General.Zhukov

Can an offerors history of bad-faith protest somehow be considered during source selection? My basic very-much-not-an-expert understanding you'd have to pass two tests (note to the actual experts on wifcon, please correct me here) 1) you'd have to demonstrate how that is tied to your RFP's requirements/objectives, expected to a discriminator, and an indicator of best value. Basically, FAR 15.3. As @formerfed wrote, maybe... if you could reasonably argue what's evidence of an offeror having a propensity to file frivolous or bad-faith protests, and how that would be a negative. I think that is possible in some specific cases, but generally would be very difficult to do. 2) Isn't prohibited by law, policy, or convention (i.e., there is NO history of protest decisions effectively squashing what you want to do) See comment by @bob7947 My hunch is that you wouldn't be the first person to do this, and there is precedent ('case law' / protest decisions).

Bing (which is ChatGPT 4) has the answer: "I’ll try to explain in simple terms. The American Recovery and Reinvestment Act of 2009 is a law that provides money to help create jobs and improve the economy. If someone wants to buy something using this money, they have to follow certain rules. One of these rules is that they have to use a special form called “Alternate II” when they make the purchase. This form helps make sure that the money is being used in the right way. So, if someone wants to buy something using money from the American Recovery and Reinvestment Act of 2009, they have to use a special form called “Alternate II” to make sure everything is done correctly."

So I think this is true: GVT & you agree that they cannot require you to provide certified cost/price data. Rather than demanding certification, they are asking for it. That is, they want you to voluntarily certify the data you have already provided to them. Correct? If this is what's going on, the path of least resistance for you is to have the company owner (not you) certify the data and be done with it. Speculation: They are struggling to get to fair and reasonable pricing. This is unfamiliar territory for a lot of contracting folks - over-budget for a non-commercial product, from a sole offeror, who is a very small non-traditional new-to-the-DoD company. This eliminates the easy and routine ways to get to fair and reasonable pricing. They are down to the seventh and "final" price analysis technique (FAR 15.404-1 b 2 vii) - other than certified cost or pricing data. So what is normally a very straightforward and simple analysis is, in your case, unusually complicated and looks, at a glance, like it probably should have certified data. Some approving official unfamiliar with this complicated situation (mistakenly) skims the award docs, and kicks them back for missing the certification letter. Rather than push back against that official, CO is going path of least resistance, and asking you for the certification so they can add that single-page file to the package, change nothing else, and re-route for approval. We will never know, but that's my guess. Aside: "Final" pricing technique in quotes because the FAR explicitly states these are examples, not an exhaustive list, but in practice, its sometimes treated as an exhaustive list. Like everyone assumes a written pricing analysis MUST refer to one of those techniques. Or worse - I've seen a checkboxes for which techniques were used, and there was no box for 'other.' (This was not my office, btw)

As I understand the question, three facts: a contractor has sold your third-party software to the government, and your software is currently being used by a government customer. the prime has not paid you for the software that you owned, they sold, and is now being used by government. the licenses have expired, so the government users are in violation of something (probably the EULA) and probably not allowed to use it. Can I use these facts as leverage to get the contractor to pay me? Probably yes, however, I'm not a lawyer, certainly not your lawyer, nor will I be paying your legal fees. If I want to immediately cause a crisis, I would identify the government end-users and the cognizant contracting authorities and then notify them that use of your software must immediately stop. That will motivate them to discuss the issue with your prime. Or, if technically possible and even more crisis-inducing, just active the kill switch remotely without warning. A more reasonable suggestion: It is very likely that the contractor is in violation of some part of their contract with the government. You will probably need their specific contract to find out exactly what the contract states, and hence what part of the contract they are breaking. You can (probably) get that contract - speak to a lawyer about it. In the meantime, it's very easy to find other publicly available federal contracts that may be pretty similar - that cover third party software. This may help you get a general, generic, sense of what the terms and conditions are. These contracts have terms and conditions, clauses, and often a separate software licensing agreement- where the issue of third-party software is discussed. In there somewhere, you will find something to the effect of "You can't sell us third party software with expired licenses, and if you do, here are the bad things that will happen to you." ESI.MIL is probably the best source. But GSA, NASA SEWP, NITAAC and many, many, other federal civilian and DoD entities have these types of contracts available online. Add On: The FAR is not good about software. The FAR clauses that may apply to your situation are very broad, lacking important details, and I doubt you will find them helpful. However, there are layers of regulations and some of the second and third layer regulations ARE pretty good about software, particularly within DoD. If you know they government customer and can identify the applicable sub-FAR, you might be able to find some regulations/clauses that would be useful. For example, three levels of regs: 1. FAR (Everyone) 2. DFAR (DoD) 3. AFAR (Army)

The Red Book | U.S. GAO, Chapter 5. This will have your answers, probably. The rules are different depending on your situation. Do you have a multiyear contract? (Which is a special thing, not just a contract whose total duration inc. options is > 1 year) Is funding multiple-year appropriations? The contract is for severable services?

Thank you all, very helpful, I think I get it better now. As a US Army Engineer, I often dealt with little quick and unpredictable requirements that couldn't be reasonably priced in advance - so now seem suitable for an agreement - "We need 2-3 HAZMAT dump trucks to take all that contaminated soil to the remediation field. Range control says it's our fault, so won't do it for us, and won't clear us from the range till the stuff is gone, inspection is at 10 AM tomorrow so chop chop Captain." You have to negotiate price for stuff like this each time, but the terms are pretty standard (license & certs, mil escort on-base, etc.).

Help me understand these two concepts. Basic Agreement. Defined n FAR 16.702. A basic agreement should be used when a substantial number of separate contracts may be awarded to a contractor during a particular period and significant recurring negotiating problems have been experienced with the contractor. Basic Ordering Agreement. Defined in FAR 16.703. A basic ordering agreement may be used to expedite contracting for uncertain requirements for supplies or services when specific items, quantities, and prices are not known at the time the agreement is executed, but a substantial number of requirements for the type of supplies or services covered by the agreement are anticipated to be purchased from the contractor. I don't fully comprehend the purpose and use cases for these agreements, despite the plain words of the FAR. My contracting office never uses these two types of agreements, and I have no experience with them otherwise. I have a weak intuition that they are, like fax machines and public notice boards in the lobby, vestiges of a past contracting age. Are they used routinely somewhere in federal contracting? If so, please tell me more. What are they used for? Why an agreement instead of (among other things) a BPA, some indefinite contract, or one of the innumerable acquisition vehicles (GWACs, Federal Supply Schedules, federal-wide IDIQs, etc.) which cover nearly everything imaginable? A concrete example or two may help me.

Agreed. There is a goldilocks zone for mission-focus vs. technical focus when it comes to recruitment and retention. Contracting has a lot of expert knowledge and procedures which are most effectively handled with a centralized and separated (from program) technical-focused contracting office. The downside of centralization is that this type of office the particular mission doesn't matter that much, and in mission-driven federal agencies, that's a big opportunity cost. I think of NASA. 'Join NASA and help build space telescopes!' is much more compelling than 'join NASA and audit cost-plus contracts!' On the other hand, many federal agencies aren't particularly mission-driven, it's just a job, and it's ridiculous to pretend otherwise, so this wouldn't work. The opposite - a program-centric or decentralized contracting office, your much closer to the program. But two downsides. First, as you state contracting needs to be a check on program, able to act independently and say no - hard to do to your best work friends and employer! Second, contracting offices really must have some economy of scale and specialization. This is an evergreen debate in my particular contracting office. In terms of recruitment and retention, I think the mission-focused approach is demonstrably more successful, but I have large doubts about whether we could actually do our jobs competently (job one: do not break the law, nor allow others to break the law!) were we less-centralized than we already are. No obvious answer. Smarter people than me have thought about this much more carefully than me, so there probably is an answer out there.

A story about deviations from the FAR. I am unsure what is the moral of this story, but I take guess below. HHS has, I think, three (maybe more?) deviations which change 52.212-5, one of which applies all the time. If I understand how this works, then I'd expect all HHS contract to have clause 52.212-5 with at least one deviation, and some with 2+. I once did a hasty search for HHS combined s/s on sam.gov and found very few with any deviations for 52.212-5, and zero with more than one deviation. The letters/instructions and text of these HHS deviations, so far as I am aware, are found only behind a firewall, and not posted on any official HHS site which is publicly available. The deviations aren't included in HHS's own in-house clause library. An uncharitable moral of this story, which I don't necessarily agree btw, is that this shows 1) HHS COs don't know or don't care about the deviations, and 2) HHS doesn't know or doesn't care that its 1102 workforce doesn't know or doesn't care about its deviations. A more charitable moral to the story is that a typical HHS COs - with dozens to hundreds of actions per year - cannot possibly do everything they are supposed to do every time, so they make a trade-off, and skip some less important stuff like deviations. HHS knows this but choses to look the other way. My take-away from this story is that HHS, at least (and probably many or most other civilian agencies), is overwhelmed, and can't deal with deviations - so, as a tool, deviations should probably only be used only as a last resort or when necessary.

In software development world, agile pricing is related may be of interest here -it is sort of like FUP (which I have no experience with).

The broken windows theory, applied to contracting. A glaring and uncorrected error in policy tells the reader that policy is not to be taken literally or seriously.

The whistleblower isn't being secretive, the settlement is stickied to the top of her LinkedIn profile. (48) Sarah Feinberg | LinkedIn

Contractor employees with any type of access to GVT stuff (physical, "logical," etc.) need to be granted the appropriate access level (and a badge). To get the badge, the contractor must (among other things, like a background check & fingerprinting) prove their identity and employment authorization by providing the documents to the GVT agency doing the badging. Driver's license is the most common form of ID used. In my agency, this happens many times every day. Its not entirely clear to me from the paperwork I see that these contractors who need to be badged are current employees of the contract-holder, or whether their employment is contingent upon getting them badged. For us, it doesn't matter.

The pricing in 52.217-8 is typically fixed unless there is some exception like wage determination, or using a more exotic pricing arrangement, etc. The vendor unilaterally increasing the amount isn't a sufficient justification for an approved JOFOC, unless there is more to the story.

Caveat: I have no particular expertise in subcontracts, but I have dealt with late payments (but not any DoD reg, I'm not DoD). Obviously, the specifics of your situation matter a great deal, as do the contracts, consult with a lawyer, etc. FAR defines Untimely payment to subcontractors, I think it's more than 90 days past due from when gvt paid prime. There is some recourse in the FAR for untimely payment to subcontractors that might apply to you. Again, consult with a lawyer. FAR Clause 52.219-9 Small Business Subcontracting Plan - which states: (14) Assurances that the Contractor will not prohibit a subcontractor from discussing with the Contracting Officer any material matter pertaining to payment to or utilization of a subcontractor. FAR Clause 52.242-5 Payments to Small Business Subcontractors FAR 32.112-1 Subcontractor assertions of nonpayment (only for non-commercial)