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Just because I was reminded of this in following the thread ................... FAR 52.222-41 - (n) Seniority list. Not less than 10 days prior to completion of any contract being performed at a Federal facility where service employees may be retained in the performance of the succeeding contract and subject to a wage determination which contains vacation or other benefit provisions based upon length of service with a Contractor (predecessor) or successor (29 CFR 4.173), the incumbent Prime Contractor shall furnish the Contracting Officer a certified list of the names of all service employees on the Contractor’s or subcontractor’s payroll during the last month of contract performance. Such list shall also contain anniversary dates of employment on the contract either with the current or predecessor Contractors of each such service employee. The Contracting Officer shall turn over such list to the successor Contractor at the commencement of the succeeding contract. But then again I am really wondering why Rule 17 has not been applied to this thread a long time ago?!?!?!?!

One additional thought. Some agencies like to consider offerors ability to recruit incumbent employees if they are successful when evaluating responses. Claims are verified through past performance checks. That may not help in this instant situation, but it’s something to think about.

Maybe there are other readers who would like you to elaborate. I would want to elaborate. But it's your call.

I was throwing some ideas outs as they came to mind. I don’t bother to provide details as if was a concept that would immediately be evaluated for acceptance. It’s not professional quality but there’s no indication that the original poster is even reading responses. I’m glad to provide a comprehensive answer if he requested and is considering it.

@formerfed What's an employee background "application"? How would submitting such applications save time? Save time during what process? Proposal evaluation? Transition? "Achieving a transition milestone" would be a deliverable CLIN? A service? What would be the unit? What would be the service object? What belonging to the government would transition change? What would be the bases for acceptance or rejection of a transition milestone? "Project management' would be a deliverable CLIN? What would be the unit? "Reporting" would be a deliverable CLIN? What would be the unit? So, a plan or procedure𑁋which, I presume, would be documents𑁋would be deliverable CLINs? If so, they would be subject to inspection and acceptance. If so, would the deliverable plan and procedures documents be supplies or services? (They would be property, right?) Which inspection clause would you apply to them? 52.246-2 or -4? If you don't think they would be property, what do you think they would be? I don't really expect you to answer my questions. My point is to show the kinds of questions an intelligent boss would ask if someone came to them and proposed the things you have proposed.

@formerfed Would "transition" be a separate contract line item (CLIN)? "0001 Transition..."? A service, I presume. If so, what would be the unit? What belonging to the government would be the service object? How would "transition" change it? Transition from what to what?

I just added a missing thought to my post above. The reason I mentioned labor-hour especially for the PMs effort is a lot depends when other employees get cleared and evolving transition needs. But I’ll add if the agency provides sufficient background information, a fixed price transition works. The transition plan should be negotiated so the offeror understands expectations and the government agrees. Edit: so I understand - “Value lies in the change the contractor produces in the service object, not in the effort made to produce the change.” The transition evaluation needs to reflect this.

What do you mean by "labor hour pricing"? How does that work? Please elaborate. As you may suspect, I am setting you up, since you liked my article on services, especially my comment on effort. 😈

In addition to what’s been said already, I’ve seen some other practices that might work. One is have offerors submit employee background applications with their proposal response which should save time. Another is requiring offerors to identify transition milestones with proposed prices. This should be negotiated and allows the contractor some revenue. For example include a deliverable for project management and reporting. Or a quality assurance plan. Or operational procedures. A transition period as jessshire stated with the PM and limited staff start ahead of everyone else is feasible providing they don’t need full clearances to begin. Using labor hour pricing makes sense too. A very solid approach is requiring offerors to propose their transition. Provide parameters and constraints in the solicition, especially the 2-4 month clearance expectation. Evaluate individual plans with the rest of proposals.

Vern: I can think of a few things. Compare the creation of the General Services Administration (GSA) by Congress in the Federaly Property and Administrative Services Act of 1949 to that of OFPP. GSA had pedigree. The First Hoover Commission recommended an Office of General Services and GSA looks very much like that recommendation today. Want a pencil? Go to GSA. Want a Building? Go to GSA. Want Federal Records? Go to GSA. The Federal Government cannot operate without GSA. It is a powerful government agency and was born with its own contracting programs and contracting regulations--and they still exist today. In fact, the First Hoover Commission mentioned the Multiple Award Schedule (MAS) Contracting Program as one of the bright spots in federal contracting. Over the years, GSA usurped more government contracting power and Congress was happy giving GSA more power. OFPP has nothing to offer anyone. It was born out of a recommendation of the Commission on Government Procurement. After stating its policy, Congress provided OFPP with a series of Henny Youngman one-liners. Then Congress provided limitations on OFPP And then the kiss of death. Placing it within the Office of Management and Budget (OMB) within the White House. OFPP had to scrounge staff from other agencies etc. Then Congress passed contracting laws on its own such as P. L. 95–563, The Contract Disputes Act in 1978. While OFPP was testing the Mandatory Small Business Subcontracting Test in accordance with the Commission of Governments Procurement's recommendation, Congress passed P. L. 95-507 before OFPP finished its test. One after another major and minor contracting and/or small business laws were passed. OFPP was nothing more than a congressional or a Jack Brook's straw man. Like it or not, OFPP was intentionally dead-on-arrival.

I agree with that. I think I asked such a question earlier today.

This is an old problem. Ancient. Easily managed by thoughtful and competent pros who can plan ahead. For example: B- 419371.3 (Comp.Gen.), 2021 CPD P 147, 2021 WL 1265134 As for Don's question:. B- 419049.3 (Comp.Gen.), B- 419049.4, 2021 CPD P 117, 2021 WL 1101449.

My belief is that with regard to FAR 12.302 it's not what I may think but rather I "shall" support my tailoring with market research. Check out GAO protest decision B-411760.3. Flimmsy support? Think what you may!

Bob, I'm working on an article about how OFPP got into a fight with the Department of Labor in 1976-77 over which of them controlled policy regarding application of the Service Contract Act. Congress saw OFPP as attempting a coup. OFPP ultimately lost. It was quite a flap. Once upon a time OFPP was a big deal. It's story is one of decline in prestige and influence over time. Steve Kelman's tenure was its zenith. It's been downhill ever since Kelman left. What's not clear to me is why that has been the case, but I think DOD, GSA, and NASA never did like the idea of an OFPP.

So, you may think that commercial entities don’t include incentives or other terms in contracts to encourage or incentivize on-time performance or delivery, when such is deemed critical? I will venture a guess that timely performance is more often then not a primary goal and objective in the commercial marketplace.

My belief is - it depends. Read FAR subpart 12.302 do your market research and then decide what you can do in tailoring an existing FAR clause or otherwise create contract terms and conditions (or not) that follow the commercial practice for the service you are acquiring.

If the contract required the contractor's personnel to be cleared--and the contractor's employees weren't cleared--how did the contracting officer determine that the contractor was responsible?

Vern: I did a search for the word acquisition in Public Law 96-83 and found the above. Apparently, Congress decided to move FAI to OFPP and directed by the Administrator, OFPP.

Ji20874 gives solid advice. This issue comes up often across the government. One approach some use is allow contractors to start partial, if not full performance immediately using “interim” clearances. That involves fingerprinting and a quick background check which generally takes just a few days. Having a security clearance or an active check from another agency helps too. I’m adding to share my experience as a contractor. Companies, and particularly small ones, need revenue to cover their labor costs. Having workers that aren’t being billed hurts financially. Sure, there are tasks in-house those employees might work on. They can also perhaps be assigned to other projects but that often upsets customers to have contractor staff rotate out shortly after they become used to the job. All that being said, don’t expect contractors to provide their very best labor rates when they have idle employees for part of the effort.

For DOD A-E contracts or for construction contracts with contractor provided design (e.g., design-build contracts or standard construction contracts with a contractor designed building system(s)) , see DFARS 227-7107 “Architectural designs and data clauses for architect-engineer or construction contracts” paragraphs .(a), (b) and (c). This provides the prescription for contract clauses regarding non-exclusive (a) or exclusive (b) Government rights to the data pertaining to the design and the design-products. A clause pertaining to the government’s rights to shop drawings (including any design furnished) is prescribed in (c). The clauses are: 252-227-7022 Government Rights Unlimited 252-227-7023 Drawings and Other Data to Become Property of the Government 252-227-7033 Rights in Shop Drawings

Memorial Day weekend is almost here, which means the unofficial start to summer! Whether you are hitting the road or relaxing at home, I hope you have an enjoyable long weekend while remembering those that have given their lives to protect our country. Of course, a relaxing weekend isn’t complete without some good reading material, and we’ve got you covered. This week in federal government contracting news…. Defense Industrial Base Adoption of Artificial Intelligence for Defense Applications; Notice of Availability Coast Guard still struggling with major acquisition programs U.S. Department of Energy Looks to Support Tribal Energy Generation in Transition to Clean Energy Legislation weighing contractors’ national security risk heads to Senate floor What a blast to work at NASA. Space agency is sky-high again in latest survey of federal employees VA building out career development portal to boost cyber skills Former Construction Contractor Sentenced for Crimes Involving Fort Drum Contracts Felony convictions of 5 retired officers dismissed in Fat Leonard case America’s first Black astronaut candidate goes to space 60 years later Looking ahead to the no-surprise, likely-late 2025 federal spending bills Caterpillar to Pay $800K to Resolve Racial Hiring Discrimination at Decatur, Illinois, Facility Alleged in Federal Compliance Review FedRAMP launches Technical Advisory Group to help guide program decision making MyGovWatch Saves Vet Biz Community Up to $1,000 Per Year to Hear About Government Bids & RFPs US Government Urges Federal Contractors to Strengthen Encryption Army sets stage for broader adoption of digital engineering How 3 Key Contracts Are Advancing US Cyber Goals Former Program Director at the U.S. Department of Agriculture Office of the Assistant Secretary for Civil Rights and Nephew Arrested in Kickback Scheme The post SmallGovCon Week in Review: May 20-24, 2024 first appeared on SmallGovCon - Government Contracts Law Blog.View the full article

Is your contract structured to pay for staffing, or to pay for performance? What are you paying for during the phase-in period? Staffing or performance? Please do not muddle the answer -- pick one: staffing or performance? If staffing, is the contractor providing the contract-stipulated staffing? YES: pay the FFP. NO: pay nothing. If performance, well, is the contractor meeting its performance obligations? YES: pay the FFP. NO: pay nothing. Your next contract could establish a phase-in period of four months, for example, during which the old contractor still has performance responsibility and the new contractor performs some meaningful performance (and receives some small payment) and also fills out its staffing, with full performance (and regular full payment) starting after the fourth month. Or, if you can't handle two contractors in the space for a transition, you can award the new contract with a phase-in period of four months, for example, during which the new contractor fills out its staffing (and receives no payment), will full performance (and regular payment) starting after the fourth month. You can even declare that the base year starts after the fourth month, so the base year includes four months unpaid for contractor readiness and then 12 months of paid performance.

I remember such concerns that early delivery could result in additional storage and other costs, plus possible problems with aging/deterioration in storage or early commencement of warranties, etc. Just in-time delivery of parts and assemblies in industry is very popular these days. I imagine that cost as well as cost impacts for early or late deliveries are important for manufacturers. An additional net $.10 or $1.00 cost per each of 50,000 or 1,000,000 vehicles is extremely important to manufacturers. How do manufacturers structure their supplier contracts for on-time deliveries? Obviously, I’m not an industrial engineer or efficiency expert. Those are the experts in these areas.

Did you mean “is it okay…”? I would presume that the government’s expectation is to receive the product(s) on-time. i don’t know what the vendor’s delivery expectations would be. Yes, if it provides some additional value. Otherwise, I would likely disagree with paying a bonus price incentive for earlier than required delivery performance. I agree. The price should presumably reflect meeting the required delivery date. The specific concerns expressed in the original post are over this specific contractor’s past performance history of late deliveries and the resulting impacts to the government and programs if this delivery is late. As this is a sole source acquisition from the OEM source, the vendor will preumably have the opportunity to price the product to consider what it will take to ensure on-time delivery. Of course, it can also price the order in advance to simply cover intended or unintended late delivery liquidated damages… So, are there other non-monetary incentives available to consider?

How so if current contracts that lead to your concern have FAR payment clause 52.232-1 in them? The clause provides for payment of services delivered and accepted. With this said it is my way of saying you have not provided enough detail as to what the real issue is as it could be a contract administration problem or maybe the current contracts are not really FFP.