WifWaf

Humility. It has its perks. Applicable at all stages of a career (and beyond).

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.

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:

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?

For perspective, BAH consistently falls in the top 25 of the Defense News Top 100 Defense Companies each year, with about 70% Defense revenue. Total revenues of $8.4B in 2021.

A whistleblower led DCAA and DOJ to allege under the False Claims Act that Booz Allen Hamilton (BAH): Allocated indirect costs that supported Booz Allen’s commercial and/or international businesses to Government contracts and subcontracts that should have been allocated to commercial and/or international contracts or should have been treated as unallowable costs…; Created and maintained indirect cost pools that included commingled costs supporting both (i) commercial and/or international contracts and (ii) Government contracts and subcontracts, and by virtue of such commingling allocated indirect costs disproportionately between commercial and/or international contracts and Government contracts and subcontracts, and thus were not in compliance with the CAS or FAR, including but not limited to the homogeneity and proportionality requirements in CAS 418 and the allocability requirements in FAR 31.201-4; Used costs and cost rates that included indirect costs supporting Booz Allen’s commercial and/or international businesses to seek inflated payments and reimbursements under its Government contracts and subcontracts, and failed to disclose current, accurate, and complete cost or pricing data related to such costs resulting in inflated prices for Government contracts and subcontracts; Submitted inaccurate and/or misleading statements (including but not limited to in its CAS Disclosure Statements) regarding the methods by which it accounted for, and the nature of, indirect costs supporting its commercial and/or international businesses; and Shifted employees and work relating to its commercial and/or international businesses between Responsibility Centers in violation of the requirements of the FAR and CAS, thereby creating and maintaining indirect cost pools that were not in compliance with FAR or CAS resulting in misallocations of indirect costs to government contracts. A9ciwbp5_sjmaca_bro.tmp (justice.gov) The resulting settlement was for $377,453,150 covering 10 years of alleged noncompliance. These allegations happen a lot at the DCMA Cost and Pricing Center in my experience, but they don't usually result in a settlement remotely close to this sum. Recommend DCAA auditors and DCMA Cost Monitors examine their audit report findings for similar allegations, and coordinate with the BAH CACOs and DACOs to learn the details of why this case worked out in the Government's favor. veritas numquam perit

“This report concludes that the Department does not find a need to modify its weighted guidelines structured methodology of arriving at objective profit positions for negotiation.” I guess this report could go in the What Happened forum series concerning this thread:

This is FAR 15.406-3, "Documenting the negotiation." See also: 15.404-1, "Proposal analysis techniques." Contract Pricing Reference Guides (dau.edu) These sound like commercial products and services, in which case your reprieve is you generally get to use price analysis instead of cost analysis. Again, my responses here are focused on what happens after you've competed your subcontract.

Having been through the ringer last decade trying (from the DCMA side) to get a contractor's disapproved purchasing system to meet an acceptable corrective action plan, I suggest you answer your question 1 by writing a handbook section that lays out your company's thinking on the matter - and then be done with it. In this way treat practicality like reasonableness, which is defined at FAR 31.201-3 with two succinct theoretical paragraphs that beg the practitioner to justify his/her actual practice with a memo that points back at this theory. The memo simply has to make objective sense applying theory to the instant facts and circumstances. With that done and over with, you really need to focus on the DFARS criteria surrounding your question 2. I would be highly concerned about the CPSR team judging the adequacy of your cost and price analyses. These are always where talks with my contractor broke down. I will provide you a sample corrective action request from a document I kept, below. Study very hard what is, in your market, an "adequate" cost analysis if you want to avoid being disapproved on these grounds:

@ContractJockey Know your sources... That one is stealing, apparently foreign, and sounds robotic. I will foot-stomp:

Mr. Edwards, I am reminded of you in nearly every enlightened book I read these days. For example, I thought of your contributions to this forum when recently rereading this passage from Haidt, Jonathan and Lukianoff, Greg: See The Coddling of the American Mind: How Good Intentions and Bad Ideas are Setting up a Generation for Failure. Penguin Press, 2018. Your contributions to the cause of scholarship here will be missed. Those of us that do not live by the whimsical, postmodern standards of the day are all going to have to step up and learn how to do this right, for truth's sake.

So when push comes to shove, and the lack of billets filled force this do-more-with-less ethos, the best managers should have previously learned and come up the ranks in their offices so well that they can navigate where best to start to skimp on enforcement - be it an obscure, agency-level regulation, or perhaps things OFPP issued and doesn’t enforce, e.g., Performance-Based Contracting and nonpersonal service language crafting in the PWS. There’s a list of all admin functions that DCMA supervisors could examine in FAR Part 42 and DFARS 242 but they’d have to know their office-level implementations of each function. Either way, my point is that this it is management’s role, not a practitioner’s role, to decide where to cut.

Thanks for your thoughtful openness, CO.

I am sure this is sarcasm but I would send your thanks right up the flag pole if it were real. You can instead thank the managers that assigned 200 contractors, which totaled nearly 2000 contracts or assistance instruments worth $2.5B, to a GS-12, and whom then had the audacity to track the approval of each business system though data metrics 4-6 levels above my supervisor. That sort of reasoning - "we have to satisfy our internal customers (PCOs)!" - becomes insanity as you scale its application up.

Or, were you told the world is a better place because you're in it. I am a Millennial and I am very curious about my peers' upbringings. Were you ever taught to put hard work into doing things, e.g., being right and moral, or were your caretakers and teachers assuming you were already a righteous and moral person that society was just waiting to corrupt, you think?