InNeedofWisdom

What do you think about what Leonardo Manning at DAU has to say about TINA for DFARS? See the bottom of the second paragraph of https://dap.dau.mil/career/cont/blogs/archive/2014/05/12/title-41-changes-to-the-far.aspx.

If the potential subcontract(s) would be subject to TINA (TCOPD) and the prime contractor is denied access, the prime contractor should require the potential subcontractor(s) to submit certified cost or pricing data to the government [based on FAR 52.215-12(a)]. If your situation is sole/single source at the prime contract level AND subcontract level, obtaining certified cost or pricing data may not help you very much to negotiate a lower price. In DoD the prime contractor may request field pricing assistance from DCMA for a subcontract proposal, but may or may not receive back any details on why the DCMA price analyst recommends a lower price. There is not much the prime contractor can do in a sole/source situation without competition for leverage. Interestingly, the profit/fee negotiated at the subcontract level may be much higher than that negotiated at the prime level. Some government customers require the prime contractor to negotiate (reach price agreement on) all subcontracts in advance of prime contract negotiations (with subcontract award after prime contract award). That way the government customer can tell the prime contractor to go back and try again if the government customer does not like the subcontract price. Adequate price competition is the best way to get lower subcontract prices.

Alright, to lighten the atmosphere... I tried to look up the word "sultaneous" on-line. I think it might be a word in Hindi, but I am not sure what it means. Here is a link: http://dict.hinkhoj.com/words/meaning-of-SULTANEOUS-in-hindi.html

See the bottom part of the second paragraph in this DAU article. What do you think? It looks like 10 U.S.C. 2306(a) is going to stay "TINA" for DoD. https://dap.dau.mil/career/cont/blogs/archive/2014/05/12/title-41-changes-to-the-far.aspx

Is this for a DoD contract? If so, is DCAA reviewing your cost-reimbursement vouchers? I would submit to you that any DCAA auditor who briefed the contract and read the phrase "reimbursed at cost" would disallow profit on a CR CLIN. Also, I would venture to suggest that DCAA would at least consider filing a fraud report. You should talk to the contracting officer before you include profit.

I see your point. It seems like a small issue. The reason I brought up ethics is because Captain 2722 used the phrase " the right way " twice in the same paragraph. Maybe Captain 2722 is really asking, " What is the best way? " If so, Captain 2722 should have no problem sharing his thoughts and helping the contracting officer with whatever decision is made.

Here is some advice from someone that has handled the kind of issue you are describing in a good way and in a poor/bad way: 1. Understand exactly what you are being asked to do and whether or not you have an ethical issue, 2. Do not assume that you know all the relevant facts around the situation and don't be afraid to ask, 3. Do not expect anyone else to change because of your conscience (if there is an ethical issue), 4. If there is an ethical issue, do not think you are absolved because you do not sign the end product, and 5. Communicate to those around you if you do not feel you can do something in good conscience. If this is not an ethical issue for you, I would not worry about it and would just keep going. I hope this advice is an encouragement.

This sounds familiar. Let me give you a hypothetical example that may or may not apply to your situation: The sole/single source contractor for a DoD prime contract has reached an agreement on price with a sole/single source subcontractor subject to TINA. The prime contract is currently undefinitized, but will be FFP once negotiated. The negotiated subcontract will also be FFP, but is undefinitized pending negotiations and definitization at the prime level. The prime contractor is concerned that the government may not think its cost analysis was sufficient, and that the government might take issue with subcontract labor hours, number of trips, etc. So, the prime contractor wants DCMA to provide field pricing assistance (or DCAA to do a proposal audit, if the subcontract is big enough) to minimize the risk of a downward adjustment in the prime contract. The prime contractor wants a re-opener clause so that if there is a downward adjustment, it will be able to pass the subcontract cost of that adjustment down to the subcontractor. I hope this hypothetical example gives you some insight into what the prime contractor might be thinking. I can think of a less-positive situation that might be going on, but I hope what is going on is something like the above example.

Thank you for sharing these links. I found the following statement on page 4 of the ideo link to be very insightful:

Does "erroneously" equal conveniently? Was it an error to rely upon these definitions because FAR 44.101 should apply to consent and competition in subcontracting and not to T&M payment? Your conclusion makes sense, and I am trying to understand where the board erred.

I was about to suggest that balancing the federal budget could be a solution for too much procurement (spending) going on. However, the thought came that "likely" is perhaps the best synonym for your above use of the word "realistic". Balancing the federal budget does not appear to be a likely solution anytime soon, but if it was likely, I would probably have to find something else to do.

Yes

Yes, if there was only a bill of material that would be the logical way to calculate the cost of work to be performed. If there was more than a bill of material, it would be reasonable to aggregate the bill of material with the cost of the other work to be performed. Am I missing something about your question?

Yes, I can relate. I took algebra-based physics and not calculus-based physics. I don't remember very much beyond basic algebra from high school. I wonder how much of the problem is how the article was written versus the subject that the article was discussing. When people talk about cutting the deficit, they may or may not be talking about current spending levels. They may actually be talking about reducing how much future spending levels are greater than current spending levels (i.e. shrinking the "growth" in the budget.) Although, if the article (and the subject it is describing) was only talking about reducing how much future spending levels increase, I am not sure why defense contractors would be, "forced to compete on price." If current spending is steady, and future spending will be increased (just not as much as some would like), how would that force contractors (more than before) to now compete on price?

Funny Quote at http://fcw.com/Articles/2014/05/27/Deltek-contractor-survey.aspx?Page=2. If growth is velocity (speed), then "shrinking growth" would be de-accelerating (slowing down). But what if growth is actually acceleration on the velocity/speed of the federal budget (with distance being the size of the national debt), how do you "de-accelerate" your acceleration (i.e. slow down your speeding up)? Does anyone want to draw a vector diagram? The article concludes on a hopeful note for federal budgets that "growth" will stop shrinking and start growing. But how does this help companies and agencies be "smarter" about decisions? Who defines the concept of smart? Is it relative? If the whole system one day crashes and burns, who will be smart enough to determine the cause of the crash?

I do not understand the difference between operations contracting and procurement analysts. Are you talking about contracting officers in both categories? Is there a union to deal with in one or both categories? At places like DCAA the union makes a big difference in what changes can be made. The quality control review put in place in 2011 had to be done by Field Detachment (non-unionized) GS-12 auditors across the agency because the regular unionized GS-12 auditors would have given push-back if any regular unionized auditors had been given special status as quality reviewers. If there is any kind of union involved in one or both of the above categories, the process of leveling the playing field could be very protracted.

Thank You, Retreadfed.

If I understand this long thread correctly, the issue was about whom in the federal government has the authority to 1) Interpret a law and 2) Tell that "interpreter" when they are incorrect. That is an interesting issue. It appears the subject interpretation was (is?) broad enough to where the contracting officer could decide what they wanted to do anyway. Does anyone know the current status for the subject interpretation? I wonder if the GAO will challenge other interpretations where even the FAR appears to go beyond the statutory provision (e.g. "of-a-type" stand-alone commercial services).

I have a background in auditing. In college I had an assignment to look for an "adverse opinion" or a "qualified opinion". It was a lot harder than I thought it would be. My experience is that auditing is more of an engine governor than a speed limit. The client negotiates with the auditor about what is too risky. I am not sure of how my experience in auditing applies to past performance ratings in the government. The government may think a contractor could not be replaced fast enough. Auditors may also be concerned with a client leaving (unless more concerned about being sued). I hope the analogies help.

FAR 52.244-2 is the key clause. You need to look at FAR 52.244-2(d) to see if the CO made any special provisions. Provided there are no special provisions, your sister company should not have to obtain consent or advance notification based on FAR 52.244-2( c ). One way to think about it is like you have two purchasing departments at your single company. The government has approved one purchasing department to place subcontracts. But the government wants to review the work of the other purchasing department before placing subcontracts.

I don't know that we can exclude Him. I hope I am just as questioning of federal government fiat as you are. Whenever a government acts outside its God-given scope, it leads to real confusion (like federal procurement). I guess you know my profession now. Thank You for all your help, Vern.

That is true. There are some proverbs that may help as well (e.g. 'A soft answer breaks the bone', or 'By long forbearing a prince is persuaded.')

I think this may show why your user name is "Chip13". If you are trying to persuade someone to wait longer in getting their supply or service, or to invest in more of what they see as "non-value add", you have a hard case to make. It comes down to what their goals are and who they are serving. I think I read a post recently that talked about “legal fiction”. Fiat is exactly that unless people accept it and follow it. For example, fiat money is only money because people use it like money. I am thankful when people like you and Don are patient with those of us learning to think. As an aside, the Torah should have been an indicator to doctors that they should wash their hands. Whether an idea evolves over time or not, there is still design by God. Evolving ideas show how much people have caught on (or lack thereof) to what God has designed. Ask God for wisdom. God spoke and it happened. That is not fiat. When you talk about professionals thinking, it almost sounds like you could be talking about Christians keeping (watching, guarding) God's commandments. The real professional (Christian) will want to understand the "Why" behind the design.

Amen.

Dido