Matthew Fleharty

Whynot,

The FAR provides two separate definitions for each term (though the term you use of "commercially available" is used in the FAR as "commercially available off the shelf" (COTS))...see FAR 2.101 and FAR 12.103.  Are you asking about the distinction between those two definitions in the FAR or someone/somewehere else's attempted distinction?

I'm not here for one either H2H (which is why I've also tried to propose ways to make the current construct work better), but that quote of mine that you reposted is not synonymous with your scenario in point 1.  Read the two one after another...my example deals with them outright not holding the events - yours takes issue with the number of attendees (a point I didn't bring up). 

You and I are on the same page with respect to your comments in paragraph 3 - (see my first and second bullet).  We've even both stated that to encourage proactive behavior by the prime, one should consider the use of incentives.  So if you want to characterize me as missing the issues, go ahead, but I think our positions are more closely aligned that you're indicating.

9 minutes ago, JIR17 said:

Correct me if i'm wrong, but when a contracting officer takes a contract, they go down the list of FAR's and omit pieces that are irrelevant to the contract. For example, if a small business is the prime, the FAR that is requiring a sub-contracting plan, is no longer relevant. 

The contract is governed by the terms and conditions which includes the FAR clauses, but Contracting Officers have a responsibility/requirement to ensure "all requirements of law, executive orders, regulations, and all other applicable procedures...have been met" (FAR 1.602-1(a)).  In other words, a CO does not get to cherry pick the statutory and FAR requirements as they see fit - but clauses that are not applicable or required are not included.  In the example you mention, the FAR does not require a subcontracting plan for small business concerns (see FAR 19.702(b)(1)) so the resulting clauses are not required - why would they need to be? 

2 hours ago, JIR17 said:

That's exactly what I mean by trying to get a "requirement" put in. Right now there is no requirement to submit a sub-contracting plan at the moment, which means there's no real accountability for the prime to subtract work on any task orders.

What does this even mean?  The FAR has specific requirements for when a subcontracting plan is required and when it isn't.  Are you advocating that in situations where a subcontracting plan is not required by FAR 19.702 there should be?  Do you even know if the clauses I provided you previously are in the subject contract you're concerned with?

2 hours ago, JIR17 said:

You can't just rely on FAR to back you up, because not every FAR applies to every contract.

What does this mean?

H2H,

You seem to be putting a lot of words into my mouth.  At no point did I advocate holding the prime responsible for the number of attendees or imposing a "requirement" (still have no idea what this would mean) beyond the good faith effort standard.  What I took exception to were Pepe's remarks that the good faith effort was completely nebulous - I'll grant it can be, if the subcontracting plan is written poorly/broadly and contract administration is poor; however, the good faith effort standard can be made less nebulous by including specific standards and/or actions for the prime to take that are consistent with the FAR requirement to provide maximum practicable opportunity to participate in contract performance consistent with its efficient performance.  How is that missing the mark?  I'm trying to provide advice on how to make the current FAR construct/requirements work better rather than throwing up my hands (as it seems many would do in this case) and accepting that this is a completely futile situation...maybe I'm misguided in trying, but I'd rather try and fail than do otherwise.

24 minutes ago, PepeTheFrog said:

Those goalposts moved so fast, all PepeTheFrog saw was a blur! 

You're clearly hopping past posts then Pepe...refer to the one prior to your scenario and I stated " assessing the good faith effort comes down to reviewing (a) if the prime is meeting the subcontracting goals/requirements and if not (b) reviewing whether or not the prime is following the commitments/efforts to pursue small businesses as subcontractors detailed in the approved plan."  That seems to be consistent with my following post which states "the analysis of the good faith effort comes down to an examination of the subcontracting plan which includes actions that the prime commits to taking in achieving those small business goals.  If a prime fails to meet their goal a Contracting Officer should then review whether or not those actions stipulated in the subcontracting plan were taken to assess whether or not the prime actually made a good faith effort."

32 minutes ago, PepeTheFrog said:

What actions would you stipulate in the subcontracting plan?

There is no one right answer to this question.  As I'm sure you're aware, all requirements vary to some degree, but some broad examples could include:

• Designate a company official to administer/monitor small business subcontracting
• Specify procedures for consideration of subcontractors that maximize opportunities for small business participation
• Maintenance of subcontractor selection records demonstrating compliance
• Outreach or liaison efforts to seek small businesses

Depending on the requirement, the prime, and the small business opportunities potentially available (informed by market research) those requirements would be more specific (and should in order to enforce it properly when it comes to the "good faith effort" test).  For example, the prime could commit in the subcontracting plan to hosting annual or semi-annual outreach efforts for small businesses.  If a prime then chose not to or forgot to hold those outreach efforts and failed to meet their goals, one could make an argument that, based on the commitments in the subcontracting plan, the prime did not make a good faith effort.

1 hour ago, PepeTheFrog said:

The problem is not that the term is nebulous, but that the standard is easily met, especially given common language found in subcontracting plans.

Just because the plans are written poorly/nebulously and then approved by COs does not mean that they cannot be written with more appropriate specifics that then give the clauses teeth when it comes to the "good faith effort" standard.  Let's not forget, the overarching requirement is "maximum practicable opportunity to participate in contract performance consistent with its efficient performance" (FAR 19.702).

12 minutes ago, PepeTheFrog said:

Matthew Fleharty: PepeTheFrog is interested in possible solutions.

Would you explain how you would pursue liquidated damages related to a small business subcontracting plan?

Not by incessant whining that they didn't meet the goal % without any consideration of other factors which is what your scenario consists of.  If you'll refer to my previous post, the analysis of the good faith effort comes down to an examination of the subcontracting plan which includes actions that the prime commits to taking in achieving those small business goals.  If a prime fails to meet their goal a Contracting Officer should then review whether or not those actions stipulated in the subcontracting plan were taken to assess whether or not the prime actually made a good faith effort - the term may be nebulous in abstract, but it shouldn't be when there is an accompanying subcontracting plan.

36 minutes ago, PepeTheFrog said:

There is room for improving this situation, or solving this problem. But the solution is most assuredly not "Hold them to the subcontracting plan-- we already have liquidated damages provisions." Don't ask PepeTheFrog how PepeTheFrog knows this.

All I've heard are complaints - I've yet to see a valid alternative proposed.  I keep reading about this thing called a "requirement," but I still have no idea what that means, what authority a PCO has to do impose such a "requirement" (short of an approved deviation), and why that would be an overall desirable outcome for a contracting arrangement (let's remember that small business considerations are not the primary purpose for contracting...fulfilling the requirement/Government's need is).

Also, that straw man characterization of yours is not how I would pursue liquidated damages and ignores my previous remarks.

Even "requirements" of the subcontracting plan only require a good faith effort by the Contractor (based on the clause that governs it).  Part of assessing whether or not the prime makes a good faith effort to meet those goals or requirements of the subcontracting plan includes, but is not limited to, examining how efficiently or more effectively it (or others) can perform the work.  More broadly, the subcontracting plan stipulates the efforts that the prime will take in order to comply with the goals/requirements - assessing the good faith effort comes down to reviewing (a) if the prime is meeting the subcontracting goals/requirements and if not (b) reviewing whether or not the prime is following the commitments/efforts to pursue small businesses as subcontractors detailed in the approved plan.

On ‎11‎/‎30‎/‎2016 at 8:12 PM, joel hoffman said:

Matthew, I think that one of us is missing the most basic point.  The prime could state that it will self-perform the task order. That is the concern that JIR 17 has been expressing.

Technically, unless specifically stated in the task order or base ID/IQ contract, there is no requirement for a prime contractor to subcontract ANY work on a task order.  As far as I know, the government's goals for subcontracting to the various SB subsets are still normally expressed as percentages of subcontracted dollars, not as a percentage of total task order dollars. I looked up DOD's prime contracting  and subcontracting goals and I didn't find specific subcontracting goals for a percentage of total contracted dollars.

 

Joel,

I understand the concern - the way that subcontracting is specifically stated in the base contract is through the subcontracting plan.  Sure the plan has goals, not "requirements," but (a) the plan still has to be approved by the Contracting officer and (b) the Contractor has to make a good faith effort to follow it.  I know that Pepe has alleged that the good faith requirement is a low hurdle to jump, but I don't think that a Contractor could merely choose to self-perform any/all task orders and ignore the agreed to subcontracting plan.  It has teeth if agencies care about the subcontracting plan and proper contract administration.

I've still yet to see/hear of an alternative that would impose these so called "requirements."  What are they and where does their authority stem from?

1 hour ago, JIR17 said:

Because the  pitfall is the "good faith effort" aspect.  As Pepe mentioned, its pretty easy to jump over the hurdle and claim you made a good faith effort, based on very minimal evidence. If it is not a proposed requirement that will be evaluated, than its pretty much a useless condition. But if they are evaluated on it, than there is an actual repercussion for failing to comply, as it's a "requirement" and not a "goal"

You miss my point - they are evaluated on it in the status quo, both prior to award (establishing an acceptable subcontracting plan and even evaluating their past performance related to achieving small business goals) and during performance (via compliance with the T&Cs as well as through CPARS), neither of which establishes the requirement you seek.  Your only way around the "good faith effort" language under the required FAR clauses is a deviation (see FAR Subpart 1.4).

11 minutes ago, JIR17 said:

That's on my to do list for the day. I think they will be the best resource. The requirement would have to come from the agency's decision to include the % of task orders that are sub-contracted, as a major factor of evaluation on the contract. 

How is that substantively different from the requirement of FAR 19.702(a)(1) which requires that "the apparently successful offeror to submit an acceptable subcontracting plan. If the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer, the offeror will be ineligible for award"?  Subcontracting plans include a % of dollars that are to be subcontracted to various small business concerns.  That plan, short of a deviation, is then governed by the clauses already provided and, therefore, only requires a good faith effort...maybe I'm missing something, but I don't know how that proposed requirement is substantively different.

If an agency wants/needs to motivate small business participation, they could use  a carrot rather than stick approach by incorporating FAR 52.219-10 "Incentive Subcontracting Program" (refer to FAR 19.708(c)(1)) into the contract.

JIR17,

The way the Government holds contractors accountable is through terms and conditions in the contract.  Short of a deviation to the required T&Cs I've already referred you to, I don't know where this so-called requirement with teeth is going to come from or what it would look like.  Maybe a small business office or expert knows better than I do - have you tried contacting the SBA?

3 hours ago, JIR17 said:

Thanks for the recommendation, I'll check it out! 

The difference is that with a requirement, there are actual consequences a prime will see; whether it's not being considered for award, financial penalty, or bad feedback on their past performance scores. With a goal, there's no actual consequence.

I disagree - if a contractor does not show good faith in complying with the contract's subcontracting plan, there are consequences (breach & liquidated damages).

I'm not familiar with the requirements you mention.  I'm only aware of the statutory requirements outlined in FAR 19.702 (which are implemented contractually by the clauses I previously referenced)...(emphasis added below).

Quote

19.702 -- Statutory Requirements.

Any contractor receiving a contract with a value greater than the simplified acquisition threshold must agree in the contract that small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns will have the maximum practicable opportunity to participate in contract performance consistent with its efficient performance. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.

(a) Except as stated in paragraph (b) of this section, section 8(d) of the Small Business Act (15 U.S.C. 637(d)) imposes the following requirements regarding subcontracting with small businesses and small business subcontracting plans:

(1) In negotiated acquisitions, each solicitation of offers to perform a contract that is expected to exceed $700,000 ($1.5 million for construction) and that has subcontracting possibilities, shall require the apparently successful offeror to submit an acceptable subcontracting plan. If the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer, the offeror will be ineligible for award.

(2) In sealed bidding acquisitions, each invitation for bids to perform a contract that is expected to exceed $700,000 ($1.5 million for construction) and that has subcontracting possibilities, shall require the bidder selected for award to submit a subcontracting plan. If the selected bidder fails to submit a plan within the time limit prescribed by the contracting officer, the bidder will be ineligible for award.

(3) Each contract modification that causes the value of a contract without a subcontracting plan to exceed $700,000 ($1.5 million for construction), shall require the contractor to submit a subcontracting plan for the contract, if the contracting officer determines that subcontracting opportunities exist.

(b) Subcontracting plans (see subparagraphs (a)(1) and (2) of this section) are not required --

(1) From small business concerns;

(2) For personal services contracts;

(3) For contracts or contract modifications that will be performed entirely outside of the United States and its outlying areas; or

(4) For modifications that are within the scope of the contract and the contract does not contain the clause at 52.219-8, Utilization of Small Business Concerns. 

(c) As stated in 15 U.S.C. 637(d)(8), any contractor or subcontractor failing to comply in good faith with the requirements of the subcontracting plan is in material breach of its contract. Further, 15 U.S.C. 637(d)(4)(f) directs that a contractor’s failure to make a good faith effort to comply with the requirements of the subcontracting plan shall result in the imposition of liquidated damages.

(d) As authorized by 15 U.S.C. 637(d)(11), certain costs incurred by a mentor firm in providing developmental assistance to a protégé firm under the Department of Defense Pilot Mentor-Protégé Program, may be credited as if they were subcontract awards to a protégé firm for the purpose of determining whether the mentor firm attains the applicable goals under any subcontracting plan entered into with any executive agency. However, the mentor-protégé agreement must have been approved by the Director, Small Business Programs of the cognizant DoD military department or defense agency, before developmental assistance costs may be credited against subcontract goals. A list of approved agreements may be obtained at http://www.acq.osd.mil/osbp/mentor_protege/.

Why/how are those insufficient for your agency's needs?

Recommend you read FAR 52.219-9 "Small Business Subcontracting Plan" & FAR 52.219-16 "Liquidated Damages - Subcontracting Plan" to see if those answer your question.

Can you elaborate on the distinction you seem to be drawing regarding "goal" and "requirement"?

7 minutes ago, Zag2009 said:

Retreadfed, your explanation of CPPC contracts matches my understanding. 

In response to H2H's comment on applicability of FAR clauses to a prime contractor, I've always taken the position that prime contractor's are required to follow what is in their prime contract.  Therefore, if my proposed method of allowing for G&A to be reimbursed based on a fixed dollar amount for noncommercial subcontracts doesn't violate our prime contract or any statutory prohibition, what would grant the CO authority to demand that we follow the FAR sections related to T&M contracting?  Taken a step further, what would be the purpose of prescribing solicitation provisions and contract clauses if contractors had to follow it in its entirety?

Did you read the clause I referred you to?  You may have consent to subcontract requirements in which case the CO would certainly have such authority.

On ‎11‎/‎16‎/‎2016 at 0:30 PM, Zag2009 said:

Here's the thing: neither of the T&M FAR clauses referenced are included in our prime contract.

That's quite possible if the prime contract was not a T&M contract.  Is clause 52.244-2 "Subcontracts" in the prime contract?

DAS1220,

Read the clauses of your contract, specifically FAR 52.22-41 which should state:

Quote

52.222-41( c ) (1) "Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this contract."

So to answer your question, as long as your payments from April 2016 through September 2016 were IAW the wage determination attached to the contract at the time, no, you do not have to go back to April and adjust all the affected salaries even though the updated WD was not incorporated into your contract.

I rather enjoyed reading Gen. Mattis' remarks on the importance of reading...though (similar to Bob's comment about being "a world of 140 characters or less") I think we could also add writing to the list as well.

On 11/19/2016 at 4:55 AM, C Culham said:

So what am I missing?   In  this case the 4 corners of the solicitation and resulting contract govern do they not?  So how is the parent IDIQ allowing the purchase of commercial items?

Is it inconceivable that a contract for or including commercial items could be awarded with the wrong, non-commercial clauses?

On 11/22/2016 at 3:43 AM, Vern Edwards said:

I think the fact that a contract contains clauses for only noncommercial items makes a prima facie case that commercial items are outside the scope of the original competition. I do not think that the expectations or beliefs of the parties are proof against a protest that a purchase of commercial items is outside of the scope of the original competition. The question is: Did the Government expressly state that the prospective contract would cover both commercial and noncommercial items? The Government's unexpressed intent is irrelevant.

I think that the GAO might look at the synopsis, the solicitation, and the entire text of the contract when determining the scope of the original competition. But even then it might conclude that the parties wrote the contract for noncommercial items and thus commercial items are out of scope.

Fair point - I suppose I'm a bit jaded from seeing too many commercial contracts awarded using the UCF and wrong (non-commercial) clauses.  In the event that the description(s) of the supplies/services in the IDIQ included commercial items, I don't think the clauses (or lack thereof) would trump those description(s).  Given the information provided thus far, I guess we cannot make a reasonable conclusion one way or another.

1 hour ago, C Culham said:

So if the parent/umbrella IDIQ does not provide that TOs can be for both commercial/non-commercial items in any way could a task order issued under same be considered a change in scope? 

After all the contract could be considered to have been competed as for noncommercial services only and as such may not have met the standard of CICA?

Based on the facts provided by the OP, I don't think this is a reasonable assumption or pertinent to the discussion here.  We don't know the extent of what items/services may or may not be procured through the IDIQ, only the T&Cs that govern the resulting task orders.

As I read the issue, the problem is not that one is unable to procure commercial items through the IDIQ, but that if one were to procure commercial items through the IDIQ, the T&Cs would not include the appropriate commercial clauses.

17 hours ago, Vern Edwards said:

A contractor could agree to accept other clauses in an order, and if it did it would be bound.

I agree, to an extent - my remarks/concerns are for instances where those other clauses would conflict with the clauses in the IDIQ - in those cases, wouldn't that require a deviation to FAR 52.216-18 which states "All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control." 

I suppose this is just another example where an ounce of prevention is worth a pound of cure.

Theoretically, contractors should be more amenable to the standard commercial clauses versus any non-commercial counterparts (for example, consider in a commercial contract, all changes must be mutually agreed to IAW FAR 52.212-4( c ) whereas other Changes clauses, FAR 52.243-1 through 52.243-6, allow the government to unilaterally make changes to the contract).  Still, if a disagreement or dispute amongst the parties arises, Don is right that the basic IDIQ contract's clauses would govern in the event of a conflict, so I'm not sure how much use it would be to pursue incorporating commercial clauses when they could/would be overridden anyways IAW FAR 52.216-18.

Don hit the nail on the head with respect to the clauses so I have nothing to add there. 

You stated that the department's contracting officer said "the IDIQ contracts were intended for commercial and non-commercial use" - have you seen a copy of the ordering procedures?  It's doubtful, but there may be separate procedures/T&Cs for commercial and non-commercial items stipulated there.

3 minutes ago, Retreadfed said:

Would requesting that the discount be extended to all Federal employees be using public office for private gain by the contracting officer because (s)he now can take advantage of the discount?

Yes.