General.Zhukov

Final thought - Find and learn from other comparable governments that have better - more 'streamlined' - acquisition systems. Comparable - larger US states (CA, TX, FL, NY) other comparably large nations with roughly similar legal/procurement system (EU, Canada, Australia, NZ, UK, maybe Japan).

For Type 1) Simple - This is high-volume with repetitive relatively standard procedures, a lot of which isn't legislative, so even small process improvements can be made and may have a large impact. The humans doing the work are less important. - An agency-wide exemption to the elements of a written acquisition plan (FAR 7.105) which are useless for your agency, well that will save a tiny bit of time and effort. But, if, like HHS, you have >5,000 written acquisition plans per year, the cumulative impact is significant. - Go find your most important vendors, ask them what 'streamlining' means for them, and maybe act on that? - Go find your most important customers/ end-users/stakeholders, do the same. For Type 2 - there is only one way to do this, which we have known forever, and essentially applies to any profession. It's all about the humans. You need intelligent and experienced professionals who have the authority to make important decisions, and the wisdom to make the right decisions. If you have an high-impact acquisition that you want to streamline, go recruit/poach/borrow the best CO you can find, and give them that job (and the ability to do that job).

For perspective on what "contracting" means - in HHS (my Dept) you have Type 1 Procurement the median contract obligation was $42,190 156/24,00 contracts obligated over $10M 75% of all contracts used FAR 13 or 16.5 (FAR 14 is a rounding error, at 28/24,000) And then you also have Type 2 Contracting NIH awarded 9 $Billion multiple-award IDIQs for Non-Commercial Research and Development, and admins some gigantic GWACs. My OPDIV overhauled how it buys IT software and hardware, and the contracting volume has shrunk by a lot - maybe 30%? An HHS OPDIV, if FPDS is to be believed, received 198 offers in response to a FAR 15 RFP. I think these need to be treated differently. Type 1 is about systems, process, and workflow. Type 2 is about the human beings (COs) doing the work.

So 'major systems' and OMB Circular A-109 is...universally ignored and has been for decades, despite of its formal legal and regulatory standing? This is what I had suspected, and what I will bring as evidence next time I argue to the policy team that 'while it (note 1) may be required in written acquisition plans per FAR 7.105, nobody actually does it in reality - go ahead, please find the current threshold for 'major systems' per OMB Circular A-109, I'll wait - so we should just blow it off.' Note 1: Should-Cost, Pre-award IBR, Make or Buy, all of 7.106, among others.

Major systems, Some sections of the FAR are specifically applicable or required when an acquisition involves a 'major systems.' Notably, FAR 34 and FAR 7.106. Also FAR 15 Make-or-Buy, Should-Cost, some section of FAR 27, and a few other places. An acquisition involved a 'major system' under four criteria stated in FAR 2.101 and FAR 34. One is just for the DoD, which is clear. I'm not DoD. One is 'when designated as a "major system" by the head of the agency' - also makes sense. But two criteria for 'major system' rely upon OMB Circular A-109, and what is going on here? This circular is a ghost. It seems to be obsolete. Two criteria for major system relying upon A-109 FAR 34.000 Scope of part. This part describes acquisition policies and procedures for use in acquiring major systems consistent with OMB Circular No. A-109 FAR 2.101 . (2) A civilian agency is responsible for the system and total expenditures for the system are estimated to exceed $2.5 million or the dollar threshold for a "major system" established by the agency pursuant to Office of Management and Budget Circular A-109, entitled "Major System Acquisitions," whichever is greater; Ah, so let's go see what OMB Circular A-109 has defined as a 'major system.' Not so fast. This OMB Circular isn't listed by OMB on its official website. A-109 probably has been replaced by OMB Circular A-11. But not the technical phrase 'major system' vs. what A-11 uses, which is 'major acquisition.' These are two distinct concepts, not synonyms. I can't even find a full text version of A-109 anywhere. Please explain.

My take from my personal history with "Cyber": The oddly prominent use of the term 'cyber' in acquisition/contracting related world stems from two leaders. National Institute of Standards and Technology (NIST). Many of the acquisition regulations using 'cyber' directly reference NIST, especially the obscure but important NIST SP 800 series about cybersecurity. NIST was using the term 'cyber' as understood today as far back as 2000. Next, "Cyber" was popularized as a term of art for "related to government IT security" with the naming of U.S. Cyber Command in 2010. The civilian federal government came later and copied DoD. I think USCYBERCOM was the first prominent 'cyber' named agency (although intelligence community was using the term before then).

1) Based upon what you wrote, as the CO, I would evaluate this contract because the ext. of services option was exercised. The PoP was within 3 years. That seems very straightforward to me. 2) "can we count the entire duration of the contract as past performance " - Yes. The alternative is incoherent. Its easy to think of cases where the performance to be considered can't be meaningfully 'severed' at some arbitrary date. Though more recent performance would probably be weighted more heavily, but I wouldn't just pretend as if performance prior to that date didn't exist. Like, if on July 7, 2021 you received a signed letter from the Secretary of Defense stating you're the best contractor of all time and they're updating CPARS to have a 6/5 rating just for you, I wouldn't exclude those facts from my evaluation.

Facts wise - I know definitively from my agency's internal records that ordering from a GWAC is faster than open market, for commercial products. The two major factors causing the difference are what you would expect - 1) it takes much longer to issue the solicitation for open market (and they are many pages longer) and 2) the pre-award back-and-forth with the awardee takes a little longer. For commercial services, what we award via GWAC vs. Not-GWAC are very different, so hard to compare. For HHS as a whole, it looks like GWACs are a little faster, but it's not obvious in the data I have. Anecdotally, I think that for commercial software (commercial items), the GWACs are essential. The GWAC has solved two difficult challenges for the ordering activity CO - terms and conditions (especially EULAs that violate federal law, which is almost all of them) and baseline cybersecurity standards. This is enterprise level work. Don't haggle with Oracle every time you buy, do it once, or even better, have GSA do it for you. Buying cloud services on your own is madness. For IT hardware (commercial items), GWACs are very useful, but not essential. 4/5. Compliance is less of an issue with hardware, but still a burden to do on a per-order basis.

This is happening now. >90% of HHS's IT spend is done via an acquisition vehicle* Of that 90% of IT spend, half of it is spent on GSA Schedules and HHS's own IT GWACs. For IT, you have to deal with many complicated issues where just figuring out the terms and conditions is a challenge for GVT, and compliance cost the contractor mountains of money. This isn't feasible to do per contract, unless it's a really big contract. *Orders, not FAR 15, not an 'open market' FAR 13 purchase order.

As a CO who did much non-classified IT professional service contracts, I confirm that on-boarding & sec. clearance is a long process of uncertain duration, blocks full contract performance, and is (at the minimum) very common. By very common, I mean, it's something you always have to think about. Note things can be very different if FLSA applies, or contractor needs a TS, etc. One practical warning: Appropriated Funds + Severable Services + "Transition Period" for Onboarding = Danger.

I don't know exactly how their finances work (not my office, and our agency has complicated funding - 50% appropriations from Congress, 50% fees from industry, both with many strings attached), so I excluded it from consideration here. But yes, it's likely that they could use something like bulk funding if they figure out the timing part. That is a part of FAR 13 I didn't know about! Thanks for the suggestions. I think we will probably consider a short-turn-around FAR 13 BPA for the relatively more expensive items and stay with P-Cards for the little stuff. If we can get a new BPA to be much, much faster than our other BPAs/IDIQs. My agency has many BPAs (we love them, we use them the most in HHS), but they are for far larger and far more complex requirements. BPA Calls for millions of dollars of professional services, not hundreds of dollars of supplies.

Unfortunately, that's not in FPDS, my data source. However, the FAR goes on at length about things that aren't commonly done anymore. To wit, last year HHS awarded as reported by FPDS: 23,330 New Contract Actions (not modifications nor "other" like OTAs) 22,270 Orders (Delivery Orders, Purchase Orders, BPA Calls) 1,000 Definitive contracts 297 definitive contracts which had >1 offer received. That is 1%. 1 multiple award IDIQ, which was awarded by the CDC. 0 Basic Ordering Agreements 0 Price evaluation preference for HUBZone per FAR 19.13 0 Partial set-asides of multiple-award contracts per FAR 19.13 Now the caveat is that the data in FPDS is of varying quality and reliability, so these numbers are approximations. Someone in HHS other than the CDC did a multiple-award IDIQ last year, surely. Interpret only 1 multiple-award IDIQ in HHS as meaning this type of contract is very rare, but not literally 1/23,330. The point is twofold, first is that the FAR is full of stuff that, at least for HHS, is irrelevant and nobody would even notice if those sections of the regulations disappeared, and second, this is a fact which everyone already knows but nobody can do anything about.

Preaching to the choir here, but...as bad as FAR is, the Agency ARs are worse. Late year, HHS - which is very large - did 71,000 contract actions recorded in FPDS, for >40$ billion dollars. Of these 71,000 an underwhelming 0.1% (68) used FAR 14 Sealed Bidding procedures, for a tiny $13M (0.03%). In all of HHS, only seven Sealed Bid contracts for over $SAT were awarded. Seven! Out of 71,000. 1/10,000. HHS is basically like "Nah, we aren't doing FAR 6.4 or FAR 14 anymore." Yet, HHS has a chapter of the HHSAR devoted to these rarest of contract actions. It's a short chapter, I grant you, but it's still a chapter at all. This x 1,000.

What are some procurement arrangements I can use in our situation -see below - other than using a P-Card? (I think this is contract admin issue more than anything else, but if this question is a better fit elsewhere let me know) Situation: - A civilian agency's remote facility housing many small heterogenous laboratories. Their scientific and laboratory supplies are a constant procurement problem. They use P-Cards, but are wondering if there are alternative solutions. - Heterogenous labs means different types of specialized supplies. Most supplies come from a few big well-known companies (like Thermo Fisher), but lots of different items and some items have a single source. For the crown-jewel instruments (like this one) we have support contracts & warranties, so not a major problem here. - Small means very low dollar volume of these supplies. Almost all purchases are under micro, many are under $100. Annually in sum, maybe $500K - $1.0MM. - Remote means delivery is relatively slow and expensive given the low $. A lab assistant can't just grab the P-Card, and drive to a nearby warehouse full of, for example, special gloves resistant to particular chemicals that leach through latex. - Because of funding and non-contracting reasons, creating a mini-stockpile or better supply management at this facility aren't feasible in the short-term. Comments: - My guess is that P-Cards are the best and only method of procurement for this situation. There isn't anything else that would be effective. But... maybe I'm wrong - this isn't my area of expertise. - A BPA doesn't seem like the right fit given the small scale, because at these very low dollar values, issuing a BPA Call for something under micro seems excessive. Takes too long, administrative cost of a call exceeds the value of the supplies being purchased, etc. - This sort of situation is probably much more common in DoD world, which I know very little about. I was activity duty logistics but didn't deal with the supply chain. Where the stuff came from wasn't my concern. - No department or government-wide acquisition vehicle or civilian equivalent of DLA that we could use, at least none I am aware of. Caveat - some of their scientific/laboratory/medical supplies are indeed purchased from GSA or VA, but those common items aren't the main problem. The problem is with niche specialized supplies that aren't on any vendor's FS schedule (or whatever they are called these days). - Made in America makes this more difficult. For example, they need a type of Xylene-resistant gloves. I've been told these need a waiver.

Final comment. I don't know the details of the fly business class but charge economy class case. I do, however, know that Business Class jumped of the screen when the CO looked at the proposal's travel cost estimates, and was never going to get into the contract. At least in my office, it's the only case I know of where an offeror was like "yeah, we are proposing to fly business class and you are going to pay for it." In fairness, the PhDs in the labs want/need this exact model of instrument made by this one company (whose sales reps maybe or probably have been chatting about it to the PhDs for months before contracting got involved), and everyone knows this and negotiates accordingly. Thanks for the thoughtful responses.

This was very helpful and reassuring to me, as your responses agree with my understanding. The flying business class case is real too - although what happened is the GVT refused, thinking (wrongly, IMO) that it was prohibited, and the OEM agreed that $$ over economy class wouldn't be reimbursed. Apparently, highly-skilled technicians - especially those willing to travel to remote locations and be responsible for very expensive and delicate machines - can demand perks, and their employers are eager to pass those costs on to customers.

Scenario: The common scenario in my agency is a fixed-price order for commercial services. Let's say it's for on-site installation and calibration of scientific equipment. This is a contract directly with an OEM, not using any acquisition vehicles which have their own procedures and rules about travel. We will have the new instrument installed in four labs around the country. OEM technicians must plug it in and get it working in person. The labs and the OEM both insist on using reimbursable travel to cover the travel costs. Time on site is unpredictable - could be a few days, maybe much longer if things go bad. The labs don't want to 'overpay' for fixed price travel. The OEM, after a bad experience with another agency during COVID, also insists on reimbursable travel. They are firm on this. Conservative estimated total travel cost is $80,000 on a multi-million-dollar contract, so not worth negotiation with a vendor who's already said they aren't negotiating on this. As the CO, I shake my head, insert FAR 52.212-4 Alt 1, follow the procedures, get all the approvals, etc. and now have travel as a reimbursable ODC on a T&M Line Item. Question What, if any, other regulations or laws must apply to travel in this scenario. As its commercial, I'm uncertain if 31.205-46 Travel costs applies "automatically." How about the Joint Travel Regulation? Let's say the tech always travels business class - and has the receipts from previous non-governmental customers to prove it - is that okay, as that's the 'commercial market practice?'

Not everyone is opposed to commercial. In my contracting office, which has roughly one hundred 1102s, we did about 1,700 new contract actions last year (excluding modifications & close-outs). The vast majority - >95% - of these actions were commercial orders. Of the remaining 5%, most are special cases (BAAs, R&D, inter-governmental cost contracts required by law, etc.). Excluding the specials, my agency could very well have awarded zero non-commercial contracts last year.

Last word on this. Yes. Universities (big ones) have business offices whose job it is to work with you to get the signature, including accepting and complying with T&M or Labor Hour pricing, or FAR 31, or whatever. There is no blanket prohibition I am aware of that would make universities categorically unable to comply with these regs. I know for sure that my federal agency routinely enters into contracts with universities (to do agro/bio research and regulation related stuff).

No, I don't think there are any problems with universities complying with timekeeping. None that are big enough for me to be aware of. Large research universities (the type my agency works with) will have some sort of office that takes care of contracting. These are the people to talk to. Like this one I know about at Johns Hopkins. Not the PhDs. The investigators who do the work of the contract - they neither know nor care about the FAR or timekeeping compliance.

Many institutes of higher education have MAS contracts with Labor Hour pricing (UNC Chapel Hill for sure). My agency has LH and T&M MAS orders with these universities. We also have cost no-fee contracts with universities (like Texas A&M). We have contracts with non-profit primes that sub to universities. I don't know the details of those, but they aren't fixed price. My agency, however, (mostly, maybe only) works with public state universities, things may be different for private IHEs. There isn't any type of blanket prohibition.

I can say from personal experience in the Army, that this does happen, or at least did happen for me, and it was pretty routine. My Army unit had access to stuff that was in advanced development state by other USG entities, ranging from moderately to very classified, and we got training and tech support by contractors who worked for those other guys. There was, in my case, an on-site uniformed officer overseeing it all. So, it happens. Contract-wise, I don't know, wasn't my job at the time. Its the Army's job to figure it out and coordinate, specifically it's the Commanding Officer's job. Easy. Not joking. The details and execution may be quite complicated and delegated down many levels from the commander, but ultimately, it's their responsibility. If it's not happening despite the fact that everyone wants it to happen, because nobody knows who goes first, or who has the authority to make actual important binding decisions, or general inertia and passivity, or lack of money, or whatever, then it's then the commander's responsibility to fix things. For many (not all) things in the Army, this is the PEO. What should happen: The uniformed boss of your particular contract/project tells his uniformed boss (PEO) "we want in on what the Navy is doing." The PEO agrees, then tells her staff to make it happen. Then it happens.

A little off-topic, apologies. I am reading this thread here and don't understand how a FFP NTE Line Item (CLIN) for travel reimbursement is materially different from cost-reimbursement (no fee). This quote is hinting at the difference, but I don't quite get it.

Are you asking about splitting requirements? My definition: Having a known requirement that is larger than the applicable dollar thresholds and dividing that requirement with the intent to purposely circumvent those thresholds. In your case, the purpose of splitting requirements would be to lower the dollar value of action, and thereby lowering the non-competitive approval authority, right? You have a $1,000,000 sole-source contract needing approval by the Advocate for Competition. You do not want to seek AOC approval, so you split the requirement into two $500,000 contracts, now the Contracting Officer can approve the JOFOC, rather than the AOC. If splitting requirements is done in collusion with a contractor, or with the intent of directing the award, it is fraud, more precisely Fraudulent Sole Sourcing. Dust off your Contract Attorney's Deskbook, flip to Chapter 28 Procurement Fraud, and read all about it. If splitting requirements is done without collusion, for more prosaic reasons, it's not fraud per se, but it is...ethically questionable. The actual experts here on Wifcon will know more than me about this.

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).