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C Culham

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Everything posted by C Culham

  1. I am not going to wrack my brain but as I follow I have this quick thought. In applying FAR part 12 and noting it is common practice why would it not be a "no cost" contract and as dumb as it might sound not require a justification. I pose this thought with a subsequent question - Is not the value less than the SAT and as such a simple determination of reasonably available from one source and as zero value no need to synosize? I do not need feedback on this thought, just something I thought I would throw out there for consideration.
  2. At my age I do have difficulty grasping the "pure" virtual environment so I admit that my response to the second question is biased. I do not think an individual can develop and learn contracting in a "pure" virtual enviroment. Communication via human interaction is the issue. While there are many tools in the virtual environment that assist in communication I still believe to this day that my knowledge, skills and abilities were enhanced by face to face communication. Communication face to face with mentors, peers, bosses, etc. on the agency side and with contractors at their offices, job sites, and in other environments (such as USACE partnering). There is "that something" that is gained by human interaction and "that something" is very important to the contracting business in my view. #IYKYK
  3. My first thought is what does the contractor think/intend? Or in other words ask the contractor why the one order is not "in" their package.
  4. You may want to do some research on "Open Source Software" (OSS). It might fit your situation.
  5. Sort of in my view. Others have already opined. Here are my thoughts. First I emphasized your post. Remember the allowance for options is "period" therefore any period you want to specify. Second, and here is where I depart from others just a little. Considering FAR 17.204(b) which says "(b) The contract shall state the period within which the option may be exercised." and the wording of FAR clasue 52.217-9 I would massage the clause (remember it by prescription only has to be substantially the same) to indicate that the option to extend is through April 30 but performance is to April 29. I say this as to me performance and contract "period" are two different things. Or in other words you are exercising the period of the contract with work to take place during certain times within that period. I have offered this thought as I just wonder if the period ends on April 29 is there any contract to exercise on May 1? At least this is the way I did it when it came to staffing contracted look-out towers for the Forest Service. After thought - Also the title of clause 52.217-9 is "Option to Extend Term of Contract"!
  6. I was out and about for a few days. The continued discussion has filled in the gaps for me and touched on your question. I am good if you are. Otherwise you have raised some interesting followup on my own. Cyber is an interesting "word"----cybernetics, cybersex, cyberspace, cybersecurity, cyber bullying, cyber Monday and the list goes on.........
  7. No indepth research to support this thought. Could it be an era thing? The FAR is relatively new, maybe as a hot topic the FAR uses it in the new era more than other regulations. Yes, probably a dumb comparison but I bet the FPR did not have a lot of cyber in it.
  8. I suspect the case cited here and the conclusion of the discussion still applies.
  9. Hmmmm, Too little too late? I notice the original post was supposedly made on March 6????
  10. What I was saying is you are mixing business processes. FAR 5.202 8(a) sole source is an exception to public announcement. Further per SBA policy a 8(a) is not to be "competed" within certain thresholds. So just following FAR 36.6 is not the same as following FAR 19.8 for a sole source.
  11. Now I have not seen the full audit, just the report but I think this seems reasonable? First this quote from the report - "To identify what DOD procured with 8(a) contracts over the stated threshold, we used the North American Industry Classification System codes." With footnote 9. Then footnote 9 - "9This system assigns codes to all economic activity within 20 broad sectors, and the codes reflect the industry in which the firm operates, e.g., wireless telecommunication carriers or industrial building construction." Then this quote again from the report (as already noted) - "The top five products and services under contract were engineering services; other computer related services; commercial and institutional building construction; administrative management and general management consulting services; and computer system design." If you look up each of those 5 specific catagories, each is the title of a specific NAICS code with "engineering services" being 541330. 541330 states this - "541330 Engineering Services This industry comprises establishments primarily engaged in applying physical laws and principles of engineering in the design, development, and utilization of machines, materials, instruments, structures, processes, and systems. The assignments undertaken by these establishments may involve any of the following activities: provision of advice, preparation of feasibility studies, preparation of preliminary and final plans and designs, provision of technical services during the construction or installation phase, inspection and evaluation of engineering projects, and related services." Reference - https://www.census.gov/naics/?input=541330&year=2022&details=541330 I think my post is right on becasue of the 105 contracts I got to bet that not only were 541330 Engineering Services procured but that some if not all of the engineering services met the guiding principles of FAR 36.601-4 otherwise they would have been classified with other than 541330.
  12. formerfed - I think the pendulum swings boths ways. I knew of one agency office, rather large office, where the standard was that a CO would process only CPARS ratings that were a satisfactory rating. This internal policy was and still may be practiced I am not sure. I imagine the worst in scenerios when thinking that the primary objective for the creation of performance ratings was for the purpose of selecting future contractors to perform future contracts. Pity the contractor that excelled only to get "satisfactory". Or worse yet pity the poor agency that somehow selected a future contractor based on a "satisfactory" rating but contractor actually failed miserabley on the past contracts with the agency. Why you might ask did the agency do this? Exactly fits the conversation they were risk adverse and satisfactory took the easy way out. Voyager - Now this may not come out right but I would offer the disparity is not the source it is how the source is used in the evaluation process.
  13. The discussion reminds of when I was with USACE and supervised the CPARS staff before the system went to government wide use. I was also reminded of this which took me a couple of minutes to find. It suggests via its verbage and references there is no problem if the agency uses its discreation wisely. You might want to take a read. To make it quick go to "When". https://www.gao.gov/assets/a117381.html
  14. NO! Why? You are confusing statutory allowance and authority with regulatory bureacracy that you alone are creating. There is no regulation to support what you have suggested. What one should do is consult with SBA and their agency experts to do it. While the USACE believes there is a conflict and that view is adopted by some there is no case law to support the premise. In fact, as I have already provided, I can not find nor have I seen in this and other discussions on the matter of 8(a) sole source A-E where GAO opined on the matter. It seems quite the opposite to me. Case in point is the following is taken from the referenced GAO document. I added the emphasis. DOD awarded 105 sole-source 8(a) contracts on or after March 17, 2020—the date that the increased threshold was implemented—which reflected an increase over prior years. These contracts were all over $22 million and up to $100 million, and thus did not require the justification. Additionally: • Half (50 percent) of the 105 sole-source 8(a) contracts were awarded to firms owned by Alaska Native Corporations; 32 percent were awarded to firms owned by Indian Tribes; and 18 percent to firms owned by Native Hawaiian Organizations. • The top five products and services under contract were engineering services; other computer related services; commercial and institutional building construction; administrative management and general management consulting services; and computer system design. https://www.gao.gov/assets/gao-22-105567.pdf
  15. While I agree with Don I suggest you keep this in mind when you get the CO's response. FAR 4.804-4(a)(1)(iii).
  16. The question might be....will the judicial venues seek input regarding their implementing regulations?
  17. I am guessing the OP has moved on. Yet, I am compelled to respond for the good of the order. As an aside to anyone reading this thread I urge a read of the Forum discussion thread I linked from 2014 entitled “A/E and 8(a) Sole Source?” As it was then and is today, while the USACE has an agency policy regarding 8(a) sole source for A-E services, there is no authoritative reference that provides that 8(a) sole source for A-E services is otherwise not permitted. A reference to FAR 19.804-2(a)(10) is a reach as it is provided out of context. In my view “for consideration” is not an imperative that the contractor so designated “shall” be the awardee. A full read of FAR 19.8 (and 13 CFR 124) will support that SBA (as the prime contractor by the way) has full discretion to determine (and agree to) the selection of a firm for a sole source need. I think that for an A-E SBA will assist in selecting an 8(a) A-E (sub)contractor in a manner that is not in conflict with the Brooks Act. I think this is true as the SBA process has not be found to be in conflict with the Brooks Act through any authoritative decision to my knowledge. In support of my view USASpending.gov provides in excess of 3,500 actions related to A-E 8(a) sole source have occurred since FY2014 for NAICS codes 541310, 541330, 541360, & 541370. To @Where did I leave my FAR copy my question still stands. A response would help assist in providing direct comment on what processes you would like to bypass or you otherwise find as a road block to using 8(a) for the need.
  18. I think the Brooks Act, the FAR, 13 CFR 124 and agency partnership agreements with SBA with regard to 8(a) procurements do not prevent but accomodate an 8(a) sole source single award IDIQ for A-E services. It is complicated to unravel so rather than providing an essay that supports my thinking I offer the following references. https://www.sba.gov/document/support--sba-and-agencies-partnership-agreements 13 CFR 124.503(f) - https://www.ecfr.gov/current/title-13/chapter-I/part-124/subpart-A/subject-group-ECFRd1e9fd1d2f2a3ac FAR 16.504(c)(ii)(a) - https://www.acquisition.gov/far/part-16#FAR_Subpart_16_5
  19. I think a CO's obligation is to settle and not fight as supported by the guiding principles already mentioned - FAR 33.204. Added is FAR 1.602-2 "...contracting officers should be allowed wide latitude to exercise business judgment. ..." In my personal world my business judgement is to consider associated costs of a fight or settlement, government contracting should not be any different. Why not back off, again it is something that is done in the real world. Outside of my government activity, and with siginifcant organizations, backing off has occurred with regard to litigation. My comments also highlight for me a slight disagreement with Don's comment regarding "as a taxpayer". Again at the personal level it seems I can always find something productive to do if I am not engaged in a fight and I would hope the same is true to some extent with regard to the $50,000 regarding a dispute, it could be spent on something worthwhile. The $50,000 will get spent and I truly hope on something good. I know a pie in sky as the Federal government has plenty of places besides fighting disputes to run through my tax dollars.
  20. I can not help myself as this reaches into my vivid memories when I was a Contracting Officer. My "I think" response to the questions is bolstered by the memories and I offer this. I think that a CO in such a situation has, or at least I hope so, invovled others most especially legal counsel (a reliable person?) for advice and counsel. What I may think as a CO as just is not always looked at the same by others within the bureaucratic world. The memories.... Almost the exact situation but involving hundres of thousands of dollars where pursuant to the advice of the Judge Advocate Generals office the difference of $50,000 was settled on after I as the CO walked out of negotiations (mediation if you will) after the issuance of a final CO decision. Walked out only to have the JAG attorney follow me and have a strong conversation about a deal rather than going to court over a $50,000 difference. At issue, I as the CO had evidence, I thought strong evidence, that the contractor in submitting a certified claim had misrepresented factual cost information. A matter that the JAG office was not willing to pursue as in the end the amount was not "large enough" to warrant efforts of litigation on the claim and misrepresentation. And... A contractor who, as discovered by a state agency, was cooking the books on their state accident insurance payments. Essentially almost all of the effort was related to contracts awarded by one Federal agency. And those contracts were negotiated contracts. As much as I hate to say it think 8(a). Upon discovery the matter was also referred to the US Department of Justice with a specific and detailed response from them that while criminal intent was present (with regard state law but Federal laws of fraud related to contracting matters and 8(a) regulations) the dollar amount (calculated at a low 7 figures) was not large enough for their office to consider handling and left it in the states hands. To my knowledge the state through criminal charges never recouped the money as their abilities to extradite from a foriegn country were nil without the assistance of the Feds. Two events in my career that opened my eyes how money is valued when it comes to bureaucratic processes.
  21. Expanded information beyond that already requested might help as well. So are you saying that the agency prepared an abstract of offers and the particular procurement was not an "unclassified acquisition" and not construction as well?
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