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WifWaf

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  1. Good morning, Patrick: I don’t know if your background is in contracting, accounting, or computer science. I just ask you to please tell whomever wrote your recent ad about this DPC memo to read this reply in the thread. Thank you for attention to this matter. In its context, the DPC memo is placed in a military-industrial culture of compliance, which is only a corpse of what it should be. There are no ligaments or sinews connecting this complex organism to its foundational principles. There are only bones left, because decades of decaying foundational knowledge has retired or inflated into Senior Executive Service and corner offices without passing itself down. The knowledge that has been passed down has been unprofessional because that is easier to teach (and easy = lucrative). As a result, nowadays the people that should serve as those connections are not daily seeking partnerships over a shared connection to a head: professionalism. Your report of problematic pushback should be taken with this in mind. As a professional, when I say above that I would prefer price analysis, I would really like to make connections with my counterpart to respectfully partner up and understand the price. I would then like to posit the Government’s interest into what is being offered because only I can do that. My counterparts will not and cannot offer this interest due to their shareholder interests. The recent NDAAs have assisted with this in the rules, and you can find specifics about those changes via research here on WIFCON, but really what it all comes down to is working the rules to meet this need. That’s horse before cart. A compliance culture is cart before horse. And I would just like to ride into battle against our enemies on a properly oriented chariot. I hope you do too. To partner, we must take regulation and apply professional interpretations. And we must care for each other’s interest in doing so. The prime contractors that are following Table 15-2 instructions to “Conduct price analyses of all subcontractor proposals” should be fully enabled to do so with your help on the subcontractor end. You can play a part in creatively identifying the great unknown “data other than certified cost or pricing data obtained from a subcontractor” these instructions mention at II.A.(2) that catalyzes our exodus out of the military-industrial culture of compliance, and into partnership. Your background and breadth of understanding can be instrumental in this if you would only connect to the same head to which your counterpart should connect – and insist on no less. I am asking you to breathe new life into this corpse and be creative. We have an opportunity here, to connect together and meet each other’s interests. Sales and buying should always have been this way: please, try to remember.
  2. No, but we’ve received Hatch Act training twice over the past month in my political appointee-run org.
  3. If it's ideal and necessary, put in the United States Constitution. Or don't, and watch the power dynamics of Washington twist and manipulate the intent to each passing fad's whims.
  4. It directs HCAs to submit nonratifiable commitments to GAO, but that would then restrict the exercise of the extraordinary emergency authority granted by Public Law 85-804 (50 U.S.C. 1431—1434) to the secretariat level, per FAR 50.102-3(e)(1)(iii):
  5. Does GAO handle claims, or are they under COFC jurisdiction?
  6. The "commercial item" definition was always a negotiation standard. A negotiation standard is briefly described in the below link: https://www.pon.harvard.edu/daily/salary-negotiations/the-power-of-standards-how-not-to-negotiate-your-salary/ Between the people at DOD and at prime contractors that negotiate proposals, the veracity of whether or not an item is "commercial" is often only tenuously obtained. This is why a later NDAA had to mandate "no givesies backsies" on CIDs - because adherence to the commercial item definition was usually in the eye of the beholder. Each beholder independently found the definition to be subjective, rather than objective. Just look at it - and try to do so intently. Think back to the last CID you wrote that was challenged by DOD, and how simple it seemed to you. Your counterpart, likely approaching the proposal with a compliance-with-the-law mindset, was left unable to judge compliance with this gobblety-gook: The DPC memo is wise enough to realize this, and to apply that same experience to this new negotiation standard. Look and see, the standard is objective! Not having to define "evolved from" or take any sort of training to try and judge compliance (just to seem, by the way, like a tyrant during negotiations)? Sign me up! I will do the price analysis and move onto the next cost element, thank you very much. Yes, that's much better.
  7. The Federal Register's ambiguity was that its prefatory statements said the authority is not extended to primes, yet further down its DFARS amendment can be read to indeed extend the authority to primes, by the DFARS 252.215-7010(e) flowdown provision. In essence the Council's response to that comment failed to eliminate the commenter's rightfully identified ambiguity. The statute is silent on the matter. From the effective date of that rule on, now, every affected solicitation's ambiguity is that the -7010 provision's flowdown requirement can reasonably be perceived to allow offerors to use a NDC commercial exception on their subs, instead of just the FAR 15.403-1(b) exceptions cited in FAR 52.215-12. In 2022 I said the removal of the flowdown provision would clear up the ambiguity. Instead, the recent DPC memo goes the opposite direction and doubles down on the Federal Register's ambiguity. If you believe the -7010 provision can only be read one way and is practicable on its face, then you may say there is no ambiguity. But I think the DPC memo is proof that is not the case.
  8. Yes, I'm sure they coordinate, but the result of all that coordination in 2017-18 was an ambiguity between the rule's prefatory statements and its amendment of the DFARS. Practitioners must have been following the DFARS provision rather than the prefatory statements. Conduct of the parties may prevail in deciding an ambiguity. It's been six years.
  9. Are you referring to the Director, DPC, or to the DAR Council? Government by bureaucracy means one unelected official is not accountable to the others' statements, unless some sort of charter (e.g., the U.S. Constitution) establishes a check and balance making one beholden to the other. Can you identify one here? I think you may have missed the memo. If one analyzes it to have a proper introduction, body, and conclusion - as mandated in Chapter 7 of Department of the Air Force Handbook (DAFH) 33-337, The Tongue and Quill Guidance Memorandum, dated 14 Dec 2023 - then the memo not only explicitly addresses subcontractor NDC determinations in both the intro and the conclusion (quoted below), but also implicitly addresses them in the body.
  10. In the following memo the Director, DPC, states, "[T]his memo reminds Contracting Officers (COs) that contractors may make an NDC determination about their suppliers and subcontractors, so long as the suppliers and subcontractors meet the definition of an NDC, as defined in 10 United States Code (U.S.C) § 3014." (Emphasis added). https://www.acq.osd.mil/dpap/policy/policyvault/USA000996-24-DPC.pdf Until case law challenges it, this statement settles a debate from the above thread. The holes in DOD COs' noncommercial subcontract arguments make it not worth delaying award. Instead, I will foot-stomp my advice to COs: "[R]ead, as your DFARS PGI 215.403-1 instructs, the DOD Guidebook for Acquiring Commercial Items Part B: 'Pricing Commercial Items'. Be ready for sole-source contractors to challenge you by saying there is no requirement in your solicitation for their subcontractor to submit cost data...So embrace the challenge of having to throw out your old process and templates where the sub submits a cost build-up and gets audited, and begin gathering market research on your upcoming subcontract costs instead." Whether Congress intended this, or if, instead, the rule's promulgators were unclear about contractors' authorization to make NDC determinations, would be up to the courts to decide. Don't count on it - just do the price analysis!
  11. Revisiting this thread because the latest FAR Final Rule to arise from an Executive Order is a case study in civic action. It shows what happens when the public simply acquiesces to the regulators. Compare its comment I located here (at regulations.gov, Tracking Number ln9-m78q-sml9) that does not shine FASA's light on the FAR Council's proposed rule: ...To this one (at regulations.gov, Tracking Number luh-gcv4-yszk, also viewable here) about the instant thread's Proposed Rule, that does shine FASA's light on it: I will be interested to read the FAR Council's response when the instant one goes to Final Rule. The two distinct groups may have their individual motives for commenting, I understand. I, on the other hand, am only interested in furthering a just society. So far, we have the FAR Council's response to the first comment above, which I provide below. Once the second one receives its response, I will edit this post or start a new thread in the "What Happened" Forum here.
  12. Humility. It has its perks. Applicable at all stages of a career (and beyond).
  13. Well, CAAC will have to concur on a set of clauses that is a moving target, unless these kinds of Proposed Rule comments prevail. Meantime, COs can tailor, but only up to a certain point. Am I correctly inferring you would not check any of the 107 possible clauses "to implement provisions of law or Executive orders" that the CO can incorporate into a commercial contract where the clause says "[Contracting Officer check as appropriate]" in paragraphs (b) and (c) of FAR 52.212-5? After all - and drastic as it seems - that is essentially what the 809 Panel recommended the FAR Council do, in Volume 1 Appendix F, Tables, F-5 through F-8.
  14. I understand the existing tailoring allowance, but my question gets at the statutory requirement the Section 809 Panel said is not being met by any of the clauses in FAR 52.212-5 nor DFARS 12.301 (and I view FAR 12.301(d) and DFARS 212.301(f) to be the same marching orders to COs). The Panel said the FAR and DAR Councils were applying their clauses to commercial items, despite the fact that that the statutes and E.O.s being promulgated were silent on the matter of commercial item applicability. This is counter to 41 U.S.C. § 1906 (FAR) and 10 U.S.C. § 2375 (DAR) requirements. Is the above comment the right one to further the 809 Panel’s Recommendation? Specifically, this one: And this one:
  15. I would like to highlight a comment I found on a Proposed Rule here, on regulations.gov: “Title VIII, section 8002 of the Federal Acquisition Streamlining Act of 1994 stated that the FAR shall contain, ‘a list of contract clauses to be included in contracts for the acquisition of commercial end items. Such list shall, to the maximum extent practicable, include only those contract clauses – (A) that are required to implement provisions of law or executive orders applicable to acquisitions of commercial items…; or (B) that are determined to be consistent with standard commercial practice.’ Therefore, please include an exception in the proposed FAR Part 12 clause prescription, for commercial product and service industries in which the Contracting Officer determines the Proposed Rule's clausal requirements are not standard.” (Emphasis my own) Whereas OFPP’s FAR Case in question, No. 2023-021, seeks to add the prescription to its proposed FAR Part 22 clause into FAR 12.301, this comment appears to follow the Section 809 Panel’s Volume 1 Recommendation 2, “Minimize government-unique terms applicable to commercial buying,” instead. I can appreciate this commenter’s search for a practical way to make our government enforce FASA. Is this comment the right one to further the 809 Panel’s Recommendation, or does it misunderstand the intent of the Panel? Or, does it not go far enough?
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