Vern Edwards

How will additional data help the CO if the seller says, "You can have all the data you want. It won't change the price. No one else stocks the item you want. If you don't want it at that price, we won't stock anymore either"?

Why should TransDigm have to "justify" its pricing? What law requires a prospective contractor to justify its prices?

In the DODIG summary: Emphasis added. What is the FAR definition of excess profit?

The chair of the House Committee on Oversight and Reform is proposing a new law, the "Fair Pricing with Cost Transparency Act." https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Fair Pricing with Cost Transparency Act.pdf Here's a link to the DODIG report. Scroll to the bottom for a link to the full text. https://www.dodig.mil/reports.html/Article/1769041/review-of-parts-purchased-from-transdigm-group-inc-dodig-2019-060/ What do you think? Will a new law and more regulation fix the problem? If not, what would?

See OMB memo M-21-03, Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act. November 12, 2020. https://www.osec.doc.gov/opog/Privacy/memorandums/OMB_M-21-04.pdf Footnotes omitted. What agency issued the RFP? The certification requirement might not be legal. See 41 USC 1304(b)(1). The CASES Act, if that's what we're talking about, does not require certification by a prospective contractor. There is nothing in the FAR System about the CASES Act, and there is no open FAR Case about it. The only agency that has published a regulation in connection with it is the Bureau of Consumer Financial Protection, 86 Fed. Reg. 48900, September 1, 2021.

Thanks, too, to Carl Culham!

Understood. It was a good find. Good job. This thread is a textbook illustration of how careful construction of a question and thoughtful answers improve the website.

Atlantic Systems Group, Inc., GAO B-413901, January 9, 2017. That's a good decision, but the pertinent part is in three paragraphs. A more recent decision, which cites Atlantic, is Epsilon, Inc. GAO B-419278, February 2, 2021. It is based on a FAR 16.505 fair opportunity protest: So, the answer to the Tzarina's question likely depends on the wording of the RFQ.

Спокойной ночи.

@Tzarina of ComplianceNow that is an interesting question.🙂 Unfortunately, it is one that the FAR does not answer directly in connection with FSS MAS orders. I don't have a ready answer for you. I think that the answer probably depends on the language of the MAS RFQ. The key question is whether it was reasonable for the quoter to think that the government would consider subcontractor past performance when assessing the quoter's qualifications? Does the RFQ mention subcontractors? Does the RFQ mention evaluation of subcontractors? Does it request references for subcontractors? Does it allude to subcontractors in connection with offeror qualifications? Does it mention FAR Section 15.305? The CO must look closely at the RFQ language, because that is what the GAO or the COFC will do if a quoter files a protest about subcontractor past performance, either because the government did or did not evaluate it. If the RFP does not mention the past performance of subcontractors, then the government might get away with not considering a sub's past performance. But it's an iffy matter. Ideally, the government should have thought about subcontractors when it issued its RFQ and said something about subcontractor past performance one way or the other. See CSI Aviation, Inc., GAO Dec. B-415631, Feb. 7, 2018, which suggests that the government's consideration of subcontractor past performance without saying that it would might be a problem. If the government has any doubts about the clarity of its RFQ in this matter, it should consider amending the RFQ to clarify its stance before making a decision. Better safe than sorry. That's the best I can do. Maybe someone else knows something that I don't.

Emphasis added. @Tzarina of ComplianceGee whiz, let's get it straight, shall we? What's the question: Do we have to? or Can we? A MAS order would presumably be made pursuant to FAR Section 8.405. Presumably, 8.405-2. FAR 15.305(a)(2)(iii) is inapplicable. FAR 8.405-2(c) says you can evaluate experience and past performance. In short, Your Majesty, do as you please. You can evaluate the subcontractor's past performance. Or not. And let's work on our question-asking, Ma'am. ❤️

We don't know, and it's unlikely that we ever will. I speculate that the CO issued the order before he/she modified the IDIQ contract as instructed by DCMA. It was still DynCorp's contract.

Establishing a competitively-awarded BPA valued at up to $100 million with a single contractor lets an agency issue orders without having to comply with FAR 8.405. It's a way around competition. An innovation. Don't interpret this comment as a criticism. If every buy had to be competed we'd never get anything done.

Probably? 😂

I know very little about the law of novation, but... On Feb 4, DynCorp submitted its task order proposal. On March 19, DynCorp asked DCMA for novation. On May 17, DCMA approved the novation request and instructed the COs of various contracts to modify them to incorporate the Novation Agreement. DCMA's notice said, as reported by GAO, "[T]he documentation from DCMA stated that Amentum acquired all DynCorp's assets and assumed all of DynCorp's obligations and liabilities associated with the novated agreements." It's not clear whether the CO for the IDIQ modified it before award of the task order. It the CO did not, it's not clear what the legal implications were. But... On June 15, Amentum sent a message to the CO which seemed to indicate that the CO had not modified the contract. On June 28, the CO for the IDIQ awarded the task order. I cannot tell from the GAO decision exactly what happened. The GAO sustained the protest because the CO did not adequately assess potential issues associated with "the corporate transaction and restructuring." In other words, the evaluation wasn't thorough. GAO did not say that the award was not legally proper in light of the novation. It recommended a new determination of best value and a new source selection decision, but did not say that the award could not be made to DynCorp because it was no longer the IDIQ contractor. I don't think the novation made the award to DynCorp invalid. I don't think the novation relieved DynCorp of its contractual obligations. I think it just means that it will be among the obligations assumed by Amentum through novation. But I don't know. You gotta talk to an attorney about such stuff.

Who knows what goes on in the GSA MAS program after contract award? Really, who knows? GSA's MAS rules and procedures are a wilderness. No one can sort it out, and I think that's by design. Let's adapt and adopt Dante's motto for MAS programs: Do whatever you want, if you're smart enough, all ye who enter here. Don't take my comments to suggest that I disapprove. Without GSA MASs, our procurement system would fail completely.

@Nick SanchezYou want advice about what to say at a debriefing for the winner? Really? Okay. Congratulate them on winning. Then tell them what you liked about their proposal and what you didn't like. Be specific. Suggest improvements, but warn them that the suggestions are just your opinions. Ask them if they have any questions, and answer any that you can. Then congratulate them again and say goodbye. That's it. I'm serious.

I love Istanbul, but haven't been there for a while. I wonder if the Pierre Loti Cafe is still in business.

I don't want to address any comments. It's embarrassing that a request for help in closing out a contract file has taken this much time and debate at Wifcon. Here is a link to OPM's Position Classification Standard for Procurement Clerical and Technician Series, GS-1106. https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/standards/1100/gs1106.pdf Read it and you will see that preparing a contract file for closeout was the procurement clerk's job. When I was a CO, no CO did contract closeout. And I'm talking about contracts for space systems. A clerk, unlike some ACOs today, could read a regulation. But the procurement clerk position has all but disappeared since a succession of presidents, Reagan through Clinton, sought cost savings through elimination of the procurement clerks and the GS-1105 purchasing agents. Now you have to have a college degree, a CO certificate, and be a GS-12 to do the simple work required by FAR 4.804 and to conduct "simplified" acquisitions. Of course, the way some people here envision the job, maybe you need a Ph.D. and a presidential appointment. Acquisition "reform" has resulted in contracting officers who come to Wifcon seeking a "template" for a memo that should say little more than: We were unable to locate the contractor. It appears that they may no longer be in business. So we are closing out the file at this time by completing the checklist in FAR 4.804-5 to the best of our ability. Where we have been unable to obtain information needed from the contractor, we are entering, 'Not available." /s/ Contracting Officer If you can't find the contractor, just get on with it! How low we have fallen. It's all part of the general decline of our Federal government. Catwoman says bonne nuit.

Batty's an ACO(!) with a job to do. If I had that job I would have had it done in the time it is taking to finish this thread, especially now that C Culham is in the mix. Right now I'd be sharing a glass of wine in a Paris Bistro with Anne Hathaway (Cat Woman), discussing Proust's portrayal of Misia Sert as Princess Yourbeletieff and planning dinner at Le Florimond in the 8th. We'd buy a small dessert to take back to the apartment. And Madeleines. Closeout used to be a procurement clerk task.

The phrase "closing statement" appears only twice in the FAR, at 4.804-5 and at 49.303-5. At the latter, it's a closing statement of costs. I assume that FAR 4.804-5 is referring to FAR 49.303-5, which is not a release of claims. Release of claims is a term of art that is widely understood to mean just what it says. As for FAR supps, it a supp calls for a release, then Batty should cite it. And no, a FAR supp is not the FAR.

I don't know of any FAR requirement for a release of claims prior to closeout. Where is that requirement? What could you do if the contractor told you to get lost?

The participants told me they enjoyed it and found it useful. They told me they learned a lot. I didn't act as a discussion leader, and I didn't participate in all their discussions. In retrospect, I wish I had. Group discussion is hard and requires a guiding hand. I now think that a tutorial approach, in the style of Oxford University, is a good technique, but it requires skill on the part of the tutor that most teachers, including me, don't have and must develop. See https://www.osapabroad.com/academics/the-oxford-tutorial/ That's one reason I'm reading Ward Farnsworth's book about the Socratic method. It also requires some aggressiveness and self-confidence on the part of students. The reading and discussion group approach requires real commitment on the part of each and every participant, which we had in the pilot program. I think lectures are still useful, but the approach must be active—show them, rather than tell them. I find students today to be lousy note takers. And nothing annoys me more than people with open laptops tapping away madly while you lecture.

@ArtimpaI believe the applicable contract clause is GSAM/R 552.238-80, Industrial Funding Fee and Sales Reporting (JUL 2020). It reads in part as follows: Emphasis added. CCulham has already pointed out that clause. Now, where does the clause say anything about paying the IFF when you sell to someone off schedule at the same rates as in your schedule contract? Where does it say you even have to report such sales to GSA? Let us know when you find it. Does anyone know of another clause that requires payment of the IFF against non-schedule sales?

Here's a link to a 2008 DODIG report that discusses conflict between an Army buying office and the DCAA in an alpha contracting negotiation: https://media.defense.gov/2008/Jul/03/2001713289/-1/-1/1/08-107.pdf I guess those pesky auditors didn't want to be sufficiently relational.