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Fear & Loathing in Contracting

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Posts posted by Fear & Loathing in Contracting

  1. If I requirement was previously competed and no further competition is required to award follow-on work, is this new follow-on work now considered non-competitive? Or is it an extension of the prior competition?

    Example A: FAR-based follow-on production contract derived from a successful (and competed) prototype OTA. 

    Example B: FAR-based Phase III SBIR for production following a prior competitive Phase I SBIR. 

    Identify the actions as either competitive or non-competitive will have a major impact on approval levels. 

  2. 4 hours ago, C Culham said:

    FAR 17.103 - Multi-year contract means a contract for the purchase of supplies or services for more than 1, but not more than 5, program years. A multi-year contract may provide that performance under the contract during the second and subsequent years of the contract is contingent upon the appropriation of funds, and (if it does so provide) may provide for a cancellation payment to be made to the contractor if appropriations are not made. The key distinguishing difference between multi-year contracts and multiple year contracts is that multi-year contracts, defined in the statutes cited at 17.101, buy more than 1 year’s requirement (of a product or service) without establishing and having to exercise an option for each program year after the first.


    Here is the start but a read of 10 USC 2306b may help as well........"(a) In general. --To the extent that funds are otherwise available for obligation, the head of an agency may enter into multiyear contracts for the purchase of property whenever the head of that agency finds each of the following:....."

    thank you- yes I have read through these- and since we are buying more 6 1/2 years worth of a requirement at one time and there are no options- sure looks like a multi-year contract to me. When I raised this with my supervisor, he said no way it was multi-year since it was not approved by Congress. I went to the Policy folks at HQ and they agree with me... but then legal came back and agreed with my supervisor. We are all at a loss at this point and are open to some other opinions hahaha!

  3. Is anyone aware of the existence of any studies connecting the adjustment of key variables in the source selection process to improvements in acquisition outcomes? After digging around, so far the only one I was able to find was a DEC2015 NPS report entitled, "RELATIONSHIP OF SOURCE SELECTION METHODS TO CONTRACT OUTCOMES: AN ANALYSIS OF AIR FORCE SOURCE SELECTION." It is actually very good and useful; but it would be great if there was any more out there. Also- is anything like this being pursued as a research topic at any traditional universities? In other words, are there any non-DoD/Agency schools out there pursuing this in a traditional economics department? Operations Research? If done properly and comprehensively I could see the results of research such as this saving a lot of money and time- while improving performance.

  4. This is an ACAT program so requirements are are controlled via the JCIDS process. As this is to be a production contract, its requirements must be driven by an approved CPD, which in this case is an Army CPD. The USMC requirements trace back to specs that they are sending to the Army PM folks who then blend it into their docs and then say- no impact on our stuff- ok.

    And since we are talking about several 100 M here, with USMC covering a bit more than half- they of course want to be part of the source selection process. Specifically, they want folks on the eval boards. Further complicating things is the PM wanting multiple contractor support folks to be part of the evaluation team. I aggressively fought this until I met them- and they really do know this system far better than anyone else..

    In regards to NDI status, folks higher up on my side have told me- even though whoever won the award would most likely have to do some development work to handle the major USMC driven config adjustment, as long as we do not contract with them for this development work (and they wrap up in their price) then it is OK and we it is still an NDI. True? Make sense?

    There is a lot of pressure on this puppy and from many angles. Some are really pressing collaborating with the CORP (helps you make full bird...lol), others are freaking out when they hear about USMC level of involvement on a non-joint program, some want to shove this into a NDI status, others are very concerned that we might lose an offeror with the config change in, and there is a very limited pool of offerors- so if even 1 drops out we could very well end up in a sole source scenario. We have been trying to get PM out of sole source mode for 5 plus years now... so this would be a major set-back...  

  5. I am an Army Contracting Officer in charge of the source selection for the production of an Army system. Since it always looks good for the program management folks to reach out to the other services (demonstrates you understand the “big picture”), this has occurred. In this case, the USMC wants to “be part of the procurement.” On the contracting side, it has always been our position to attempt to accommodate where it makes sense and when it does not jeopardize our core objective of meeting the Army mission. Now in the current situation, the participation of the USMC is considerable. Their desired portion/impact has the following characteristics: (1) They would be getting about 55% of the produced systems; (2) They would be providing about 55% of the funding; (3) About 20% of the specifications are not shared between the Army and USMC, so the USMC systems would require adjustment; & (4) A small but critical portion of the USMC systems would require a major configuration change. Some other important factors: The Army has based its decision to move ahead with this acquisition based on the system being COTS or an NDI. This is not a designated joint program and there is no formal agreement between the Army and USMC (no MOA exists). There is also a question as to whether the major system configuration change desired by the USMC falls under COTS or NDI.

    As an Army contracting officer, I want to do the right thing and best serve the Warfighter (which includes marines). We are very much encouraged to do this. Alternatively, this is not just adding on a few extra systems for the USMC; this is slightly over half of the procurement. I (we) have already sketched out numerous legal/ regulatory pitfalls, etc., but I do not want to influence anyone.

    What does everyone think about this? What are some ideas on how to best resolve?

  6. On 5/14/2017 at 6:13 AM, joel hoffman said:

    I can't tell from the OP whether the contractor would have agreed at the time or what the government's "business decision" was not to. 

    Clarification: The contractor would have agreed at the time of the original award to provide the increased rights, but the price would have been much higher. The customer business decision balanced the price (at the time) against identified benefits and made the business decision not to purchase the increase rights.

  7. 16 hours ago, Neil Roberts said:

    Did you assure yourself that there are no data rights clauses included in the prime contract (FAR 52.227/DFARS 252.227, etc) that already makes going from Restricted to Unlimited as in-scope?  

    There are multiple software and data rights clauses on the prime contracting including DFARS 252.227-7013, 252.227-7014, 252.227-7015, &  252.227-7027. I have been particularly focused on DFARS 252.227-7014(b)(4) "...may be modified by mutual agreement.." How though does this solve the scope issue?

  8. The following scenario pertains to a major system that is in the final stages of a "smart" shutdown and its related primary development contract. The original large sole source contract was awarded 3 years ago. A critical system component is a piece of software that the contractor asserted as exclusively developed with IR&D funding and having Restricted Rights. At the time, the Government made the business decision to accept the software with these rights. Since then, the program has been placed under Smart Shutdown and the contractor and PM have had some conversations on purchasing the sofware with Unlimited Rights (for future spin-off systems use). The cost to the Government for these improved rights is about 10% of what had been roughly quoted back at the time of original contract award. The projected "purchase" price of these increased rights is about 2/10th's of a percent of the overall contract amount.

    Bottom Line Question: Can these rights be increased through the use of an in-scope contract modification? Would this supplemental agreement be within the scope of the original contract?

    Additional Key Factor: We are running out of time on this shutdown system (we are in fact on borrowed time). I am being told that I will "probably" need to do this as an out-of-scope mod, thus will require a J&A, etc... all time killers. Are they correct? What is the point??? This change will not change the function of the system (in it's remaining days), the dollar magnitude is negligible, this is the only time anything like this was done under this contract (so no cumulative impact), and it does nothing to increase the complexity of the contract. Lastly, whatever the rights were at original contract award- there would have been no impact on competition as this was sole sourced.

  9. On 4/21/2017 at 10:12 AM, Vern Edwards said:

    A broad agency announcement (BAA) might work, depending on what "embryonic requirement" means. Their use is limited. See FAR 35.016(a):

    Emphasis added.

    The term "embryonic requirement" was probably not the best choice of words. I meant to convey that it is very early in the source selection process. The requirement is actually "moderately mature." It is for a configurable software solution that serves to integrate/coordinate/co-configure capabilities across a family of systems. Most of the family member systems are either in the last steps of development or sustainment. Even "moderately mature" is a bit of a loaded term. The PM group (who is driving this RFI) has been designated as the "Trail Boss" leading all the systems groups that need to be pulled under this system-of-systems requirement. So one can imagine with all these competing pressures- they are having their challenges.

    Thanks for all the great input everyone. It is very helpful and appreciated.

  10. RFI. It basically asks about whether your SW can do X, Y, Z, etc... and then asks to elaborate on certain aspects of the SW. Responders submit a white paper & fill out a supplied grid chart. RFI has since closed and there were more than a dozen respondents. Customer now wants to "evaluate" the responses and "down-select" to no more than 3. These 3 will be invited into a lab setting to demo their SW. Based on lab results, observations, SW performance capabilities/limits, etc... the customer will then use this info to help flush out/adjust the requirement. 

  11. I am a DoD KO serving a major system customer. They've been living in large sole source world since before the dawn of time. After several years of prodding, they have finally started wading into the land of competitive source selections. Well, long story short, we issued an RFI for a somewhat embryonic requirement, it is about to close, and it looks like we will be getting anywhere from 6-12 responses. Then tacked onto the end of a multi-topic customer e-mail, was something to effect of: once the RFI closes we will then "evaluate the responses", and then "perform a down-select to the best 3," and then "invite those 3 winners in to do demo's." At this point I just sat there staring at the screen...

    Has anyone ever heard of such a thing?

  12. Thank you VERY much Vern. All of the above is extremely helpful, especially the process guidance such as this:

    22 hours ago, Vern Edwards said:

    Basically, you develop tests for specified key performance parameters and instruct offerors about how you'll run the tests and how to set up their facilities for testing; who, what, when, where, how stuff. You need to establish some procedural rules. You incorporate the results into your proposal evaluations. The tests can be either pass/fail or head-to-head competitive for the best score.

    And even more so this:

    18 hours ago, Vern Edwards said:

    I recommend that you refer to the test as a system verification demonstration, not a field test.

    You will need the following from your customer: a system specification, a test specification, a test plan, and a test protocol for how you'll deal with competing offerors (lateness, second chances, etc.) You'll also need language for your RFP Section M

    I am looking through the GAO cases right now, and I can already tell they will also be quite useful.

    When you ask what questions/information I am looking for- it is just this sort of thing. Essentially, I am trying to get my arms around the process and get a bit more focused on the thinking part.

    As strange as it sounds, I have had challenges finding others near me who have ever incorporated a system verification component into the source selection process. At least where I am, the large systems world is dominated by a combination of enormous MATO vehicles (with plug and play cookie cutter task order processes) and large sole source contracts. We have also been subjected to perpetual turnover, which of course makes it much harder to obtain peer support.

  13. Correct. Offerors would set-up & connect into the system. Certain parameters & attributes would be quantified. The biggest challenges are: (1) the systems high performance sensitivity to environmental factors; (2) relatively tight award target; (3) rolled up nature of the system. It is being formed from multiple smaller systems that were originally sole sourced awards- so in a way there are two semi-"incumbents" likely to be the main competitors. Lastly, the customer has dwelled in sole source land for a very long time and this is one of their first major forays (commendable/we've been urging them...) into the competitive environment. 

  14. I am a contracting officer assisting in the planning of a source selection for an ACAT system. As part of the source selection process, the customer is adamant about including significant field testing as part of the evaluation process. The system is highly sensitive in that just about everything could affect its performance including weather, time of day, harsh language, etc. As to be expected, everyone on my end, especially legal, is worried about risk of a protest from the losing offeror.

    Any ideas, useful guidance, prior examples... anything would be helpful and appreciated.

  15. Quote: "Most COs, however, look at the FAR as a framework that is perscriptive, which is as it should be when applicable, but limits the ability for COs to look at problems differently and look for different ways to address them."

    When you take into consideration the sheer size and complexity of the FAR and its supplements- in order to function as a contract specialist one has to essentially live in this mental framework. Adding one little drop of drop of innovation (FAR 1.102-4(e)) into this sea of presciptive behavior has little effect.

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