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Everything posted by Steward_of_the_Taxpayer

  1. Is it "A Guide for DoD Program Managers?" It's not a WIFCON post but the document talks about "Driving the Financial Bus/"
  2. ipod, I completely understand the morning fog... I'm really curious about why you can't use an IDIQ. Ordering off an IDIQ acehieves the same results as exericsing an option, especially if you have the item you're procuring priced on the base IDIQ. Also, you can issue an order on an IDIQ that has options. Joel, in response to your comment, "It appears that this "class J&A" would be used for orders from one firm." I think what defines a 'class J&A" is dependent on the agency. I couldn't find any specific definition of a class so that means we would use a common dictionary defintion (for 'class J&A', good luck) but FAR 6.304© states, "A class justification for other than full and open competition shall be approved in writing in accordance with agency procedures." For me that's the Army. The DFARS does not talk to class justifications but the AFARS clearly defines a class justification for Army folk. See AFARS 5106.303-1(d) "A justification approved on a class basis authorizes the award of two or more contract actions using other than full and open competition. Provided that it complies with the requirements below, the justification may encompass identified contract actions for the same or integrally related supplies or services or other contract actions that require essentially identical justification. A justification made on a class basis— (i) Is not limited to a single contractor; (ii) May cover contracts for non-permanent requirements to be awarded in successive fiscal years, provided that the requirements and quantities are included in the Future Years Defense Plan, and their costs have been specifically identified; (iii) Must address every contract included in the scope of the class justification in each paragraph, in detail (e.g., specific quantity and dollar amounts for each contract; detailed documentation of the circumstances supporting the use of other than full and open competitive procedures for each contracting action); and (iv) Must include only those supply or service components that are, and will clearly remain, sole or limited source for the period covered by the justification."
  3. Your post is all over the place. It seems like you're not comprehending the things that you are reading/referencing, but I hope this will help get your thoughts organized. First, "DOD Class Justification are Used Primarily for Acquisition of Weapon Systems and related Components" from the GAO report is one of the key findings from GAO's analysis of the DOD's Use of Class Justifications for Sole-Souce Contracts....so the referenced material leading to that conclusion is in the two and a half pages following that heading. "Taking in this consideration of using the term Sole Source Justification… is there such a thing called Class Sole Source Justification. The only place I have found where there is even a mention of “Class” Justification is under FAR 6.303." ...your first question was on a GAO analsis of the "DOD's Use of Class Justifications for Sole Source Contracts"...it seems pretty obvious that justifications approved on a class basis exist. And to your final question about your plan: It depends. What are your agency/local requirements and process for obtaining a class justification for sole source contracts approval is? You need to consider this, the total number of aniticpated contracts and the anticipated dollar value of each of your potential contracts to determine if pursuing a class justification is a better path than getting a sole source J&A approved for each contract. If the dollar value of each individual contract is at a level where the KO can approve the J&A, would it be worth the effort to get one class J&A at a higher level of approval when in accordance with the FAR the contracting officer must still document the contract file to ensure that each contract action taken is pursuant to the authority of the class justification and approval is within the scope of the class justification? You should re-read FAR Part 6, then the DFARS, your agency supplement, etc. all the way down to your local policy to answer this question for yourself.
  4. Right here. ^ But Vern, it's clear we are just not going to agree! I'm not sure why a task order that was awarded using LPTA on a CR contract type is not applicable to this debate? What exactly is the difference? 16.5 only precludes 15.3 and we are not debating 15.3. I don't see how that case does not apply. Many of us in the business today are well aware that the same concepts of FAR Part 15 are used in these large MACs that have tens to hundreds of contractors and compete million dollar specialized services and supplies not very differently than a "formal" FAR Part 15. Your posts appear pro-tradeoff and I'm not going to instruct any customer of mine to pay a premium or as you allude to "do something more difficult than LPTA" if they find no value above what they define as the minimum acceptable criteria. I don't see how, eitherway, LPTA or tradeoff eliminates the risk of cost overrun. Reduction of risk comes though cost realism based on an offerors unique approach and thoroughly managing and administrating the contract post award to target costs. The Government is not obligated to pay overruns. LPTA on CR works. Have you ever heard the phrase, "Don't knock it till you try it?"
  5. I'm questioning case law because you said LPTA CPFF violates case law in your posts. Where does it violate case law? By successful, I mean without sustained protests, without cost overruns, with successful performance and satisfied customers, to name a few. Because it's a cost type contract, we automatically take on risk. We eliminate that risk by completing a thorough cost realism analysis and closely administering the contractors to target costs. This is not a contract type that is chosen for convenience, quite the opposite. Nothing about cost contracts is an administrative convenience but maybe that's why these other people have the overruns you're mentioning and we haven't had them. LPTA is a form of best value per the FAR. Our criteria for LPTA is when the customer is not willing to pay a premium above what they define as acceptable which would be the point at which we begin trading off if were a best value tradeoff. I don't want to confuse source selection procedures with contract type. The key in this arguement is ensuring the cost realism is done correctly and that the Government manages the contractor to the proposed target costs post award. The argument isn't if you can or can't do LPTA on a cost-reimbursement because you can and it does work. You're assuming that these cost overruns are because of LPTA. I've never had one overrun. If you can provide fact as to why LPTA cost reimbursement does not work or actually results in overruns more than tradeoff, I'd be glad to change my mind. For now, I'll go off the facts I know and the extensive experience I have.
  6. I am aware that ACC has been successfully using LPTA Cost reimbursement for years. How does awarding based on lowest price violate case law or 15.404-1(d)(2)? Here's an example of LPTA CPFF term where cost realism was challenged and denied: http://www.gao.gov/products/B-409147,B-409147.2
  7. Don, What other definition of price do you suggest we use? Vern, I don't disagree with you that awarding a cost-reimbursement contract based on lowest cost proposed can encourage unrealistically low prices. But that is why the customer has to set their minimums appropriately and why you have to complete a through cost-realism analysis. For examples, you should look at the Army Contracting Command.
  8. I appreciate the discussion and differing opinions and points of view. However, 15.404-1(d)(3) is not discussing cost type contracts and it's not about LPTA. It's about cost realism on fixed-price contracts and not adjusting those types, which makes sense.
  9. Why can't it? Where does LPTA say it can't be used for cost type contracts? Price is defined in FAR 15.4. “Price” means cost plus any fee or profit applicable to the contract type. Additionally, 15.101-2(a) says "...technically acceptable proposal with the lowest EVALUATED price" and ( also says "evaluated" it doesn't say proposed price, it says evaluated which assumes it would allow for adjustments? And yes, I know of many LPTA cost-reimbursement contracts that are very successful. And has been the practiced for the last 4 years.
  10. I know I'll get my head chewed off but I disagree. I think people fear LPTA when it is a great tool and should be used more often when a customer can't define what they are willing to pay a premium on. The definition of acceptable or unacceptable should have the same definition whether it's trade off or LPTA. Unrealistically low prices can happen on trade off. It's all dependent on the offeror's approach. That's what cost realism is used for.
  11. I don't think it's that goofy. If the Government is asking for personnel to augment a Government staff and can only define the work in terms of tasks but do not dictate how the tasks need to completed and don't know how long the tasks will take or how many tasks will be completed, then CPFF sounds right. LPTA is just the methodology used to find best vale.
  12. I'm confused.... was the work that required the subcontractor in the PWS at solicitation? If your company knew that the expensive specialized subcontractor was required for the work in the PWS, why didn't you propose that subcontractor? Was the mandated LOE mandated in your contract? Or was it provided with the solicitation for evaluation purposes? Did you question the accuracy of the LOE at solicitation? The additional and more expensive personnel, are they more expensive because you're using different labor categories than the mandated LOE or because the rates for labor categories are higher than what you proposed?
  13. While it is tempting to join in on the dissection of humor, I'll agree with Dingoes and share a humorous anecdote that definitely applies ONLY to contracting: While negotiating data rights on a sole source major systems follow on development contract, I was listening in on a call between our agency's IP attorney and the contractors attorney a couple days before Christmas that wasn't going well. They were debating whether we needed to negotiate individual individual lines of code. Our attorney stated that the individual software files were the lowest practicable segregable level and since they were developed with mixed funding at that level, the Government was entitled to Government purpose rights for the files. The contractor's attorney was getting heated and countered that different lines were developed using different funding so we should be looking at each line. Our attorney acquiesced and started to list the lines where the Government challenged the contractors assertions that the modified lines were developed at private expense (our IP attorney is a superstar). The contractor's attorney got really angry and proclaimed that he wasn't qualified to speak to each line of code, that would be just ridiculous, and that each line was inconsequential on it's own anyway. Our attorney said, "Fine, then we'll take Government Purpose rights for the whole file." The contractor's attorney was getting belligerent at this point going off about how he didn't have the people in the office to support this conversation with the holidays. The whole conversation got nasty since we has been trying to resolve this for the better part of a year. Welet the contractor choose the date for resolution after they took 6 months to respond to our initial request for assertations, they choose the end of December for resolution well aware that most people are out of the office for holidays and then they scheduled multiple meetings they weren't prepared for, wasting Government time. Our attorney and I started to remind the contractor that the terms and date of resolution was clearly laid out in the contract they signed and we would consider them to be in volition of the terms of their contract if not resolved. In the middle of the debate as to whether the contractor was truly making a best faith effort to resolve, the contractor's attorney exclaimed, "I'm really starting to question the Government's motives here! It's like you have some sort of scheme that you're working behind the scenes! I mean, it's almost like the Government has a secret agenda to try and open this work up for competition in the future!!" To which I responded, "I wouldn't really call that a 'secret agenda,' more like the preferred method of acquisition for federal contracts." The rest of the conversation went quickly down the drain and we had to reschedule a call for when the contractors tech team could be present. The resolution of this story came about a week later. The day of the deadline (no time set) it was clear the contractor wouldn't make the deadline, I sent the contractor a letter of concern that afternoon telling them if we didn't have an updated list from them by midnight, we had provided all of our necessary notifications to our higher ups that we would be issuing a cure notice first thing in the morning and it would be noted on their CPAR. Four hours later, they gave us rights to all the files. Dingoes, I'd really like to hear that joke about the octopus and bag pipes. If you PM it to me, I'll share with you my go-to joke from high school about the pirate with the steering wheel down his pants which is probably too mildly inappropriate to share with the general public.
  14. Thank you all for the great input, you helped fill in a few gaps and have given me some things to consider for the future. I found my answer, not in the ordering procedures, but in the PWS for the base: "The Contractor shall provide a Proposal Plan to the Procurement Contracting Officer...." Looks like I'll be focusing my attention to lowering the price for direct proposal prep on the task orders.
  15. "These follow on costs are related to this effort and should not have to be shared by the company's customers." This is a valid point, I hadn't thought considered in that way before but as I mentioned before this is one of the top defense contractors. They have a segment which is devoted entirely to defense purchases of this nature. The name of the segment includes the type of systems we purchase in its name. Considering this, I don't think it's unfair to have these costs charged indirectly to a pool. Negotiating proposal prep and the fee associated with it, takes additional time and results in additional costs to the Government. I am new to the program and, with out ideas of excessive grandeur, I would like to start turning this around. I'm trying to work out if maybe instead of fighting the battle against the amount we're being charged directly, we should be fighting against being charged directly at all.
  16. There is no where in the previous contract that requires proposal for a follow on. And you are correct in assuming this is not a long-lead. I'm giving deference to the DCAA auditor at this time because I am not the KO on this action. I have to convince my KO to go against what DCAA says, this will not be easy since there are multiple KOs on multiple parts of this program and others in our organization that have been allowing direct charging on new contracts because it is a follow on. I should probably also clarify that this is an IDIQ. The first task order has already been issued and we have paid excessive proposal costs associated with the base on the first TO. I was not part of those negotiations. But I do not want to continue paying proposal costs on the following task orders for a contractor that does not respond to Government requests in a timely manner. I know they're going to try to charge us on the following task orders but my FAR definition of a contract includes task/delivery orders and as long as those task order contracts do not exist yet, I see no reason for us to pay proposal costs.
  17. Here's the situation: I am working on a very large system development program with one of the top defense contractors. Because this is sole source the contractor has been direct charging proposal prep on all new contracts. I do not like this and the size of both the program and the contractor means that these costs really add up. I've looked into proposal prep/B&P indirects as much as I can. I've looked at FAR 31.205-18(a), CAS 9904.420 and it's qualifier CAS 9904.402-61, I've read and re-read the Shay Assad Memo from 2011 on Direct and Indirect Charging of Contractor Proposal and Negotiation Support Costs. I've reviewed some GAO cases and I've reviewed the contractor's disclosure agreement. My understanding from the Shay Assad Memo and CAS 9904.402-61 is that unless a contract exists then the Bid and Proposal Prep must be charged to a pool. The contractor's disclosure statement agrees with this. However, I run into a problem because it is a follow on acquisition. My understanding does not agree with the auditor from DCAA who tells me, direct charging on new contracts under this program is allowable because they are all follow on. I requested a reference where follow on was defined in terms of CAS and his explanation was essentially that since the system acquisition is in phases, the existence of a contract for one phase requires proposals for the next phase. I know of only the one concrete definition of follow on that someone else referenced in one of the other discussions by GAO at http://www.gao.gov/assets/150/144237.pdf (page 26 the footnote): “Follow-on contract” means a new, noncompetitive procurement placed with an incumbent contractor, either by a separate new contract or by a supplemental agreement, to continue or augment a specific military program, where such placement was necessitated by prior procurement decisions. An example is a contract award for production of a major weapon system to the contractor that developed the system when award to any other source would result in substantial duplication of cost to the government that is not expected to be recovered through competition. This agrees with what the auditor is saying but I don't think this agrees with the actual text of the Memo and CAS 9904.402-61. And if the existence of one contract requires the proposal for another contract then why doesn't the first contract allow for the proposal prep for the second contract? Anyway, does anyone know if this interpretation, I'm getting from DCAA is standard across the board? Should I give up the fight for proposal prep to be charged indirectly and focus my attention to keeping down their direct charges instead?
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