Matthew Fleharty

12 hours ago, here_2_help said:

What is the purpose of a PoP, if not to signal contract completion to the parties? Why is it important?

Let's note that "PoP" is regularly misused in place of more proper terms such as "delivery date" or "completion date" (your original post was not specific as to if this was a supply, service, or project) - I have seen many a contracting practitioner worry or fall prey to a contractor's claim that they could not continue to work beyond the contract's "PoP" and, in some cases, improperly extend the "PoP" without any consideration. The reality is that the contractor could continue to work and that their delivery or completion would just be considered late (based on the "PoP" dates established by the two parties in the contract). An expiration of a "PoP" is not a license to stop fulfilling one's contractual commitments - just consider how a contractor might feel if the government chose to stop paying invoices once a "PoP" ends because it allegedly signals contract completion to the parties...

@formerfed Talk about the pot calling the kettle black...This forum is supposed to be for the exchange of ideas and effective exchange of ideas in many cases requires us to challenge the ideas others present. If that makes you feel lectured to the point that you just say “I’m done” that’s unfortunate.

12 hours ago, formerfed said:

The Army chose to use the approach they did because of the anticipated benefits.  It had the scrutiny and approval at very high levels.  If you see faults, why don’t you offer your advice?

 This is an appeal to an authority which is a logical fallacy - there are plenty of DoD acquisitions that had scrutiny and approval at very high levels that were not sound and did not achieve the desired objectives...

1 hour ago, formerfed said:

If you think the Army is just doing paper essay writing, what do you think proposals are?

Exactly - that’s a major problem with the way acquisition professionals conduct competitions - instead of focusing evaluation factors on promises and an offeror’s capabilities that are more likely to predict their performance, we instead ask for fluffy narratives called “technical approaches” or “key personnel plans” or “employee management/retention plans” - none of which provide any value other than making the source selection team feel good about their decision because they liked what they read from the offeror.  Recommend you read Vern Edwards’ exceptional article “A Primer on Source Selection Planning: Evaluation Factors and Rating Methods” in Briefing Papers issue 17-8 - I think it is required reading for all acquisition professionals, especially those involved in conducting competitive acquisitions.

1 hour ago, formerfed said:

The difference is the prize competition pays vendors to do development that I assume the Army won’t get without some prize money.

I re-read the Army’s competition - it didn’t pay a penny for development...it Instead paid up to $5K for an idea presented on paper and up to $100K for an idea presented as a pitch, neither of which required the presenter to do any development (at least based on the stated evaluation method on their website). The recipients of that prize could choose to spend it on developing a ventilator based on the idea they presented...or they could choose to do literally anything else with it because I saw nothing requiring recipients to spend the prize money on ventilator development (unless I missed it). Assuming I didn’t miss that fine print, what makes that an effective approach to encourage small businesses and educational institutes to develop ventilators? I would think a more effective prize competition would be something like this: we’ll pay $250K to the first 4 small businesses or educational institutes who show up with a functioning ventilator prototype that meets these standards...

1 hour ago, formerfed said:

Yep, different set of rules and more importantly, different objectives.  The Army prize competition is encouraging development by promoting new technologies and innovations with monetary rewards.  SOCOM explained their competition isn’t looking for companies to do research and development of new things.  Rather it’s taking pieces of existing, commercial items and coming up with small, better, and cheaper devices by encouraging teaming and partnering among suppliers.  Crowdsourcing is a key tool.  They felt if there was a way to promote sources to get together and talk, that’s a win.

(Emphasis added above) - you say “different objectives”...why? To me the objective for both “ventilator challenges” is to get to more ventilators fastest to address the potential shortfall...did I miss something? Everything you detail about “promoting new technologies” vs. “taking pieces of existing, commercial items” are not objectives...those are means to an end (and if the means became the objective during a pandemic then that, to me, is the definition of taking one’s eye off the ball).

Anyone have any idea how the Army’s essay writing and public speaking contest turned out?

On 6/13/2020 at 8:14 AM, bob7947 said:

This appears very similar to the original post's subject matter.

DOD Ventilator Challenge: Innovative Response to the Nation’s Need for Rapid Prototyping.

Different team, different competition with a different rule set - looks like the one you posted @bob7947 focused more on getting prototypes than paper...a lesson for the Army, @formerfed, and @joel hoffman : all “innovative” acquisition strategies/procedures are not equal

My apologies that you felt insulted by my remarks, that was not my intention. I suppose we’re not going to reach a common understanding on this issue - I think the notion of “sparking thinking” is better done by asking for actual results/prototypes rather than ideas in the form of quad charts and pitches. Some doctor was able to do just that with parts from a hardware store ( https://www.usatoday.com/story/news/health/2020/04/07/coronavirus-ventilators-mississippi-medical-center-charles-robertson/2966719001/ ) probably for less that $105K too...

@formerfedDo we want ideas in a time like this or actual solutions? The article’s situation and where the Army could end up aren’t too different if you think critically about it - both selection mechanisms were based on proposals/sales pitches and no credibility related to previous experience or demonstration of an actual product.  I suppose others share the inability to see the similarity between the two which is way the prize was structured the way it was to ask for quad charts (for $5K) and pitches (for $100K) rather than actual products.

Recommend you check out the book “How to Make a Spaceship” which discusses the XPrize and a drastically different way for using prizes to actually deliver tangible innovations rather than just “very quick ideas.”  If you enjoy history, consider looking into the Orteig Prize which Charles Lindbergh won not by talking about how he would fly across the ocean, but actually doing it.

Just thought I’d share an example of my concern with focusing on paper/pitches of possibilities in times like these: 

https://www.nytimes.com/2020/05/08/nyregion/ventilators-fema-coronavirus-cuomo.html

12 hours ago, here_2_help said:

You're right. I didn't visit the website. However, let's look at the structure of the contest.

Part 1: $5,000 prize for selected participants. Not all participants will win a prize. Not all participants will advance to Part 2.

Part 2: $100,000 prize for selected participants. Not all participants will will a prize. Those that do win a prize will be invited (but not funded) to develop and demonstrate a concept prototype.

Total prize pool for Parts 1 + 2 (added together) will not exceed $1,000,000. Nobody will get more than $105,000 but many will not get that much. In fact, the maximum number of winners will be 9, 9 x $105,000 = $945,000. (I assume the remaining $55,000 goes to Part 1 winners.)

I'm okay with this. Again, most of the winners will be under the micro-purchase threshold and the 9 winners will still be under the SAP. Further, the procedures here are aligned with what the statute requires.

It’s not the amount of money, it’s what companies are getting money for - companies can earn $105K without turning a single wrench or delivering a single piece of product...as John Doerr says “ideas are easy. Execution is everything.”

Did you gentlemen even read the website?: https://www.challenge.gov/challenge/xTech-COVID-19-ventilator-challenge/

Prizes will be offered under 10 USC §2374a (Prize competitions). The total prize pool is $1,000,000.00.

• Application Part 1: White Paper - $5,000
• Application Part 2: Technology Pitches - $100,000

Number of winners is to-be determined, with total prizes not to exceed $1,000,000.00.

-----------------

Part 1: Concept Submission Quad Chart and Video All eligible entities shall submit a concept quad chart and accompanying video up to 3 minutes in length outlining their technology, the technical viability of their approach, human and clinical risk, and speed to production. Please adhere to the following requirements:

• All concept quad charts must be submitted using the template found on the registration page, “xTechCOVID19_QuadChart_Template.ppt”. Any proposals submitted in a format other than that provided by the template will not be reviewed.
• Please include on your quad chart your company name, proposal title, and company logo EXACTLY how you would like them to appear on any contest marketing materials.
• Provide an optional URL on the contest registration page to a video supporting your application. Production value does not matter at all, and the can be used to explain the concept, brief the quad chart, or to otherwise demonstrate the technology concept proposed. MAXIMUM of 3-minutes for the video’s length.

Part 2: Technology Pitches

Selected participants will conduct a virtual pitch to the Ventilator Challenge panel of Army, medical, and manufacturing experts. Detailed pitch instructions and evaluation criteria will be provided to selected applicants. Technology pitches selected to meet the requirements of this posted solicitation will receive a prize of $100,000 and will be invited to develop and demonstrate a concept prototype to potentially receive follow on contracts for additional production and deployment.

On 4/22/2020 at 9:21 AM, formerfed said:

The Army is using a “game” process to buy ventilators.  They asked for brief papers (not more than 1,500 characters) describing how new lost cost ventilators can be developed.  Participants can also include a 3 minute video describing their solutions.  Winners will receive $10,000 prizes to develop prototypes.  One company will be selected for a $1 million production award.

Pretty slick.  We need more thinking and actions like this.

Based on my reading of the contest, all the Army is paying for is paper, not product...I think that’s the wrong focus in times like these.  Moreover, the selection criteria are suspect IMO - there is nothing that captures a company’s past performance or entrepreneurial experience (which I think is crucial for determining if an entity has any clue for how to turn a concept into a capability).  Basically, whoever wows the judges with their pitch gets $105K just to deliver papers and presentations.  Using prize competitions could be a step in the right direction, but I think they’re competing the wrong things.

Even if they do what you want, none of that information is a binding promise so it basically amounts to a sales pitch.  I don’t think either of us is going to convince the other of our respective positions - basically, you just want the contractor to tell you things that will make you feel good about your decision which I think is distinctly different than getting information that will help you make a better decision.

4 hours ago, formerfed said:

Every company has their own means and philosophy of producing working software.  How stories are gathered, epics produced, and backlogs worked are important matters.  That needs to sync with the governments.   Those aren’t promises or formal plans events.  Those issues are topics for oral presentations and verified as part of past performance.   

Why even evaluate approach as a separate factor when you can get the same information more accurately through a past performance and experience evaluation?

19 hours ago, formerfed said:

how a company plans on tackling the effort is important.

I’m with Don on this one - evaluating an approach or plan (particularly since most of them are not promises) is not only wasted time and effort, it actually introduces noise to the decision making process.

17 minutes ago, PepeTheFrog said:

Making up your own definition of a stand-alone contract and saying that task orders against IDIQ master contracts are stand-alone contracts is "contracting heresy." 

What is the source for your definition of "stand-alone contract"?

A former member of this forum was kind enough to give me some sage advice once: when the answer isn’t clear cut, interpret the regulation in a manner that gives you the most latitude/power.

19 hours ago, formerfed said:

Look at Carl’s second post at the start of this thread.  EDWOSB is not through another government agency.  The full exception language

Have you considered that the word "or" is disjunctive so that the "through another government agency" qualifier does not apply to the "from a specific source" language?

2 hours ago, C Culham said:

Essentially my simple conclusion is if you have to advertise the EDWOSB that is not sole source why would not have to advertise the EDWOSB that is sole source.

FAR 5.202(a)(4) reads "from a specific source" which means it only applies to sole source actions, not competitive ones - they don't have to follow the same rules/procedures. 

I agree w/ Confused1102 and Don and have nothing new to add to either of their explanations.

@Retreadfed Your posts are confusing this issue - I think you're either missing or ignoring the information provided by the OP and the piecemeal posting plus the pseudo hypothetical debate you're having with joel is not providing coherent information or advice for the OP.

14 hours ago, Retreadfed said:

So the contractor did submit current, complete and accurate data regarding the bond rate. 

Emphasis added above - how did you arrive at this conclusion?  The contractor listed the incorrect bond percentage of 4%...why are you considering that "accurate" cost or pricing data?  I think you need to reread the OP's clarifying post:

On 4/16/2019 at 10:15 AM, TheLaw said:

Here is the timeline:

The contractor submitted a proposal with the mistaken bond percentage.

The contractor then submitted certified cost & pricing data with the mistaken bond percentage.*

After award, when the contractor was submitting the bonds, it discovered the error.

*The bond percentage was shown in a "general requirements" portion of the certified cost & pricing data, so the Government never saw it here.

Also, clause 52.215-10 is in the contract.

I will have to look into the case law, it appears.

21 minutes ago, Retreadfed said:

You missed the point.  Joel and I were speaking of a hypothetical situation to demonstrate how cost or pricing data works.  In any event, we do not know what data was available to the contractor and at what point in time.  The fact that it may have used 4% in its proposal does not mean that defective pricing occurred.  As I have said before and the ASBCA in the UTC case, a proposal is not cost or pricing data.  Joel is assuming that the contractor knew what the bonding rate would be before the agreement on price.  However, we do not know that for a fact.  TheLaw has not been very clear on what the actual facts are.

Well no wonder everyone is talking past one another on this thread...

38 minutes ago, Retreadfed said:

The contractor disclosed certified cost or pricing data that was current, complete and accurate before award of the contract.  How can that be defective pricing? 

What are you trying to say here?  Clearly the contractor's cost or pricing data was not accurate as they erroneously used 4% instead of 0.4% for the bond percentage.

19 hours ago, PepeTheFrog said:

PepeTheFrog agrees with a bilateral modification based on mutual mistake.

This does not seem like a classic or provable case of defective pricing (in the term of art for federal contracting, not in the general sense of the two words "defective pricing"). Nobody will disagree that the contractor priced their proposal wrong (and that the pricing was "defective" in some way), but that is different from satisfying the elements of a defective pricing case.

Here is the DCAA audit guidance, according to Briefing Papers article, on defective pricing:

"(1) The information in question fits the definition of certified cost or pricing data. (2) Accurate, complete, and current data existed and were reasonably available to the contractor before the agreement on price. (3) Accurate, complete, and current data were not submitted or disclosed to the contracting officer or one of the authorized representatives of the contracting officer and that these individuals did not have actual knowledge of such data or its significance to the proposal. (4) The Government relied on the defective data in negotiating with the contractor. (5) The Government’s reliance on the defective data caused an increase in the contract price."

https://www.crowell.com/files/Litigation-and-Proof-in-Defective-Pricing-Cases.pdf

Numbers (1) and (2) seem questionable.

Why do you find (1) and (2) questionable?  If I understand the scenario:

On (1), the bond percentage did impact the proposed/negotiated price so it is cost or pricing data...aka a fact that one would reasonably expect to affect price negotiations significantly (the bond percentage is factual and verifiable which is how the contractor discovered it as a mistake).  The OP stated that the contractor provided a certificate of current cost or pricing data.

On (2) the correct bond percentage was available to the contractor before the agreement on price (they used 4% instead of 0.4% because of a typo).

Did I miss something?

On 4/11/2019 at 10:48 AM, TheLaw said:

Could the Government possibly use FAR part 15.508 for Discovery of Mistakes (which then references 14.407-4), to correct this mistake? I understand that those sections are used by contractors to rectify mistakes they discover (in their favor), but it seems like the Government should have some recourse in this situation. I've come up empty on my review, however, so any advice would be welcome.

Thanks.

Read 15.502 "Applicability" - while the subpart technically applies to competitive proposals it goes on to read "the procedures in...15.508...with reasonable modification, should be followed for sole source acquisitions..."  (Note: this is a crucial habit to learn - ALWAYS read the Scope, Applicability and Definitions [SAD] of any FAR Part/Subpart first).

I think the question at hand is, what do you think the right way to approach this situation is?  If the contractor was forthcoming with identifying the mistake and earnestly wants to rectify it, I don't know of a rule or regulation that prohibits you from doing so; however, if the contractor identified is not cooperating, I think you could make an argument for defective pricing to either encourage them to cooperate or else...

I would opt for the former vs either of the latter...a defective pricing battle is no way to start a contractual relationship (but if it is necessary, the Contracting Officer has an obligation to recoup the excess amount).

Odds are @NenaLenz is (or advises/represents) the supplier of the prosthetic that physician put on the prescription, but didn't receive the purchase order.

@jdm843 Recommend you read the Applicability section of FAR Part 6:

Quote

6.001 -- Applicability.

This part applies to all acquisitions except --

(a) Contracts awarded using the simplified acquisition procedures of Part 13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial items under Subpart 13.5);

(b) Contracts awarded using contracting procedures (other than those addressed in this part) that are expressly authorized by statute;

(c) Contract modifications, including the exercise of priced options that were evaluated as part of the initial competition (see 17.207(f)), that are within the scope and under the terms of an existing contract;

(d) Orders placed under requirements contracts or definite-quantity contracts;

(e) Orders placed under indefinite-quantity contracts that were entered into pursuant to this part when --

(1) The contract was awarded under Subpart 6.1 or 6.2 and all responsible sources were realistically permitted to compete for the requirements contained in the order; or

(2) The contract was awarded under Subpart 6.3 and the required justification and approval adequately covers the requirements contained in the order; or

(f) Orders placed against task order and delivery order contracts entered into pursuant to Subpart 16.5.

10 hours ago, Don Mansfield said:

1. Why would I have to cite an authority at all?

Because the form asks for one and due to poor workforce education programs, some reviewer is going to mark up the organization during an inspection for not citing an authority or citing the wrong authority (in his/her opinion).  That may seem silly, but it's the reality in many organizations which is why someone started this thread in the first place - they don't want to make a mistake.