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  2. 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."
  3. Today
  4. Staying in vs leaving

    MV, what type of industry day events are you referring to? For individual actions or for presentations of programs?
  5. 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.
  6. 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.
  7. Yesterday
  8. 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."
  9. 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.
  10. 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?
  11. 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.
  12. 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
  13. 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.
  14. 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?
  15. 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.
  16. 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.
  17. 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.
  18. Assistance Forum

    The Assistance Forum will be removed over the Holiday weekend because the Agency that requested it did not partipate in it.
  19. Last week
  20. Specific Performance

    help: Yes, it was meant for Jamaal. Jamaal: Do yourself a favor and consult with your legal office. Getting a court-ordered specific performance is way beyond what a CO could do.
  21. Specific Performance

    Thanks, Retreadfed. Good info. The theoretical is not a Defense Priorities and Allocations System (DPAS) rated contract.
  22. Specific Performance

    Jamaal, checkout 50 U.S.C. 4511 and DoC's DPAS regs.
  23. Specific Performance

    Thanks REA, but I am not concerned with 'most commonly' or 'primarily'. I want to discuss and understand the gamut of applications. I offered the definition so people would know what I was talking about. I figured most wouldn't. I don't know why you think its something that cannot be built into a contract. I'd like to hear it. Same goes for your last paragraph; I am unsure why you believe that and what is your assertion based. To be fair, you did preface it by stating you were guessing. I would still like to know your rationale.
  24. Last year, a conversation between Amazon Business and one of the senior leaders in government contract management today was hosted at NCMA’s Government Contract Management Symposium. This session opened many people’s eyes to the technological “disruption” we’re all familiar with in our private lives, but not always in our professional ones. Today, many of us have fully “plugged” ourselves into the digital automation of the modern day. We shop and acquire a whole host of products and services online; stream our music, books, and other forms of entertainment; engage actively in social media and other forms of previously non-existent forms of communication; hail car rides here and there, etc. while continually downloading new apps to our smartphones (anyone still hanging on to their flip phones out there?) to facilitate ever more management of daily tasks and lifestyle behaviors. Looking back just five years ago, when compared to today and the changes in our lives are quite dramatic. However, any form of significant, wide-scale implementation of this “technological disruption” in federal programs or contracts is still in relative infancy. Yet, seemingly out of nowhere, a proposed “DATA Act” this year would require the Department of Defense to develop an “online marketplace” (that is, an Amazon-like platform solely for defense acquisition), which has many thinking of how that may upend existing policies and processes. What about small business or other socioeconomic goals? What about the Competition in Contracting Act (CICA)? What about sealed bidding and negotiated procurement as we know it today? What about the roles of agencies such as GSA, DLA, and VA in centralized contracting and provisioning? Similarly, what about the future of governmentwide acquisition contracts—such as SEWP, NITACC, and the Federal Acquisition Schedules—as centralized contracting instruments? There is much to learn and define as this form of “disruption” comes, just as there is much to prepare for as those tools used to execute “smart contract management” become more intelligent. Yes, the roles and responsibilities of today’s contract management professional may change, but certainly how those roles and responsibilities are executed will definitely change. Today’s contract management professional must (like everyone else) be prepared for this forthcoming sea change. If you didn’t think it could happen to you—think again. NCMA’s Contract Management Body of Knowledge (CMBOK) already reflects this shifting paradigm, adding new professional competencies and expanding the “reach” of today’s contract management professional to become more multidisciplinary in role, including ever greater reliance on “soft-skills” for success. If you pride yourself on your complete understanding of the FAR and strict adherence to processes and policy, congratulations; you know the rules and can apply them. However, start complementing and expanding those abilities by developing other business competencies, which will be necessary for future success. Don’t wait for some policy office to issue guidance, or DAU to offer a new class. Just as many of us no longer use agents to book hotels, cruises, or other vacations in favor of online travel services such as Expedia and Orbitz; or have traded in our cable TV packages for streaming video services (known as “cutting the cord”); or cancelled our newspaper and magazine subscriptions for free or paywall online news services, the entire contract management enterprise is shifting to more digitally driven, results-oriented models—which means today’s contract management professionals must reevaluate their skill sets and reassess their value-add. The analytics and measuring tools available continue to increase. Can you not only use them, but just as with understanding existing statute and regulation, can you interpret and apply them? Do you have relationship-building skills relevant in today’s team-oriented, business management program culture? There was a time when being strict and inflexible might have been considered an asset in the contract management profession—e.g., noncompromising or hardball tactics that ensure adherence to process, technical integrity, and meeting negotiation goals. All that still matters, but automation has filled some of that expertise with improved analytics and data, placing greater reliance on “soft skills” for professional growth and success. It’s important for all of us to prepare for this coming technological “disruption.” It’s already arriving. Make sure you’re ready, so you offer the improved professional contract management alternative when your company or agency “cuts the contract management cord!”
  25. Specific Performance

    Vern, I suspect you meant that cite for Jamaal.
  26. Specific Performance

    See Marker v. U.S., 646 F.Supp. 433 (1986, D. De.) in which the district court granted the government's plea for specific performance of a contract.
  27. Specific Performance

    @here_2_help: I found this in the U.S. Attorneys' Manual: https://www.justice.gov/usam/civil-resource-manual-219-specific-performance
  28. Specific Performance

    From your own source: "Most commonly ordered in cases involving real property and rare chattels." I'm guessing that it's safe to say that compelling performance isn't really a practical tool in the Government CO's toolbox. It appears that Specific Performance is primarily applicable to real property, because property tends to be unique and its value is subjective. Also, it's not something that could be built into a contract anyway (i.e., it would be the potential remedy to a legal dispute, like paying the protester's costs.) I would also add that logic dictates there would have to be a clear and unequivocal act with a definite outcome that would be compelled, such as transferring title in a land sale. Contrast that with, for example, HHS demanding Specific Performance defined as "a working Affordable Care Act web site"
  29. Specific Performance

    I have been told by reliable authority that the answer is yes. The government can seek specific performance as a nonmonetary remedy, but not from a board of contract appeals. It would have to go to a court under other than the Contract Disputes Act. A contractor may not seek specific performance by the government. I have not researched the matter myself, but my source is generally reliable. I'm to busy now to dig out statutes, cases, or secondary sources..
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