entities...

Emphasis added.  In that case, the applied calculation must not be solicited.  Oops - 13 CFR 125.6(d)(2) even explicitly calls it an "element of responsibility".

Furthermore, why am I even attempting to enforce this compliance during performance?  I just read 13 CFR 125.6 and FAR Subpart 19.5, and I drilled down through the Service-Branch regs, all without finding a single imperative CO Responsibility to determine LOS compliance.  All I found is "Contracting officers may, at their discretion, require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during performance and upon completion of a contract" (13 CFR 125.6(e)(4)).  If that is the case, I suppose the weeds of this calculation are best left to post-award orientation conference banter, if they even come up at all between CO and and awardee.  Fine by me - I don't need more work to do. Someone tell DPAP and the CAAC if they need COs to do anything here, they have another class deviation to write.  Criminy, @Vern Edwards, the time we've wasted on this! 😂 

There are 154 "Contracting Officer shall" statements in FAR Part 19, but none apply here.  I'm frustrated, but not surprised.  If anyone so chooses to take up the SBA on that "CO may" duty, try using the above calculation, and let us know how it goes.

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7 minutes ago, WifWaf said:

Furthermore, why am I even attempting to enforce this compliance during performance?  I just read 13 CFR 125.6 and FAR Subpart 19.5, and I drilled down through the Service-Branch regs, all without finding a single imperative CO Responsibility to determine LOS compliance.  All I found is "Contracting officers may, at their discretion, require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during performance and upon completion of a contract" (13 CFR 125.6(e)(4)).  If that is the case, I suppose the weeds of this calculation are best left to post-award orientation conference banter, if they even come up at all between CO and and awardee.  Fine by me - I don't need more work to do. Someone tell DPAP and the CAAC if they need COs to do anything here, they have another class deviation to write.  Criminy, @Vern Edwards, the time we've wasted on this! 😂 

There are 154 "Contracting Officer shall" statements in FAR Part 19, but none apply here.  I'm frustrated, but not surprised.  If anyone so chooses to take up the SBA on that "CO may" duty, try using the above calculation, and let us know how it goes.

@WifWafBrace yourself. You may soon be hearing from Carl Culham about your duty to proactively enforce the clause.

As for me, I wouldn't spend even one minute enforcing the clause unless compelled to do so by some higher power. 🙄

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6 hours ago, WifWaf said:

@C CulhamThat's more refined that you know.

I think you're right, the USG doesn't solicit the actual calculation, because it is a certification to be examined during responsibility determination, not something for proposal evaluation.  After all:

Emphasis added.  In that case, the applied calculation must not be solicited.  Oops - 13 CFR 125.6(d)(2) even explicitly calls it an, "[E]lement of responsibility."

Furthermore, why am I even attempting to enforce this compliance during performance?  I just read 13 CFR 125.6 and FAR Subpart 19.5, and I drilled down through the Service-Branch regs, all without finding a single imperative CO Responsibility to determine LOS compliance.  All I found is "Contracting officers may, at their discretion, require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during performance and upon completion of a contract" (13 CFR 125.6(e)(4)).  If that is the case, I suppose the weeds of this calculation are best left to post-award orientation conference banter, if they even come up at all between CO and and awardee.  Fine by me - I don't need more work to do. Someone tell DPAP and the CAAC if they need COs to do anything here, they have another class deviation to write.  Criminy, @Vern Edwards, the time we've wasted on this! 😂 

There are 154 "Contracting Officer shall" statements in FAR Part 19, but none apply here.  I'm frustrated, but not surprised.  If anyone so chooses to take up the SBA on that "CO may" duty, try using the above calculation, and let us know how it goes.WifWaf, back in the 1990’s, we had pretty straightforward forms that we included in every construction and design-build construction source selection RFP or sole source negotiated RFP to determine intended compliance with the self-performed work or limitations on subcontracting requirements.

We were ignorant of the distinction between a “matter of responsibility” and a “matter of responsiveness” to the contract requirements”. What we did know was that there were frequent examples of primes who were fronts for subs, primes who took advantage of their small or small/disadvantaged business status, contractors who couldn’t obtain award of prime contracts for various reasons or because it was reserved for small or small disadvantaged business, etc.  

One form was for unrestricted solicitations (52.236-1 Performance of Work by the Contractor) and the other was for sole source or set-asides for small business, 8(a), etc.(52.219-14 Limitations on Subcontracting).

In working with SBA Regional Office in Atlanta, we defined what was self-performed work for purposes of the -14 clause and included that in the form. We included the various lines for the contractor to fill in to determine intended compliance. After all,  the clause clearly says “(e) Limitations on subcontracting. By submission of an offer and execution of a contract, the Contractor agrees that in performance of a contract…”

Since they were “agreeing” or would have to “agree”, what did they have to complain about?  They should know at the time of proposal submission how they intended to meet the self-performance requirements.  Since we provided pretty straightforward explanation and description, there wasn’t much room for doubt or ambiguity to argue about later. And we required the prime to provide direct management and supervision of the job (consistent with the SBA regulations and requirements).

For source selections, it was a go/no-go factor.

For sole source, it was simply a requirement to include in their proposal. We never got any complaints. Those competing for set-aside construction contracts or selected for sole source construction were in a privileged class for those competitions. Congress decided that those having the opportunity to participate in a restricted competition or sole source environment must self-perform at least a certain portion of the contract work. And Congress specifically agreed that simply buying the materials for someone else to install/perform the work won’t be allowed to count as self-performed work.

Similarly, for unrestricted source selection competitions, we defined what was and examples of what wasn’t self-performed work, “on-site”,  with its own organization ” and provided the lines to fill in. Again, buying materials for subs to install/perform work wasn’t self-performed work. It was also a go/no-go factor.

Essentially, this clause was designed to prevent a contractor from obtaining and performing a contract in name only, without providing any added value (e.g., brokering or acting as a front for other firms).  It precludes a contractor from reaping the profits and credit for the work when in actuality the subcontractors perform the entire job.* FAR 36.501(a) states, in part,     “To assure adequate interest in and supervision of all work involved in larger projects, the contractor shall be required to perform a significant part of the contract work with its own forces.”

*See:https://publiccontractinginstitute.com/far-52-236-1-performance-of-work-by-the-contractor-a-hard-clause-for-oconus-construction-contractors/ 

In the 90 or so source selections and 60 or so sole source negotiated contracts while I was with the Mobile District USACE, we never had a problem, complaint or a protest from a proposer- even when we occasionally eliminated one or more proposers that didn’t or couldn’t meet the stated requirements.

If I was still in the source selection business, I’d figure out a way to get or consider the information at the responsibility determination stage of the acquisition. But that would be a much more inefficient way to try to meet the intent of the clauses. You go through the SS only to find that the apparently successful offeror doesn’t  intend to or can’t meet the requirement. Stupid, in my ignorant opinion.

There shouldn’t be any legal problem with sole source negotiated acquisitions in requiring the proposer to show how they intend to meet the -14 limitation. Go for it! 

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8 hours ago, C Culham said:

It seems I am not the only one that beats the dead horse!

I was very proactive about it. Our USACE District was spending millions of dollars each year on military and civil works construction projects that were set aside or reserved for small disadvantaged businesses. I was the chief of the District office that negotiated all sole source construction acquisitions and conducted all construction and design-build source selections, among other major Contract Admin duties from late 1989-early 1997.

It was not uncommon to see various attempts by large businesses and small, non-SDB owned business companies to “capitalize” on these otherwise restricted business opportunities.

We saw all sorts of schemes to make it look like the primary entity was actually going to manage the contract or self-perform the required share of the work.

Examples included, “loaning” the key management and/or Supts./foremen personnel or trade labor operators to the primary party; CTA or JV agreements that gave the sub final say  in case of disagreement or gave it final approval authorities; providing the equipment and operators to perform the primary entity’s share of the work; providing the project controls personnel and/or handling payroll duties; providing the key personnels’ health insurance, retirement and other fringe benefits;  “locating” the project management oversight team in the sub’s home office, etc.

Once, about 25 years ago,  we couldn’t come to anywhere near a reasonable sole source (8(a) I think) negotiated price for a highway overpass project in Tupelo, MS. We cancelled the solicitation and re-advertised under full and open competition. I don’t remember whether the follow-on was an IFB or RFP.

During the advertising period, I received a call from the originally proposed primary excavation and paving sub from Columbus, MS., which was planning to bid the job as the prime. The guy asked me if I was “still interested” in the job, bidding as a sub on their “new team”.

You could probably imagine the shock and embarrassment when I informed him that I was the chief of the government’s  negotiation team on the original solicitation. After a few stutters, hems and haws, he quickly excused himself and hung up.

At any rate, we awarded the project for almost half of the originally proposed price,  within the budget and IGE.

The project was successful. 

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1 hour ago, joel hoffman said:

I was very proactive about it.

My dead horse analogy was not intended to address your comments but the fact that Vern Edwards enjoys stalking my posts and relating sharp innuendo with regard to my positions on other matters discussed in Forum.   Now I can not be sure but Vern's comment was a specific reference to the SCA thread of sometime ago and if so  let the shoe fit and if not...oh well my cryptic comment missed the point.   I guess I am not as good as Vern at being cynical  to an individual's expressed position that is steeped in reasonable conclusions does not fit his own ideals.  

With regard to your most recent posts Joel I agree in general.  Specifically with my 15 years at SBA I was involved with dozens of efforts regarding the limitation clause most with the 8(a) program but many not.  Why is exactly as you point out to ensure that small businesses are not just fronts.  Some CO's may care about such matters and some may not as in the scheme of things there are lots of clauses in contracts that many CO's do not give a darn about.  I would offer that their carefree attitude in part is a matter related to those that express no need to enforce such clauses as they personally think they do not matter for some reason or another.  In this case a clause I might add that is based on statute (at Section 46 of the Small Business Act).

As it goes an expression of not enforcing a regulatory clause based on statute is our culture.   Such things happen every day where people ignore such things as a speed limit.  No big deal right until that ignoring directly relates to them.  Think about it, who cares about the limitation unless you happen to be the small business whose livelihood depends on winning contracts set-aside and you sit back and watch companies that are not eligible win the contracts all the time, encouraged by COs' that by their very word or actions say they are not wasting their time in enforcing the limitation.    Discouraging at the least and at the very most a sad representation of the undermining culture we live in today.  Sad, very sad.   

With regard to the OP I applaud the effort to figure out an easier way to "enforce" the limitation clause.  However through experience I do not believe you can dumb it down and have to take effort on each contract as like most things in contracting "it depends" on the actual facts of the matter.   

Holding the limitation clause up as the epidemy of why the FAR is not perfect in and of itself is a waste of time.   Applying a personal enforcement standard in my view goes against the very tenants of the FAR guiding principles and specific to this discussion while one can not find "a CO shall" one also can not find in the FAR where it says that where the limitation matter is a specific strategy, practice, policy or procedure provided for in the FAR that is based on statute that the the CO has full digression to ignore it.   

 

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@C Culham@joel hoffmanWhen Joel was doing whatever it was he was doing to enforce limitations on subcontracting back in 1989-1997, we weren't obligating one-half trillion dollars each year on contract actions. We hadn't yet felt the full effect of President Clinton's decimation of the civilian acquisition workforce in his pursuit of a government that works better and costs less. We hadn't suffered 9-11 and felt the impact on acquisition. There was no Department of Homeland Security. We weren't acquiring supplies and services in support of two wars, anti-terrorist operations at home and all over the world, and massive IT expansion. We weren't in a pandemic. We weren't processing the numbers of contract actions that we are today. The FAR was not 1,992 pages long. The DFARS was not 1,300+ pages long.

The new 13 CFR 125.6 and FAR 52.219-14 are almost indecipherable. I have read them several times, and I still can't say that I understand it fully. ME!  It was written by incompetent semi-literate people. Acquisition today is more complex than it has ever been, and much of today's workforce is inexperienced, poorly-trained, short-handed, and overburdened.

I say to hell with "proactive" enforcement on limitations on subcontracting. If someone  complains or presents a set of facts suggesting that a contractor is breaching its contract, and if there is time to investigate, then go to it. Otherwise, keep your eyes on the prize, which is getting what our government needs, when it needs it, where it needs it, at a fair and reasonable price.

Remember the movie "Patton"? Remember the scene in Sicily where some GI's held up a column while they tried to move two mules off a bridge, resulting in the column getting strafed by enemy aircraft? Remember what Patton did? (July 22, 1943) Well, I say we need more Pattons in acquisition.

The mission is to acquire what our country needs, when and where we need it, at a fair and reasonable price, all at the speed of relevance. I'm an ex-paratrooper, and I say, advance toward the sound of the guns, even if you're all alone on a dark drop zone. Mission. Mission. Mission. Everything else is just a distraction. When Congress gives us what we need to do what they want done, better training and more people, we'll pay more attention to the distractions. That's MY personal enforcement standard.

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3 minutes ago, Vern Edwards said:

When Joel

And there you have it the new prescription for 52.219-14, put it in a contract but ignore it and not enforce it unless of course you figure out it was a front after the fact!   Me thinks that is exactly the thinking that makes a great legislator as from my single chair it seems the whole dang FAR is based on such thinking that created the law (and yes I mean statute, case law and executive order) that is saddled with today.  Knee jerk reaction to stuff that should have never happened in the first place.

Yep our bureaucracy is alive by such thinking!

 

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I began my civil service career in a culture of low bid, IFB culture where the contracting personnel and the design project managers were strictly rated on making awards, not on the quality of the design or the contract or whoever they awarded to. So shzt was produced.  ShZt went out the door. Dirt bag contractors continued to get awards. The slogan was “Construction (ACO’s and contract administrators) will fix it. Separate PM for construction. Change Orders, REA’s, Claims, delays, time extensions LD’s out the Wazoo. Civil Works projects were the exception to the rule because of the safety impacts of poor design or construction and we were our customer.

Then we went to where the PCO function was transferred from the Military to the 1102 Civilians and the consecutive PM arrangement was replaced by a life cycle PM, who along with Contracting were now responsible for the consequences of crappy designs and upset customers and were involved during contract execution.

We moved from IFB’s to competitive negotiations and best value. Oh - and the field finally realized that the performance ratings were more meaningful, instead of being ignored, so more effort was put into them.

By the way, Congress established the requirements for contractors to self-perform some work and manage the work and for limitations on subcontracting. 

Looks to me like, the culture is shifting back  to emphasis on just getting it out the door and awarded.

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@Vern EdwardsWhether I like it or not, as a typical overburdened CO carrying out contract administration in this "utopia of rules" you describe above, whenever I decide to enforce or improve compliance against the Contractor's current interpretation of a rule, I must be very careful to avoid government overreach.  To overreach without the explicit backing of regulation is to lose all credibility with your industry partner, because the very culture is based on compliance with these rules.  I often find I am left unable to provide the proper amount of time needed to deal with the Contractor's counterarguing legal opinion if I was not properly armed by our friends in the original rule-making process.  These days when I scan a new Proposed Rule, I am always approaching my review as an advocate for armament of the CO with the written words needed to carry out Congress's intent.  This rule-making process (i.e. "promulgation") is my one shot to help future WifWaf do his job!  I wish more COs would comment on the Proposed Rules pertaining to their work by searching for it at regulations.gov, e.g., this LOS one was a quick search for "FAR Case 2016-011".  To do so is to carry out a civic duty and help improve a rule, but it is also a way that Government contracting will gain credibility by input from a diversity of perspectives.  It's okay if my suggested addition of a subparagraph or tweak of language gets shot down by the rule-maker.  The output into the FAR is up to them.

@C Culhamand @joel hoffman and others, you all know this well, but I hope to draw attention to it for our readers.  Supply me with a responsibility in the FAR and I can point to that when I initiate the conversation with my counterpart at the Contractor.  Supply me with a well-written limitation in the FAR and I will point to that when the counterargument for a different interpretation comes from their fancy government lawyer on retainer.  This occurs much more often when I am dealing with a large business.  In the case of improving LOS compliance with a SB, a CO may have better luck just having a common-sense conversation about meeting the spirit of the rule.  In the case of something as far-reaching as this latest Proposed Rule for example, though... https://www.federalregister.gov/d/2021-18339 ...I may need help from my fellow COs predicting ripple effects.  This is a topic for another discussion, but think: what does future you need to point to in the FAR to demand the Contractor help you perform a review of, "[I]nformation submitted by the offeror of recent purchase prices paid by the Government and commercial customers for the same or similar commercial items under comparable terms and conditions?"  Ask now or forever hold your peace, I say.  Or go discuss it in the Proposed Rule forum here to refine it before you ask.  And yes, you can ask anonymously on regulations.gov.  Just ask!

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WifWaf, I can certainly understand your timidity to evaluate a firm’s intent to comply with limits on subcontracting/self performance requirements in a source selection. And I don’t doubt that you are too busy to spend an extra five minutes per proposal reviewing a filled in form and deciding whether it passes the sniff test.

However, if you are negotiating a sole source contract, there is nothing to prevent you from determining whether or not the proposal aligns with the requirement before awarding it.

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And the excuse that it is unclear, ambiguous or too confusing to figure out is a cop out. I coordinated with the SBA to develop the form and clarifications/explanation accompanying the forms. The government has an inherent duty to understand the requirement, which is not just regulatory. 

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9 hours ago, joel hoffman said:

timidity

8 hours ago, joel hoffman said:

excuse

Oof, that's a right hook I didn't expect.

I get a feeling you were dealing with men when you were a CO.  I am dealing with lobbyist weasels.

They're like man, except they have your Agency director and Senator on speed-dial 😁

"If one party at the table is trying to take an unfair advantage of the other party, the element of good faith is not present, hence you have no real negotiation."  Gordon Wade Rule, The Art of Negotiation

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