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Posts posted by Cajuncharlie

  1. Good advice from Vern.

    A few years back I took a teleconference course in REAs and claims. The attorney who presented it stressed the importance of doing as much of the work as possible while the matter is an REA, so that if it cannot be resolved without progressing to a claim under the disputes process, most of the work will already have been done as a matter of normal contract administration whose costs are allowable under FAR Part 31, while costs of pursuing a claim are not.

  2. The TINA exception from the requirement for certified cost or pricing data based on competition in 15.403-1(b )(1) is a contracting officer determination, using standards that are pretty well defined in 15.403-1( c)(1).

    Whether price is a "substantial" factor in the source selection seems to deal with the exception more than the rule, imho. I cannot recall an instance where price was not a substantial factor, although there may be some out there. This would depend on the evaluation criteria in the solicitation, wouldn't it?

  3. After working in Southwest Asia more than 25 years for U.S. Government prime contractors and first tier subs, often in contingency environments, I have to add a big ?amen? to the comments from Vern and Brian.

    I cannot tell you how many times people have brought me or my buyers three quotes, on nice letterhead but of dubious origin, without a biddable scope or work statement, and expected an immediate purchase order to support a critical mission.

    Only you can decide the balance between how much time you are willing to spend to satisfy yourself as to the propriety of a course of action, and how much credence you give to the work of others in the interest of maintaining a high production rate and meeting customer expectations for timely mission support.

    Always remember what Hilary Swank?s character in Million Dollar Baby forgot, the last thing a referee tells boxers before they come out fighting, ?Protect yourself in the ring at all times.?

    Some practical areas as food for thought:

    First, document your file with the basis of your decisions, maybe a summary of the documentation that formed the basis of your award decision, and especially any information or guidance given to you verbally so it would not otherwise be in the file unless you write it down and put it there. This does not have to be a time-consuming exercise, and ideally would not be canned or copied-and-pasted, but would be a brief note that?s unique to each buy. You may already have a form for this. Don?t pencil-whip it. Take a minute to write something so you would not mind your mother reading your file, or seeing it on 60 Minutes.

    Second, if these quotes are coming from a pre-bid site visit or job walk, which seems likely if you do not have a well-defined scope or work statement, let your internal customers know that you need to know about these job walks in advance, and they need to accommodate any additional potential bidders that you want to solicit. Explain to them that rotating qualified bidders complies with FAR 13.14( a)(1) ,helps avoid the appearance of impropriety, and reduces the amount of scrutiny they can expect. I recall telling a prime contractor customer?s engineer in a meeting that it doesn?t take any longer to send an invitation to a job walk to three bidders than to one bidder, and being supported by the client?s subcontracts manager while getting a dirty look from the engineer. Guess how we did those from then on.

    Third, talk to your superiors and colleagues about these concerns and ways to beef up the support in your files with a minimum of additional time and effort.

    Fourth, to expand on Brian?s sermon on internal controls, be aware of those things and try to move your processes in that direction. On one military support deployment, we did not mobilize many U.S. contractor personnel, but we made sure we had one person sign as requisitioner; another sign funds availability; another sign overall approval of the req; another sign the PO; a completely separate receiving section; a separate review of invoices to include matching with req, PO, and receiver; and a separate business management review and signature cycle for payment requests, whether cash or check. Petty cash and checking account records were audited at least monthly. We did not have enough people to have different individuals sign each of these steps, but we developed a process that required several signatures for each step, using as many checks and balances as we could, to keep us all safe and avoid the appearance of ?cornflakes? of interest. You may not be in position to influence how these things happen where you are, but again, it?s food for thought.

    It is interesting to work in a place, even as a contractor, where your personal protective equipment is more than a hard had, steel-toed boots, and a bright reflective vest, instead having a helmet, level 3 body armor with level 4 ceramic chicken plates, a web vest with ammunition pockets, a side-arm, a long gun, spare mags, and a radio and sat phone. Stay safe out there.

  4. With reference to Post # 46, since the content discussion has moved along so much, this post is about tone rather than content. It appears that others share this view, and our host has weighed in.

    My absence was not due to moping, but a combination of factors: snowed at work with too many half-days (12 out of 24), preparing to move (in my time "off"), and finally wondering why I bother to post here when abuse continues, even in posts which deny that they are abusive.

    Please think about "piling on" and "unnecessary roughness." Please consider whether calling somebody (anybody) "too sensitive," speculating that somebody is "moping," and especially your last paragraph, add any real value to the discussion or just gratuitous sarcasm (abuse). Please consider whether the post cited above discusses the issues at hand or goes directly to personalities in an "I'm OK; you're not OK" kind of transactional analysis.

    The sermon I preached about manners fell upon deaf ears, so I won't preach about a related subject: respect.

    So if the good folks on this forum do not see me posting much, it's not that I'm avoiding debate, which I find stimulating, or moping, which is not how I am. It's because it's no fun to go into a debate expecting civil treatment and instead getting abuse. Who needs it?

  5. Flatly stating that somebody is wrong is not how I was brought up, especially in a discussion of complex matters with numerous factors that leave room for experienced professionals to reach different conclusions. I make no claim to political correctness, and do not consider myself overly sensitive, but I do try to maintain a certain standard of business courtesy. For example, normally there is no way I would "refuse" in writing to do something, but would "decline" and soften the blow rather than escalate tensions and exaggerate differences needlessly.

    Also I avoid argumentum ad hominem criticism of the person rather than the argument, and any statements that border on it. Unfortunately that kind of thing appears to be all too common in this forum. Often newcomers are dealt with more harshly than necessary. This gives the impression of being more interested in using a display of the depth and breadth of grasp of the specialized body of knowledge of our profession to score points, in a negative way, off those who are trying to learn, rather than helping them in a positive way. Challenging people to think and to use the resources at hand is one thing; tearing them to pieces in the process is quite another. It's a matter of respect and manners, which in the end count for more than people think.

    Defining "new" in terms of scope rather than calendar seems odd. What I consider "new" in this context would be a requirement that arose (the complete, valid, requisition with any and all required information and attachments arrived in the procurement shop, ready for action) after the effective date of the repeal of the ("old") demonstration program.

    Whether such a new requirement would have been within scope, if the program under which task orders were to be issued had not been repealed, seems moot, but that's hard to argue, as few others in this forum have your experience with statutes and legislative history related to procurement or acquisition.

    If the law saying no more steel from Timbucktoo (or, reductio ad absurdum, no more cost-plus-percentage-of-cost contracts) failed to say that it applied to future task orders under validly awarded existing contracts, and the legislative history similarly contained no such statement, it's therefore OK to keep buying Timbucktoo steel from our cost+% vendor to fill every new requisition that arrives and is within the scope of the original competition and contract, then our disagreement has been pinpointed.

    Oh, and I do bring my common sense to work every day, and use it, along with contract language and professional reference material, to try to avoid being carried away by a flood of finely nuanced arguments that might blur the basic difference between right and wrong.

  6. Is it just me, or does it rub others the wrong way when the media refer to individuals as "contractors"?

    A recent example is on a Dept of Justice link on the WIFCON home page: "U.S. Army Contractor Charged with Assault in Relation to Stabbing at Kandahar Airfield in Afghanistan". (http://www.justice.gov/opa/pr/2011/January/11-crm-013.html)

    Sometimes I think I'm being appropriately precise; other times I wonder if I'm too picky.

  7. I'll tell you what's simple: You're wrong. We are talking about issuing or not issuing within-scope task orders under validly awarded contracts.

    The issue is more like limiting competition in solicitations for new requirements by using MATOCs awarded under a repealed demonstration program, when one of the major reasons for the repeal was the limitation of competition.

    Thinking it's OK to use the limited competitive environment of these MATOCs, that were established under a demonstration program that was repealed because it limited competion, to solicit and award new work, defies common sense as far as I can see. The message was clear: limiting competition for any new work under the MATOCs is no longer allowed.

    The rest sounds like quibbling about distinctions that do not make a difference, but rather than be so blunt as to reciprocally say you're wrong, let me elevate the tone and just say that I disagree on how to solicit and award new requirements in the context of these laws and their implementing regulations.

  8. Business Develop Capture Manager and Operations Manager went out to a cabin in the woods for a team-building weekend.

    After unpacking, they went for a walk in the woods, where they encountered an angry bear, who chased them back to the cabin.

    Capture Manager got there first, opened the door, and stepped aside.

    Ops Manager went in, followed by the bear, whereupon Capture Manager closed and locked the door, saying, "I got you hooked up with another one. Let me go out now and find the next one for you."

  9. It is difficult to fault Carl's logic, and more difficult to understand why this thread has moved to discussions of distinctions without differences, in tangents so far removed from the intent of the demonstration program and the reasons for its repeal.

    The first stated purpose of the demonstration program was to assess the ability of small businesses to compete successfully for designated kinds of work without set-asides. (Tangent: At least in the case of this IDIQ, they could not.) Other purposes included enhanced set-asides in targeted categories of work as detemined by agencies, and measuring the extent of awards to emerging small businesses while establishing a new kind of set-aside for these businesses. (FAR 19.003)

    The demonstration program was repealed by a law that expressed the will of the Congress, and expressed it fairly clearly, in order to give small businesses a better shot at competing for awards of new work. This from the Senate Finance Committee: "Removes the red tape and closes loopholes that too often put government work into the hands of multinational corporations instead of Main Street businesses." Here is what the SBA had to say: "The law eliminates the ?Competitiveness Demonstration? program, which limited opportunities for small contractors in 11 industries where they excel, such as construction, landscaping and pest control."

    The effective date was set and reached, so the repeal is now in effect.

    What is the effect of the repeal? It would not make sense to terminate ongoing delivery or task order work, but it seems clear that for any new work, the demonstration program is officially over.

    The authority to award new work under a contract vehicle created under the repealed demonstration program would seem to be directly contrary to the expressed will of Congress. (No more steel from Timbucktoo.)

    To do otherwise would not pass the red-face test. Imagine being called to testify in front of a congressional committee and being asked to explain why you awarded new work under a repealed program. All the finely nuanced arguments in the world would not sound reasonable, mainly because they aren't, imho.

  10. After scanning the FAC in question, it looks like the authority to award task orders under Subpart 19.10 is gone as of the end of the month.

    While looking around at the references, it struck me that there would not be a reasonable expectation that a "demonstration program" would last forever, and this one seems to have had a rather long life, considering that it was based on the Business Opportunity Development Reform Act of 1988.

    So, what to do? T for C? Or cop out: just not solicit any more work under the IDIQs and let them expire?

    It would make sense, at least to me, to deal with it now, be forthright with your contractors, and work with them to close out a contract while it's fresh, rather than letting it wither on the vine and working closeout when all your institutional recollection of the contract is gone.

  11. It's been a long time since I was a government employee, but a couple of things come to mind:

    The Contracting Officer should be able to rely on a properly completed and signed requisition; and should not have to verify, or be held responsible for the validity of, the fund cite provided by the bean counters.

    Also, there would seem to be a big difference between spending the wrong "color" money (especially by those who are told the money is OK to spend), and spending when there is no money at all.

  12. All the above advice is good stuff. To tag along with one of the early points...

    My $0.02 worth, after 36 years in procurement, subcontracts, prime contracts, and business management, is about the FAR (including agency supplements):

    When you are working on something, look it up.

    Every time.

    This will help keep you on the straight and narrow, and as a minimum let you ask intelligent questions and help give the impression of knowing what you are talking about.

    It is important to have a solid grounding in the fundamentals and topical guidance to give you a sense of the proper direction, so you don't, as my father used to say, get on your horse and take off in all directions.

  13. "Too bad doing 'the right thing' and ethical behavior isn't covered in the FAR"

    Oh, but is is, although few seem to know. See FAR 1.602-2( b )

    Part 1 of the Federal Acquisition Regulation (singular) is Federal Acquisition Regulations (plural) System. (inconsistencies? sometimes they are only superficial)

    Subpart 1.6 is "Career Development, Contracting Authority, and Responsibilities".

    1.602 is "Contracting officers."

    1.602-2 is "Responsibilities."

    1.602-2( b ) reads, "Ensure that contractors receive impartial, fair, and equitable treatment; and..."

  14. First, a suggestion to overcome this forum's quirky handling of parentheses and emoticons: Put spaces after a leading parenthesis and before a trailing parenthesis so the letters between the parentheses are not converted to emoticons or a copyright symbol. There are other ways, but this low-tech approach works for me.

    IMHO you have overcomplicated this, to the point that the question is not clear. Here is what I think is one of the answers.

    After 15.404-3( a ) talks about how the contracting officer must consider what the prime or higher tier sub has done to establish the fairness and reasonableness of the price of the subcontract action, the last sentence reads, "This does not relieve the contracting officer from the responsibility to analyze the contractor's submission, including subcontractor's cost or pricing data." OK, so we have established that the Government must perform some form of analysis of the subcontractor's proposal.

    Continuing to 15.404-3( c ) ( 1 ), "The contractor shall submit, or cause to be submitted by the subcontractor(s), cost or pricing data to the Government for subcontracts that are the lower of either -- ..." etc. Now we have established when subcontractor cost or pricing data must be submitted to the Government.

    Looking at 15.404-1( a ) (3), "Cost analysis shall be used to evaluate the reasonableness of individual cost elements when cost or pricing data are required. Price analysis should be used to verify that the overall price offered is fair and reasonable." At this point the FAR has told us what form of analysis is needed. It has to be cost analysis, not just price analysis, if cost or pricing data are required. The level of detail of the cost analysis is a matter for judgment, but it has to be more detailed than broad-brush price analysis.

    One area of confusion in the post is the attempt to read FAR Subpart 15.4 as requiring the prime contractor to do anything. Since I got into Government contracting in 1974, I have yet to see FAR Subpart 15.4 incorporated by reference into a contract. The parts of the FAR that apply to contractors are the parts within the four corners of the contract, usually clauses from Part 52. Yes, this includes portions of FAR Subpart 15.4, but only those portions called out in the applicable clauses, 52.215-12 and -13. The references in those clauses include the threshold for submission of cost or pricing data at FAR 15.403-4, exceptions under 15.403-1, and the certification form in 15.406-2. The rest of FAR Subpart 15.4 is guidance to the Government that is arguably not binding on contractors or subcontractors.

    The clauses are fairly clear that cost or pricing data are required from the sub to the prime (or higher tier sub) for any subcontract action over $700,000 (the current TINA threshold), unless an exception applies (also note that a couple of key exceptions start "When the contracting officer determines that..." which means the prime has a duty to get a reading from the contracting officer before assuming it's OK to rely on the prime's determination that there was adequate price competition or prices were set by law or regulation).

    In summary, if the subcontract action is over $700,000 and no exceptions apply, subcontractor cost or pricing data are required, and cost analysis is required by the prime. If the value of the subcontract action meets the higher thresholds in 15.404-3( c )( 1 ), cost analysis of subcontractor cost or pricing data is also required by the Government. Presumably the Subcontracts clause from 52.244-2 would kick in here as well, depending on how its blanks are filled in.

    Oh, and if the prime or higher tier sub cannot get cost or pricng data from the lower tier sub, a unilateral change order to direct the work, with no prospect of payment until cost or pricing data required by the clause (and the statute), are usually effective motivators.

    Maybe some older and wiser than I have a different view, but that's how it has always looked to me.

  15. For the sake of discussion, although time does not allow me to research the guidance in the kind of detail that many on this forum do, let me share some thoughts.

    Contractor purchasing systems can range along a broad spectrum from commercial best practices tempered by FAR principles, to virtually incorporating the FAR and borrowing its forms and formats. Being something of a renegade, I lean toward commercial best practices tempered by FAR principles, with an adequate but minimal paper trail that is enough to satisfy an outside reviewer that what was done makes business sense and does not fly in the face of what people with some federal training would think is the right way to conduct business. I strongly resist the tendency to use company procedures comprising a purchasing system to narrowly define, by form or template, every single minuscule required step of every required process, or every process for handling every business situation that might arise, although I do recognize that such things tend to increase the comfort level of reviewers and auditors. Taken to the extreme, a contractor would simply write up a purchasing system that looks exactly like the FAR.

    My orientation is more of the grunt in the trenches who wonders why we have required ourselves, through our company procedures, to do all this work that seems to add more cost than value, and wonders why the Government hired our company to do things more efficiently if we set up our procedures to be just as inefficient as the Government's.

    Co-workers remind me that this is Government work, and the Government will trip over a $20 to pick up a penny.

  16. This explores previously uncharted territory: a claim based on the agency not following a regulation that is not within the four corners of the contract but is nonetheless binding on the agency.

    In other words, is a contractor entitled to rely on the agency to follow the agency's rules, even those outside the contract, and to claim if the agency does not follow those rules?

    Looks like COFC has placed some important guide posts in that previously uncharted territory.

  17. So far, looks like ARRA goes to the top of the list, at least in the consternation and confusion department, mainly because it applies not only to federal contracts but also to any contracts with ARRA funding regardless of contracting authority: state or local government, boards, districts, universities, etc.

    If you think there are training and reporting problems for federal agencies to comply with all this ARRA stuff, just think about the impact on those folks who are unaccustomed to such requirements.

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