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REA'n Maker

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Everything posted by REA'n Maker

  1. I was saying both business processes lead to the same result, never suggested sole-source wasn't allowable (I asked "why do it" if it's not necessary), and deliberately didn't cite regulations and statutes because that wasn't my point. I'm also not following the "regulatory bureaucracy I am creating" comment - there's no bureaucracy created by following 36.6 without exception. If your point is regarding the SBA aspect, that's a wash either way, correct? It would be cleaner if we were not involving SBA, but that's the same for everything else in Federal contracting so why should this be any different...?
  2. Yet another reason to just follow 36.6. Put out your public notice regarding submission of SF-330's restricted to 8(a), evaluate them, rank them, negotiate price with the top ranked guy, and award. The first 3 steps are essentially what you should do (informally) to properly support a sole-source J&A anyway. Both processes lead to the same result, but only one constitutes competitive procedures. Neither procurement involves competitive pricing, so C or P data requirements are a wash. Sole-source Bad; Competition Good!
  3. Subpart 36.6 leads you to negotiating price with the (sole) source deemed most qualified, same as the sole-source/JEFO process*. Why waste time and effort on the competition exemption process? (*assuming we're talking about 6.302-1 as the justification)
  4. Would you say it's appropriate for the government to engage with the new contractor during the limbo between award and PoP start date? Or is the presumption that the vendor do all the planning and preparation and hope for the best? Every transition I've been involved with requires government involvement and approval. Can the new awardee engage with the existing vendor when planning their seamless continuity of services? Seems kind of pointless otherwise. 99% of government contracts are not awarded early and yet all the stuff you mention happens anyway. i.e., "early award" is clearly not required for proper transition planning. Where is the data that suggests otherwise? Conjecture or not, contractors taking any action related to a contract with no coverage is a risk. And when they file their claim the Government will be on record as tacitly encouraging them to incur those costs. Is it reasonable to assume all these actions can be accomplished at no cost? [* The rationale I've seen so far reads like a "parade of horribles"]
  5. Yes, but what on that list is in the Government's best interest? "Beating PALT" is administrivia, "closing the protest window earlier" doesn't make a protest less likely to occur (and there is pretty much 0% chance a protest would be resolved by the start of the PoP anyway), "Enabling current TO to utilize any remaining funds on the current contract and minimize doing a De-Ob" has nothing to do with an early award, and "providing the contractor more time to plan" is pure conjecture and begs the question of unauthorized pre-contract costs. So, my question still stands. For the record, my point was more existential in nature, as in "every CO should ask themselves this question as Step 1".
  6. There are many, many reasons that an experienced professional could imagine where it might not make sense to have a space of time before date of award and the start of the performance period.
  7. This scenario would also be somewhat applicable to an option exercise ("is there such a thing as exercising an option too early?"). What if your awardee ends up on the SAM/PPIRS naughty list between award and start of the PoP? What if their SAM registration expires before the start of the PoP? The FAR requires a CO to check SAM for exclusions immediately before award (I was dinged in an audit for checking SAM the morning of the award, which occurred later that afternoon.) The obvious intent is to make sure you're not awarding to an ineligible vendor. "They were fine when I checked them 2 months ago" won't fly. What is the upside of awarding early? Of all the posts on this topic I have yet to see anyone justify why it's in the best interest of the Government to award months before the start of the PoP (e.g., for supplies, supply chain lead-time might be a justification).
  8. The requirement for the CO to accurately assign NAICS codes isn't just limited to OASIS (FAR 19.102(b)(2)(i)). How that could apply to anything other than a task order/call is a mystery, but this is SBA we're talking about.
  9. PII is not an administrative issue and likely would involve multiple, high-level agency reviews and approvals. That's a heckuva' last-minute add.
  10. Did it have CLINs in it or any other indication of how pricing was to be submitted? If so, then it is definitely not the worst solicitation in the history of procurement. That honor would go to an RFP released by a former 1102 "colleague", who, after wearing down his paper-thin reputation here to the lowest level possible, got a job at another agency, only to find he couldn't pass the CO competency exam. For the same job he held for the prior 10 years.
  11. Absent any specific prohibitions in the RFP, past performance as a JV member is often treated much like past performance as a sub. Just make sure the relationship hierarchy is clearly explained and that it's clear what part of the work you did.
  12. I really like the idea to eliminate the decision itself as grounds for protest, if for no other reason that the current system is based on the premise that two parties can be forced into a contractual relationship without regard to the will of one of the parties. No one outside government would ever consider such a preposterous concept. The goal of a protest is to win the contract in question, not "increase confidence in the system". “The threat of protest has valuable regulatory effects; it both deters and corrects inappropriate awards” Nonsense. How many actual "inappropriate awards" have been deterred by the protest process? In all of my reading of GAO decisions, I have never seen an award that was deemed anything other than "incompatible" with the forest of laws, rules, regulations, directives, policies, clauses, provisions, and random thoughts of program and policy offices which comprise the basis of the Federal contract award process. If a protest has ever actually uncovered malfeasance, I'd like to see it. "increasing bidders’ confidence in the integrity of the procurement system" More nonsense. A protest is the weapon of the lawyered-up, entitled, corporate entity with the resources to engage in prolonged litigation. One more advantage for the big guy. If the one granted the CICA stay is the incumbent as they almost always are, protests do the exact opposite of increasing confidence in the system. "increasing the public’s confidence in the integrity of the system," Get over yourself pal; the public has no idea what GAO does or doesn't do. (And I'm not sure who you think is talking GAO up to the "public" because it sure ain't me.) "He artfully characterized the costs as “real" Unlike the billions of dollars raked in over the years by undeserving incumbent contractors as the result of frivolous CICA stays? (who by the way have no incentive to do a good job while working under a stay).
  13. When I was a contractor PM, much of my day was consumed by documenting and reporting the activities of my team. Even though we were under an FFP arrangement, the fact Government CORs are apparently only able to count butts in seats compelled me to treat it like a cost-type effort (drove me nuts, but a topic for another day). The Government is like the biggest elephant in the world: slow-moving and clumsy, but it never forgets. I knew certain (incompetent) contractor PMs who would smugly believe they didn't have to report anything because they were so awesome and the client loved them and doesn't want a report anyway, only to have to retroactively document 2-year-old activities when they got caught in an audit. No matter how often I told them the monthly report was actually for us (the contractor) they didn't believe it until they got burned firsthand.
  14. Two words: Covid clauses. Truly the most bass-ackwards attempt ever to shove a political litmus test down our throats in the form of 'procurement policy'. I'm still waiting for the explanation of how unelected bureaucrats were able to make going to work illegal - my agency actually gave me a "freedom of movement authorization letter" in 2020 (because we were special, AKA, "good enough for thee but not for me").
  15. Are you talking about modifications citing the Changes clause as the authority, or any modification? My point is that cost-type contracts are modified all the time after they are physically complete (not necessarily under the Changes clause).
  16. Other Than Firm Fixed Price (CPFF, etc.). Also see FAR 42.705.
  17. How do you handle a final rate determination on a physically complete OTFFP contract?
  18. Maybe I should limit that comment to the CICA stay, which is a huge incentive to file a protest regardless of merit. The incumbent can make way more money continuing to bill for a month or two on a $100M contract than they will ever spend on a protest. All they have to do is ask and viola, CICA stay, and the money keeps rolling in! (I have to say; I got a good laugh out of Vern's post regarding approach. So true. Everybody uses it as a key term in solicitations and evaluations, but the implication in common English is that to approach something is a precursor to actually doing something. "OK, now that you've approached it, what do you plan to do when you actually get there?" 🤔😄🤣)
  19. Just got my first protest, from someone not even in line for award. But that still means a CICA stay and hundreds of hours charged by lawyers and others on a protest that is going to ultimately fail. The only one who wins is the pre-award incumbent (and the protestor's attorneys of course). How about mediation as the first avenue of a protest? I realize GAO is a pseudo-mediator but they are still a bureaucratic government agency with all the attendant baggage and sclerotic timelines. Or, maybe a more formulaic ("hurdle") approach whereby protestors would have to demonstrate competitive prejudice, standing, etc., before they are even allowed to file a protest. I do agree that the current system incentivizes protests and is wasteful and expensive. It seems we are more focused on avoiding protests than providing sound business advice.
  20. I think treating issues related to public-sector procurement as business problems is a fallacy. Public grants and contracts are used as political tools like no other, and contract reforms have never addressed how to balance business considerations with the 800 lb. socio/political gorilla on the other end of the see-saw. (But maybe I'm too cynical after having just sat through a 2-year pre-award SBA size protest.) Does any 1102 disagree that if we used purely economic/business logic, there would be the same three ginormous conglomerates winning every single federal contract?
  21. I think the practical answer is 'no':
  22. I agree with Vern Edwards that the GAO (not 'the courts') decision regarding the -8 clause is ridiculous and should be ignored. (In regard to Latvian Connection, GAO stated in effect "we don't know if we have the authority to ban a contractor from protesting, but we're going to do it anyway". GAO is by no means a court of law.) I wouldn't be surprised if that decision was written by a summer intern or someone of equal understanding. It's an extension of the end date at the rates in effect at the time the extension option is exercised; that's it. No offeror could possibly be disadvantaged by the exercise of 52.217-8. (Unbalanced pricing is already a criterion that can justify not making an award, which is the only possible discriminator in the "-8 evaluation" scenario). DHS policy literally says to "evaluate by adding" which no sane person would ever defend as a logical process in any other context. It doesn't even require you to compare it to or justify anything. Considering that the -8 can be exercised at the end of any contract year, why is adding the last option year pricing to your so-called "evaluation" valid anyway?
  23. So the issue is how to claw back funds? Based on my recent experience obtaining my FAC-C Level III (after obtaining my DAWIA Level III in the late 90's) I'm shocked anyone could do a bad enough job providing training to get themselves effectively terminated. The FAC-C training providers weren't even presenting the correct subject matter and could have cared less when informed of that fact (e.g., teaching and testing DFARS/DoD PGI and the proper use of WPN funding to an audience of DHS employees, among other patent absurdities).
  24. Exactly. Has nothing really to do with the FAR per se. A good CO would certainly consider it as part of a risk assessment associated with a decision, but it's not something the CO can invoke as an authority to direct a contractor. Unless the application of Christian is crystal clear with some relevant precedent, as a CO I wouldn't even go there at all unless there was a sound legal opinion to back it up (because it's a legal issue as CC points out). The Christian Doctrine is very narrowly applied for good reason. How about down-scoping the contract to match what has been delivered, de-obligate excess funds, and Bob's Your Uncle?
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