General.Zhukov

When the requirement is poorly defined, offerors are just guessing at the LOE in their approach. If its for poorly-defined labor-hour work, then offerors are both guessing about the LOE and their guess isn't binding in any meaningful way - which is a huge incentive to low-ball. During evaluation, the CO has to deal with these theoretically low-priced offers through trade-offs or price realism. Price realism analysis is a waste of time - we don't really know if any offeror's LOE is, in fact, realistic. Trade-offs then ends up ironically comparing these prices as if they mean something. Example RFQ: Paint my house. I don't know how many square feet it is. No, you can't do a site survey. No, I don't have any pictures of it. No, you can't ask me any questions. I'll pay by the hour. I think it will take 20 hours. You have to write me a 10 page description of how you will paint my house, including how many hours it will take you and your hourly rate. By the way, It doesn't matter how many hours you propose, since I'll just pay you until its done. Offeror A: I am a professional house-painter with 10 years experience. I propose 20 hours, at $20/hr. "$400." Offeror B: I painted a few houses last summer. I propose 15 hours at $20/hr. "$300" Contracting Officer trying to write a source selection decision that justifies why Offeror A is worth the entirely-notional 33% premium in price: I need to update my usajobs profile. There are many methods to avoid this situation, but probably the lowest-effort method is fixed labor categories and hours.

Yes I suppose, but its not a big deal. The objective of analysis is to ensure the final price is fair and reasonable. There are seven types of analysis listed in FAR 15, cost and price being just two of them. This analysis is required but most of the times its actually much more simple and common-sense than it appears in FAR 15. Price Analysis. Say you want to buy some software. The company sells their software on their website for $10. You ask your friend who bought the same thing last week. She says she also paid $10. You have just determined the firm-fixed price to be fair and reasonable through price analysis per FAR 15.404 (b) (2) (ii) and (iv). Cost Analysis. You want your house painted. A painter says he'll do it for $8,000. $5,000 labor and $3,000 paint. That seems like way to much $ for paint for your 2,000 sf house . You estimated you'd need maybe 10 - 20 gallons and the very best paint costs $80 a gallon. You were expecting at most $1,600 for paint. Too expensive. You have just determined the firm-fixed price to not be fair nor reasonable thorough cost analysis per FAR 15.404(c)(2)(i).

I am definitely stealing this idea.

I know. Its incremental improvement in the face of constraints. There is a whole team of folks who need to approve of evaluation methodology. Evaluators who have to understand what they are doing. I am no expert in the subject, nor is the program office particularly knowledgeable about contracting. Institutional risk-aversion (not necessarily a bad thing). Etc. I would actually really be interested if there is any research about the connection between source selection methodology and contract performance. Such as - what information can we get pre-award that predicts good performance. I only know of folksy wisdom about past performance and competition. I am joking, but not really - is there is any actual high-quality research on the subject?

Caveat: I do IT services, and my informal method may not work for different types of contracting - like supplies with incidental services like delivery or maintenance, services covered by SCLS, construction, etc. The informal method I use If the contractor shall be physically present at a gvt-facility, at any time to do work (even briefly, like for meetings) , to be compliant with the contract, then the work is at least partially on-site. For my contracts, this is very important since requiring any type of on-site will probably limit competition to the local area, or we will need to consider travel costs (ugh). If the contractor being on-site at any time is recommended, or encouraged, or a good business practice, but not a matter of compliance - then I do not consider it on-site. Edge cases I'm not sure about - If our solicitation or contract is silent on the matter, but the contractor's proposal states they will be sometimes on-site. the requirement cannot be met without the contractor being on-site at some point.

Fun fact for those of you who like to get down into the FAR weeds. GSA's Schedules are by definition commercial, at least Schedule 70. GSA recently added 'Order Level Materials' (OLM) as a feature. Order Level Materials procedures may be used to purchase OLM products or services to support delivery orders (products) or task orders (services) under authorized GSA Schedules. OLM must be a separate Time & Material line item on the order. I take this to mean GSA approves of me issuing a commercial Schedule 70 order for commercial supplies, with a T&M line for OLM which are commercial supplies. Implying GSA is cool with use of T&M for commercial supplies.

No, the plain language of the FAR excludes commercial supplies from T&M contracts. In my personal opinion is that T&M is of little use (or maybe entirely useless) for conventional supply procurements, but I don't see the harm. However, my intuition is that the original poster's contracting office probably doesn't know or doesn't care about this. High volume contracting shops aren't concerned with the nuances of the FAR, particularly if it makes the customer happy, isn't obviously unethical or illegal, and isn't audited. I think this type of thing is the norm. My Department (HHS) has a departmental clause that, I am convinced, is universally ignored.

This has been done. The Army had a pretty slick clause picker called Clause Logic Service, but sadly its gone now, or behind a firewall.

I am using DHS's concept of Prior Experience instead of the usual Relevant Experience or Past Performance. https://hallways.cap.gsa.gov/app/#/doclib?document=17951 For a agile software development RFQ my instructions are for offerors to answer our questions, rather than have them write a so-called technical/management approach. Questions (slightly modified here) are: 1. What is your management process for this order, including working with the Product Manager, COR, and End Users to capture and size user stories, prioritize, and work-off the product backlog? 3. What is your definition of done? 5. What is your anticipated velocity? 6. What is your quality management plan for [something] 8. How do you plan on allocating work between the teams, particularly between [X] & [Y]? Page Limit: 5 Pages.

PM - Jack of all trades. CM - technical expert. Example of Why Contracting Technical Expertise Matters: The contract says work is performed on-site and it has been, but due to a long-planned facility repair the COR didn't know about, the building won't have enough space starting next month. The COR is saying most of the team will have to work either at a contractor-facility, or a different GVT building 15 miles away. What are your rights here? The PM won't know, but a good CM will. Contracting Officers have the power to make life miserable for the contractor, so know your CO and be on good terms with them. That is, or should be, the job of the CM. Example of the difference: CM: Why are my invoices being rejected? Friendly CO: Let's find out why, and what to do about it. A not-friendly CO: Invoices are non-compliant with the Section G. Invoicing Instructions, and/or FAR Clause 52. 212-4. Submit a trouble ticket to the Payment Office.

Junior Contract Specialists could go years without ever having to consider more than a handful of FAR clauses (mostly options and 212-5). Nearly everything the civilian Government buys is: a) available via a IDIQ/GWAC/IDC/IAA/FSS/MAS/BPA/etc. and/or b) commercial. So my intuition is that if you are considering more than a few FAR clauses, you are making it too complicated. That said, the rule is "apply the clause if its applicable."

More professionally stated----- What I mean to say is that based on my reading of the FAR Parts 16 (Ordering) and 33 (Protest), there are two salient facts: protests for orders over $25MM are the exclusive jurisdiction of the GAO per FAR 16 protest procedures, including whether/how rights to protest may be waived, are not in FAR - they are in an entirely different regulation, which supersedes the FAR. These two facts mean that the orders in question are affirmatively subject to GAO protest unless GAO - not the contracting agency - says otherwise, and GAO has not said otherwise. And what's more, I think this is a unassailable rock-solid statement. I give the example of how waiving small business representations to show how the same (incorrect, IMO) reasoning applied to the SBA leads to an obviously un-allowable situation. Because who would bother with all that small business stuff if it could just be waived by the CO? The remark about GAO bid protest decision is to show an internal inconsistency. If contract-holders don't agree with the GAO waiver, to whom would they protest the solicitation if not to GAO? The FAR states only GAO handles such protests. And if they decided to sign the waiver and then protest to GAO anyways, do you really think GAO would dismiss the protest?

LOL, no. FAR 33.104 - Procedures for protests to GAO are found at 4 CFR Part 21 (GAO Bid Protest Regulations). In the event guidance concerning GAO procedure in this section conflicts with 4 CFR Part 21, 4 CFR Part 21 governs. FAR 16.505 - ii) Protests of orders in excess of the thresholds stated in 16.505(a)(10(i)(B) may only be filed with the Government Accountability Office, in accordance with the procedures at 33.104. The Contracting Officer has no authority here. If I am wrong, and a CO can make exemptions to other regulations, please let me know so I can have offerors start waiving their SBA-mandated right to protest small business representation. It will make my life easier. Please, please, please protest this - to GAO. I would be genuinely delighted to read GAO's bid protest decision about whether an agency can require offerors to waive their right to a GAO bid protest.

My guess is that under the new BPA, the CO is using some severely restrictive interpretation of 'as-needed' (or perhaps what counts as a ''bona fide need'). The CO has decided that buying toner on a FFP basis isn't legit unless its needed right now - the toner in use today is running low. Once this happens - and the program office needs the toner imminently - then the program gets the green light to buy more, but has to go through a lengthy contracting process to issue a call for that toner. I speculate that toner's 'lengthy contracting process' probably has a very long lead time (likely 30 days or 60 days), and there no expedited contracting process due to agency policy or culture. I further speculate the CO thinks that other than the lower toner warning, it's not possible at the time of placing the order to accurately estimate anticipated need with any reasonable degree of confidence. Therefore the only way to buy more than one toner at a time is via T&M. (FAR 12.207). An additional reason to switch to T&M is that a T&M order would effectively replicate the previous BPA's 'draw down' method in practice. Program office no longer needs to buy toner only at the instant it is needed, but can issue a T&M order for its annual estimated usage of toner. Once the order is awarded and money obligated, the program office then can directly get the toner from the vendor whenever needed without having to go through contracting (up to the T&M ceiling). Disclosure: I am fully aware this is a wasteful and dumb way to do things, but it fits the facts and my intuitions about how some CO's think.

Yeah, this clause, which I've used at least a hundred times, sucks, now that I am reading it carefully. Here is better....you listening FAR Council? Option to Extend the Period of Performance (Jul 2019) (a) The Government may extend the period of performance of this contract through the unilateral exercise of options under this clause, if two conditions are met: 1) The Government gives to the Contractor notice that the option has been exercised at least 5 days before the contract expires, and 2) The Government gives to the Contractor preliminary written notice its intent at least 60 days before the contract expires. (b) If these two conditions are not met, the option may be exercised only through a bilateral contract modification (supplemental agreement). (c) The total period of performance of this contract, including all extensions, shall not exceed 60 months.

1) Probably not. I know that in practice, in the civilian agencies I am familiar with, the CO rarely sends out these preliminary notices. A Contract Specialist or Admin usually sends the notice on behalf of the CO. These folks might have some delegated CO authority or something though. But it is 'intent'- its not binding. 2) No, I don't think so. I interpret that sentence as meaning 5 days is the minimum period between receipt of the option exercise and when the contractor is responsible for work (under the extended term). I consider the 'within 5 days' statement a way of preventing this: The CO sends an option exercise at 11:58 PM the day the contract expires, and expects the contractors to show up at 8 AM the next day. Could be wrong though. 3) I think the intent of this sentence is to (indirectly) confirm that the clause can be used repeatedly to extend the term (up to the limit of para c). The alternative would be an interpretation of the clause where the term can be extended only one time.

Need more info. Without knowing the specifics, I can offer my really basic two-part test for approximating an answer to "can we tell them?" Part one: Does telling them violate any regulations, laws, policies, guidance, etc? Part two: Should you tell them - is telling them to our benefit? Its pretty unlikely that you are prohibited from telling them the number of hours. So its probably a question of should you tell them.

1) Inspection is, at least, closely associated with inherently governmental functions. From FAR 7.503's list of what is inherently governmental v) Administering contracts (including ... accepting or rejecting contractor products or services)

On your first point: Less effort for same result. In my agency and in my field (IT Services), options need perhaps 1/20 the effort of a new Call. I may need two months to complete a new Call, while I can do an option exercise in a day or two. Thus, we tend load Calls with options whenever we can.

Follow this advice.

I know this one because I do mostly IT services, which sometimes has a mix of exempt and non-exempt labor, and I primarily issue my It services as orders against IDIQ/IDC/GWACs. So this issue come up. Summary: In the IDIQ/IDC contracts I am familiar with, the SCA (I also use SCLS) determination at the order level is independent from whether the IDIQ/IDC is covered by the SCA. IDIQ has SCA clauses, but orders may be exempt from the SCA - GSA's Schedule contracts. IDIQ does NOT have SCA clauses, but orders may still be subject to the SCA - GSA's GWACs (8(a) STARS II, Alliant, VETS2). In both cases, the ordering contracting officer affirmatively determines that this particular group of clauses is an exception to the usually flowdown per 52.216-18. In the case of Schedule contracts (that have the SCA in them), the OCO is affirmatively determining the order is exempt. In the case of the GWACs, the OCO is affirmately determining the order is NOT exempt, despite the base IDIQ having no mention of FAR 22.10 or its clauses. In the case of an IDIQ that does have the SCA language, but also has functional areas that are obviously exempt from the SCA (like OCONUS), I would probably limit making a determination to edge-case orders, where its unclear if the SCA applies or not. An order that is entirely OCONUS services needn't bother with an SCLS exemption. On the flip side, an order that is self-evidently covered by the SCLS - janitorial services - shouldn't have to include the clauses since the SCLS is definitely flowing down from the IDIQ to the order.

My two cents Short Version: a lot of analysis is lost in the overwhelming amount of contracting paperwork, documentation and procedures. There is so much that you must do, you skip the stuff you should be doing. Long Version: In my Department (HHS) a written AP is required for anything over the SAP (HHSAR 307.something), and the AP must follow FAR 7.105. The HHS Acquisition Plan template has about 70 data fields to fill-in, for thousands of contract actions per year. So a purchase of $400,000 of live mice has an AP that, in theory, considers Section 508. A $400,000 purchase of commercial software has an AP that, in theory, considers subcontracting competition. In practice, this stringent Acquisition Plan documentation requirement effectively negates Acquisition Planning. If you are writing, or reading, or approving dozens (or hundreds) of Acquisition Plans per year, you are not giving them much attention or thought. People tend to thoughtlessly skim past the actual strategic planning & analysis parts of Acquisition Planning - such as lease vs. buy for heavy machinery - along with junk parts of the Acquisition Plan. In an organization with this type of process, you can figure out how many simple business/acquisition analysis are overlooked.

A cautious response would state we can't possibly know the answer here without a lot more detail, a careful review of the contract itself, the administrative record, etc...however, when moonlighting as an anonymous internet poster with no stakes in any of this, I won't be cautious.... Defective specifications are a type of constructive change for which the Government is liable and the contractor entitled to some type of recovery (like an equitable adjustment). I doubt that any term or condition like 'concurrent delay provision' somehow prohibits contractor recovery in event of constructive change. What's more, there seems to be nothing concurrent about this delay. As described, only one party has hindered or delayed performance - its 100% due to the Government - so the provision doesn't apply. Therefore does not trump. That's my 5 minute, shady-tree-contract-lawyer answer. More helpfully, I'd recommend a careful reading of Contract Attorney's Deskbook, Volume 2, Chapter 21 - Contract Changes.

Example June - Issue order #1 for 1,000 term software licenses from SEWP. Period of Performance of one year ending July 31, 2020. Licenses $1/Month so $12,000 FFP. Order has clause 52.217-6/7 for, say, up to 500 additional licenses. All additional licenses co-term on July 31, 2020 and licenses cost is pro-rated per month. July - Hey, we forgot about the American Samoa field office, we need another 50 licenses starting August 1st. Issue modification to order #1, adding 50 licenses for $550. (50 licenses x $1/month x 11 months) Now you have only one order, #1, even though you've purchased the licenses two times. June of Next Year - Issue order #2 for 1,050 term licenses from SEWP. There are better ways to buy software, but if your agency is like mine and tries to use notionally competitive FFP GWAC orders for all IT, then I've found this method to be beneficial. 1) Easier and faster to do an option than a new order. 2) Easier to track and administrate if all the software is on one contract vehicle.