Vern Edwards

Think of two functional groups within an agency. There are the people who do the agency's work and need products or services in order to do it. They are the "requiring activity". Then there are the people who buy what the the requiring activity needs. They are the "contracting activity". Sometimes the two activities are part of one and the same office within an agency—a program or project office—and work for the same boss. But sometimes the two activities are in separate offices or even separate agencies and work for separate bosses. Sometimes the two activities are in the same building and sometimes they are distant from one another, even in separate states. In order to buy what the requiring activity needs the contracting office asks for a "procurement package" which contains information and documentation necessary to conduct the procurement. In an ideal situation the two activities work together to develop an acquisition strategy and plan. Based on the acquisition plan the contracting activity prepares a solicitation, announces it to the public and, working with the requiring activity, selects a contractor and prepares a contract. According to FAR 1.602-2: "Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment." Contracting officers prepare solicitations and contracts, but they must rely on technical information and specifications or statements of work provided by the requiring activity, and they rely on the requiring activity for advice and assistance during the contractor selection process. Contracting officers are rarely truly independent. In my last contracting officer job my office was in one state and the requiring office was in another, but both offices worked for the same senior official. In one procurement we disagreed on contract type. The requiring activity complained about me to the Big Boss and even went underground to industry, which complained to a U.S. Senator about me. The Big Boss convened a meeting and he listened to both sides. Then he said, "Vern's the contracting officer. It's his decision." And that was that. I worried that the requiring activity would try to sabotage the contract, but they didn't, God bless them, and the contract was a great success. But I supervised that contract like it was a prize racehorse. When a procurement goes wrong it may be due to poor work by the requiring activity, poor work by the contracting activity, or poor work by both. But when people say that a contract is a mess they usually blame the contracting activity.

Well, since you persist in selling BLUF and I'm a contrarian who distrusts all popular wisdom, here's a more nuanced analysis from Generative AI: And there's this: In short, BLUF is a technique. Sometimes it's the right technique and sometimes it's not. It usually, but not always, works well in theh business and bureaucratic world, in which listeners tend to be busy and impatient. Know your audience and the situation, and choose the best approach. Don't just rely uncritically on Covey, other popular writers, or a training course. That's especially true when you're trying to sell an unorthodox conclusion or innovation. In such a case, BLUF may turn people off. It may prompt people to start thinking up reasons to reject your position while you're still trying to complete your presentation of your facts and rationale. One of the greatest speeches ever written, Shakespeare's "Friends, Romans, countryman, lend me your ears" speech is the very opposite of BLUF, but exceedingly powerful. So is Churchill's "We shall fight on the beaches speech" in which the bottom line comes at the very end: Sometimes you have to prepare people for your conclusion and then lead them to it. So, Joel, forgive me if I ignore Covey from time to time.

It depends on what I'm reading. BLUF comes with risks. Victims of confirmation bias might accept a bottom line they agree with without bothering to attend closely to the reasons (premises, findings), and find later that if they had attended to the reasons first they would have rejected the bottom line. That's might be one reason why the syllogism begins with premises (findings) and ends with the conclusion.

Does the contract contain an option for increased quantity clause, such as FAR 52.217-6?

😂 Why the Army writing guide? Why not the Navy guide? I think you were in the Air Force. Why not the Air Force guide (Tongue and Quill)? Why not the GPO Style Manual? Why not the Chicago Manual of Style. And on, and on... All those manuals, so much crappy writing. Read a SOW or PWS from sam.gov.

@TippHill See FAR 1.108, FAR Conventions, paragraph (a): Technical terms𑁋i.e., specialized words and phrase that must be defined due to their legal import, like concern, invoice payment, service contract, and weakness𑁋that are used in the same way in more than one place in FAR should be defined in FAR Part 2, rather than elsewhere. I checked each of the terms you asked about found that each of them is used in more than one place in FAR. Weakness is officially defined only in FAR 15.001, as a flaw in a proposal, and is referred to in that sense in FAR 15.305, 15.306, and 15.506. However, weakness is also used, without official definition, in FAR 1.102-3 with reference to processes; in FAR 16.103 and FAR 52.216-7 with reference to a contractor's internal controls; in FAR 42.1503 with reference to a contractor's past performance; in FAR 44.305-2 with reference to a contractor's subcontracting practices; and in FAR 44.305-3 with reference to a contractor's purchasing system. Thus, based on the FAR convention, weakness should not be moved from FAR 15.001 to FAR Part 2. It is used as a technical term only in FAR 15.001. It is used in its "common dictionary meaning" in the other places. I would perform the same kind of analysis in order to answer your questions about concern, invoice payment, and service contract. For instance, invoice payment is used in 16 places in the FAR, all but one in Part 32 and in contract clauses that implement Part 32. It is also used in the same sense in Part 3. It might thus be defined in FAR Part 2, rather then in Part 32. But the one use in Part 3 clearly pertains to Part 32, and thus it might just as well remain defined in Part 32. Concern, on the other hand, appears in 243 places in FAR. I have not checked all those places, but I suspect it is mostly used as part of the phrase small business concern. It might thus be best defined in FAR Part 2. The same might be said of service contract.

I answered yes and yes. In addition to FAR Part 1, the term appears in FAR Parts 2, 4, 6, 8, 12, 16, 17, 19, 25, 30, and 50. I saw no other definition than the one in FAR 1.701, so I presume the meaning to be the same throughout. A D&F is nothing more than a syllogism, and it has been said that it should be called a Findings and Determination rather than a Determination and Findings, since the findings are premises and the determination is a conclusion. The term has appeared in the Federal Register more than 1,000 times, the first time in 1939, in a regulation published by the Federal Crop Insurance Corporation. The oldest reference I could find was in the Senate Journal of the 61st Congress, 2d Session (1909-1910): It appears to have always meant more or less the same thing𑁋a conclusion (determination) prerequisite to some course of action that is based on specified findings of fact. The term appeared in the 1949 Joint Regulations of the Armed Forces, see 32 CFR 402. 301 (1949): In addition to Title 48, the term also appears, without definition, in Titles 2, 7, 10, 11, 13, 14, 15, 20, 25, 28, 29, 32, 39, and 49 of the CFR. But it appears in Title 48 more than anyplace else. It appears without definition in 14 titles of the United States Code.

I don't understand what you mean. How does an FFP contract "look like" a cost type? Please explain. Are you saying that the customer expects the outcome to match the estimate?

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Well, "full time" is nebulous. It might mean 40 hours per week or it might mean as many hours as necessary to get the job done properly, whether 40 hours 60 hours. Most "full time" business people work a lot more than 40 hours per week. Let me ask: Do the CO and the COR think that the test manager's performance is unacceptable, i.e., that it does not conform to contract quality requirements? If so, then the CO should seek corrective action, no matter how many hours per week the test manager is working. Or is quality just a matter of hours worked?

😂

Yes, in the sense that the parties can agree at the time of contract formation that the decision can be made unilaterally by one of the parities.

The contract doesn't define it, but you think the contractor's not delivering it. From a Google search: @Neurotic Are you that COR I wrote about? Time to move on.

The contractor's explanation makes sense. This story sounds like some suspicious and/or disgruntled COR making a mountain out of a molehill.

🙄

If the contractor were required to submit certified cost or pricing data, then see FAR contract clause 52.215-2, Audit and Records - Negotiation, paragraph (c).

Assuming they were not stupid, and did not document their intention, how would you prove that at the time of price agreement they knew they would not be charging full time? What if they did not decide to take that path until after performance began, or say that they did? If they were unethical enough to make such a plan, why wouldn't they lie if accused? What if there were no whistleblower? We're talking peanuts, not millions. You'd spend more trying to make your case than you would recover through defective pricing. If they mischarged they mischarged, and the government gets its money back, with interest, defective pricing or no defective pricing, fraud or no fraud. I'd tell the auditors to look for misallocation and mischarging. If they find it, and if the money were large, then I might look for defective pricing, assuming they had to submit certified cost or pricing data.

Truer words were never written. I just got my first hearing aids. I hope the fingers don't hurt too much.

Uh, it's not clear to me how that would be defective pricing. What's the defective data?

@ShaunaMSACM The term "commercial item" is no longer in use. The appropriate terms are "commercial product" and "commercial service". Commercial product and commercial service are defined in FAR 2.101. It appears that you are asking whether the procurement is legitimately for a commercial service. The only description of what is being procured that you have provided is as follows: That is not enough information for me to determine whether or not the service is commercial. Can you provide more details?

GAAP have nothing to do with your issue. Neither do CAS if CAS do not apply to the contract. Look instead to the contract cost principles in FAR Part 31, especially 31.201-4, Allocability. FAR does not define mischarging, but it would likely include charging test manager work allocable to the FFP CLIN to the CPFF CLIN. Deliberate mischarging is considered contract fraud. You might need an audit to prove cost mischarging. I don't think the mere fact that the FFP test manager performed and billed for also doing other work and charged it to the CPFF CLIN would necessarily constitute cost mischarging. If the other work was not test manager work and if it did not prevent the test manager from putting in "full time" as test manager, then it's probably okay. Does the contract clearly specify what constitutes test manager work? Does the contract define "full time"?

Okay, Mike. I jus bought it.

No. But I was not writing as a scholar, but as an analyst writing for a professional publication. And I don't write for laypersons. You asked: That's a layperson's question. A professional contracting person would have a sense of the costs associated with administration and oversight of the small business programs as incurred by the SBA and by contracting offices. There's the cost of having to prepare a synopsis for every buy in excess of $25,000, instead of in excess of the simplified acquisition threshold, as required by the Small Business Act. Think of how many such synopses are made each year (millions) and the cumulative annual person time devoted to their preparation, posting, and maintenance. There's the administrative time and delay of coordinating with SBA Procurement Center Reps. There's the cost of documenting the reason for not totally setting a procurement aside. There's the cost and delay associated with size protests (roughly 500 per year as of 2012) and appeals and of certificates of competency. There's the concern that setting procurements aside, and thus limiting competition, results in higher prices. (Check out SBA's There's the cost to government and industry of preparing and reviewing small business subcontracting plans. There's the cost of evaluating offeror small business subcontracting past performance There's the general cost of SB program administration and oversight. Those are just some of the sources of cost. Really, all a professional need do to identify where the costs would come from out of Part 19 is read Part 19 and use their head. But a professional might subscribe to and search in publications like Public Contract Law Journal and consider articles such as "Questioning the Sacred Cow: Reexamining the Justifications for Small Business Set-Asides" by Andrew George Sakallaris, Summer 2007. A pro might read, Big Is Beautiful: Debunking the Myth of Small Business by Atkinson and Lind (2018), published by MIT Press. A pro with a question like yours might scan SBA's 252-page FY 2025 budget justification. As I said in my piece, I don't think anyone knows what socio-economic program costs add up to. Procurement offices don't track their costs. I didn't make a cost/benefit analysis. I just pointed out that the programs cost money and time and should be reviewed and perhaps adjusted. But I am confident that they more than offset any savings that you attribute to "the exemptions to CAS and the DFARS Business Systems criteria, and to a lesser extent the government's reduced lead time for 8(a) and SDVOSB direct awards." According to SBA, the VOSB certification program alone will cost them $27.7 million in FY2025.

Are you serious? Have you made any attempt to think seriously about that? I think not.