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  1. Yesterday
  2. CPARS comments

    FrankJon: A coworker and I discussed the very same thing. We turned on the language "Performance meets contractual requirements and exceeds many/some to the Government’s benefit." I don't know that expectations are synonymous with requirements. The metrics are the requirements. To be clear, I don't see much, if any, risk here either. The rating system just seems oddly written in light of the rules. Seems like the only way to achieve more than a Satisfactory rating is to do more than contractually required and more than consideration was provided for. The idea was more watercooler talk than anything. It was interesting enough that I wanted to hear others thoughts.
  3. I always questioned the adequacy of the source justification when seeing distributor involvement in a proposed procurement, before looking at the adequacy of competition. For example, if it was requested that a Ford automobile is required to be ordered, was there adequate justification for that vs. issuing an RFP to many brand car dealers for automobiles that carry x passengers, get x miles per gallon or more, are licensed to drive on highways and streets, etc. I believe it would be a stronger file if the manufacturing source justification was adequate to support a determination of competitive pricing among distributors of that product. You may get better or more views if you could fill in the details of your scenario, Phil as to source justification and market research. But, it would be awfully nice if we could get a view from CPSR teams or those that deal with them daily e.g., see CPSRHelpandHints on Facebook
  4. Specific Performance

    Here is the Black's Law Dictionary definition of "specific performance":
  5. Contractors are not required to seek or obtain "full and open competition." Only government buyers are required to do that. Contractors are required to "select contractors on a competitive basis to the maximum practical extent consistent with the objectives and requirements of the contract." See FAR 52.244-5. That's a lower standard. In a CSPR the government is supposed to determine "the degree of price competition obtained." I cannot say what an auditor would think of the case that you described. I would not be surprised if they object, because they might be thinking in terms of rules that apply to the government. I think the key might be for you to show that there really was price competition among the distributors. Merely showing that you got quotes from two or more distributors might not be enough. I would certainly question it.
  6. CPARS comments

    Jamaal - I have not looked at Limitation on Voluntary Services case law apart from the link you sent, but I don't see a lot of risk here in the context of contractors going "above and beyond" to obtain better performance ratings. For instance, Quality and Schedule expectations could be exceeded simply by exceeding the metrics in the QASP and PWS. In a performance-based environment, the Government wouldn't necessarily be concerned with the path that the contractor took to get there, even if that path were introduced by the contractor mid-performance.
  7. NDAA for FY 2018

    1, 2 and 3. Pretty much in that order.
  8. I'm asking about full and open competition from a federal government prime contractor perspective. The contracting is buying to support an active prime government contract. Lets assume He/she is purchasing $800,000 of some product that does not meet the definition of a commercial item; and, this product is manufactured by only a single manufacturer. If the contractor gets quotes for the product from 2 or more distributors and determines the price fair and reasonable based on competition, will a CPSR Audit team look at this price reasonableness determination as being valid or look at it as not adequate since there is a single manufacturer and the prime contractor didn't determine the price from the manufacturer as fair and reasonable - even though distributors were involved in the sale.
  9. NDAA for FY 2018

    As of this morning, the NDAA bill sections that you looked at the most in descending order: Increased simplified acquisition threshold (sec. 805) Requirements related to the micro-purchase threshold (sec. 806) Use of lowest price technically acceptable source selection process (sec. 822) Modifications to cost or pricing data and reporting requirements (sec. 811) Enhanced post-award debriefing rights (sec. 818) Applicability of cost and pricing data certification requirements (sec. 812) Performance of incurred cost audits (sec. 803) Statements of purpose for Department of Defense acquisition (sec. 801) Repeal of certain auditing requirements (sec. 804) Expansion of definition of competitive procedures to include competitive selection for award of science and technology proposals (sec. 221)
  10. Staying in vs leaving

    MV2009 - My recommendation is to go directly to the source - the contractors - and ask the questions. I'm sure they would be happy to give you information that would make it worth their while to compete. You can do this via RFI (future facing; "Would you be interested if X?") and/or direct communications with targeted contractors (retroactive; "Why didn't you bid on X solicitation?").
  11. NAICS and Scope

    Vern - I think we're mostly on the same page. 13 CFR 121.402(c)(2)(i) states: Perhaps I'm inferring slightly, but I do not read "assign the NAICS code and corresponding size standard that best describes the principle purpose of each order" as being limitless. The chosen MATOC NAICS must be more than the "best" one; it must in fact reasonably describe the principle work to be conducted under the order. If even the "closest" NAICS code does not do that, then the MATOC is an inappropriate strategy. Based on the preceding rationale, I referred to this assignment process as an "analysis" in the above post, even if the NAICS match is obvious and requires nothing more than a statement to that effect within the contract file. (I will also reiterate here that I think this discussion is largely theoretical due to the reasons stated in my previous post.) As always, Vern, I appreciate the time and energy you've put into sharing your insight and viewpoints.
  12. Last week
  13. CPARS comments

    Noting that the government is entitled to strict compliance, in what ways does exceeding contractual requirements to the benefit of the government (exceptional and very good) comport with 31 U.S. Code § 1342, Limitation on Voluntary Services? Is there a contract administration concern that contracting officers should consider? http://www.governmentcontractsadvisor.com/gao-treasury-violated-antideficiency-acts-prohibition-on-voluntary-services
  14. Specific Performance

    Todd, Vern, et. al. Thank you. I read through the references I have reasonable access to (Contract Attorney's Deskbook and the Government Contract Guidebook (4th ed)). Found some good reading in the Journal of Empirical Legal Studies. March 2015, Vol. 12 Issue 1, p29-69. It discusses what specific performance is, a brief history, and arguments for and against it. "Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. Despite rich theoretical discussions of specific performance, little is known about parties’ treatment of the remedy in their contracts. We study 2,347 contracts of public corporations to quantify the presence or absence of specific performance clauses in several types of contracts."
  15. Staying in vs leaving

    MV, what type of industry day events are you referring to? For individual actions or for presentations of programs?
  16. Staying in vs leaving

    MV, you asked a broad question. I’m wondering what type of acquisitions you are referring to. You mentioned uninterested “suppliers”. If you are experiencing a lack of interest across all types of acquisitions, then it would seem to me that few firms want to deal with your organization. You should want to become a “great customer”. I can say that a simple answer from my perspective and experience is to “make the solicitation attractive to industry”; read your solicitations from a supplier’s perspective; treat suppliers fairly with respect and honesty; and make prompt payment for goods and services provided. As for “how to” make the solicitation attractive to industry, it depends upon the type of acquisition but frame the requirement so as not to restrict competition. Use reasonable evaluation and selection criteria. Don’t over complicate the acquisition process and keep industry response costs as low as possible. Make prompt selections and awards. Don’t go on “phishing expeditions - effectively use market research before issuing solicitations. Seek industry feedback during your research. In summary, to promote competition, you must become an attractive customer.
  17. Staying in vs leaving

    FrankJon, you are correct and I’ll try to clarify what I intended. Organizational success is dependent on a lot of variables. Employee morale is an important variable towards obtaining that success. If individuals do not feel like the work they are doing is meaningful, the work product quality may decrease. If the buyer receives no feedback from industry on the requirement or only one offeror responds to a competitively solicited action, it can have an adverse impact on morale as an inidivual may feel helpless in achieving its objective to provide best value to the government and taxpayer. I understand there is more to it as there are internal items (management, contracting officers) that impact employee morale significantly as well. Since these internal items require an in-depth look and assessment of the organizational, which cannot be provided here. I was seeking an answer to the following: How do you promote competition in markets where suppliers do not seem very interested in responding to solicitations? Are there items in the notice or at the industry day event that need to be explicitly written or said to promote feedback and questions from industry? I did wonder if it was a perception issue but after reading here_2_help post, its clear that is unlikely the reason.
  18. NAICS and Scope

    I don't think that a new NAICS analysis needs to be done for each requirement. I think that you must comply with both FAR 19.303 and 13 CFR 121.402(c), which requires a complete NAICS code analysis for all prospective work before the contract solicitation is issued. After than, you simply assign the appropriate NAICS code on an order-by-order basis. See 13 CFR 121.402(c). See also 13 CFR 121.402(e): As you can see, you may not use just a "principal purpose" NAICS code and size standard for a MATOC or MADOC unless that NAICS code and standard will apply to all orders. Otherwise you must include a NAICS code and size standard for each kind of work for which orders will be issued. Each order is then issued with its own NAICS code and size standard. That has been the law since December 2013. See also FAR 19.303(b). In the one SBA OHA case that I cited, a small business contractor appealed the decision to apply the principal purpose NAICS code used in the contract solicitation to an order to which it did not apply. The OHA dismissed the appeal, saying that in light of the facts the order had to use the same NAICS code as the was used for the contract, because the MATOC solicitation had included only a principle purpose NAICS code and the appellant had missed the deadline for appealing. I think that the OHA ruling was unjust and that it may not have complied with the law, but the appellant did not appeal that decision. As for "MATOC", I have used that acronym on occasion for other than construction contracts, although the most common use is in connection with construction contracts. The ASBCA has used it mainly in connection with construction contracts, but also for ship repair. I've found a COFC decision in which it was used for software development. Search FBO and you'll find it used for many kinds of contracts, including R&D: You might be interested to know that according to a Westlaw search, the acronym MATOC does not appear anywhere in the FAR System, Title 48 of the CFR, neither does the term "multiple award task order contract."
  19. CPARS comments

    This is from the 2016 CPARS Guidebook (you can Google it): As ji states, it's in the eye of the beholder, really. When I was Focal Point, if I saw "Exceptional," that was a red flag to me. Even if the contractor deserved it, the narrative rarely supported it. Your best bet, in my opinion, is to learn how to craft a compelling CPARS narrative yourself. That way, when you non-concur, the Reviewing Official (and possibly Focal Point) will see that you're speaking the correct language. He'll have to take you more seriously than if you had just aired your grievances or resorted to superlatives, as many contractors (and program officials and COs) do.
  20. NAICS and Scope

    This discussion has been very interesting to me. My initial question, whether the order NAICS must match the IDIQ NAICS, turned out to be a simple one. The answer is clearly yes. But ji read between the lines and realized that the deeper question is whether a NAICS analysis should be performed at the order level. Beyond Vern's and ji's points, I continue to discuss this subject around the office and gain additional viewpoints. I agree with Vern, in theory, that the regulations lead one to the conclusion that a new NAICS analysis must be done for each requirement, including prospective orders, prior to determining the acquisition strategy. Assuming that the IDIQ has appropriate NAICS codes associated with "non-principal" work, in accordance with 13 CFR 121.402(c)(1)(2), then performing a NAICS analysis at the order level would not hinder the CO's ability to use an IDIQ that otherwise matches the scope of the prospective order. (Even if a non-IDIQ NAICS would indeed be a better fit for a prospective order, there would hopefully be sufficient overlap between the "ideal" and the "possible" that the CO could make a compelling case to use the IDIQ.) Nevertheless, in practice, I believe that this issue will continue to be a messy one. First, FPDS-NG simply does not play well with the CFR guidance on this. If I were to solicit an order as a set-aside under a "non-primary" NAICS code, I might get a more accurate pool of small businesses competing for the work than if I had solicited the order under the primary NAICS; however, the winner would still be reported under the primary NAICS code. Thus, the situation could arise whereby a company that is "small" for solicitation purposes is "large" for award purposes, and vice versa. Second, there seems to be no shortage of "best in class" MACs and GWACs that disregard the CFR rule to divide the contract into multiple NAICS codes. For instance, on SEWP, the Government can by laptops under NAICS 541519. I haven't looked recently, but I believe that NASA would cite the VAR exception if asked to defend this choice. But, of course, that would be absurd for laptops--a small business reseller will not be providing any added value via services. If something goes wrong with the laptops within the warranty period, it's the manufacturer who will be assisting. I'm not suggesting that NASA's decision in itself justifies anyone else circumventing the CFR guidance, but at a certain point, practices are so prevalent that they become norms. As an aside, Vern, I'm curious about your use of the acronym "MATOC" throughout this thread. This is the first time I've seen someone use it outside of a construction context. Do you commonly use this to describe any task order contract?
  21. Staying in vs leaving

    First, industry's perception of the competency of the office should be irrelevant to the individual government employee's decision whether to stay in that office or to depart. Second, industry really doesn't care how inept (or ept) government employees are, so long as they do their jobs fairly and impartially to the best of their ability. I sometimes run across government employees and think to myself "Dang I wish they worked for the contractor"--but of course I cannot even hint at that. Less frequently I run across government employees and think to myself "How do they keep their job?"--but of course I cannot even hint at that either. However, the most common reaction is "meh" -- so long as the individuals do their jobs reasonably well and reasonably impartially, industry is usually good. And believe me, industry does not tend to form judgments about offices or components very often. (Except DFAS.) It's when government employees depart from the rulebook (whether documented in FAR, an agency supplement, or in the contract) that industry starts to care. Thus, requirements do matter to industry, but only to the extent that they are (a) reasonable, and (b) implemented consistently and fairly. Other than that, industry mostly keeps its nose out of government business and tries to perform its contract(s) to the best of its ability, and it hopes the folks on the government side are doing the same thing.
  22. CPARS comments

    Desparado in my asking around the last week or so I have heard several cases like this. Several big boy contractors leaning on people in high places to get their ratings changed if they weren't happy with them. We have been rated exceptional on one contract and then didn't do a single thing differently on another and got satisfactory. Yes, the contractor commentary follows the evaluation for future source selections. But ultimately that rating, even if it's a very small part of a broader evaluation criteria, means something. It's important. It could be the difference. Contractors shouldn't have to lawyer up to make a case for their CPARS
  23. CPARS comments

    You are right in that it is supposed to be, but I am facing a situation now where a bad contractor contested their rating. As the reviewing official I reviewed what they wrote and the contract file, spoke with the contractor and the contracting officer and then made a decision to uphold the Unsatisfactory rating. The contractor then proceeded to get political appointees involved and now all heck is busting loose. Sad, but true.
  24. CPARS comments

    That's really helpful FrankJon. Thank you. This whole exercise has been a lot of fun and we have learned a lot. I would still be interested in contractor or govt POV for what is considered exceptional work in areas like cost control. There are a host of ways I could think to provide value added services in other areas. It sounds like meeting all contract requirements, providing budget necessary updates, sending for your funding notice (s) and completing your work on time and under budget are not enough. There must be something of significant benefit to the government. Exceptional work is our goal - what are others doing in this area that they would consider exceptional?
  25. CPARS comments

    Michael - The answer to this is yes, it is possible, although it is not part of the regular CPARS process flow. Either the Department POC (DPOC) or Agency POC (APOC) (in my last agency they were the same person) would need to send a request to NAVSEA to "unwind" the evaluation and explain the rationale for doing so. In every case that I've seen this occur, NAVSEA has agreed to the request. As the Agency Focal Point, I would encourage others to pursue this path if it seemed like the most equitable solution under the circumstances. Now, if I were a contractor, and I disagreed with the evaluation, I would most likely still want to non-concur within those first 14 days to mitigate the consequences in the event that the above course of action never materializes. A non-concurrence would not prevent NAVSEA from unwinding the evaluation if adequate rationale exists.
  26. Staying in vs leaving

    MV2009 - Your question starts in one place and ends in another. It's a bit confusing. You may want to be more specific as to the problem you're experiencing with regard to industry and suspected causes in order to get useful feedback here.
  27. Staying in vs leaving

    The "Ethics and Transparency" thread posted by Eagle93 led a number of people to recommend for the individual to head for the exits and do not look back. I wanted to see what steps the community would recommend if the individual sought to improve the organization vice leaving. Reading and gaining the technical knowledge and demonstrating what you learned will be the most important elements to gain respect within your office but how does the individual change the perception of the office that industry may have? Revising the requirements is key but the lack of interest from industry regarding the requirements makes me believe there is more to the story than just the requirements being revised.
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