Don Mansfield

Do the RFPs contain 52.204-8?

formerfed, I agree, but we should acknowledge that COs generally do not put much thought into negotiating subcontracting goals for specific contracts. They will insist on predetermined goals assigned to their agency instead of considering what they are buying, the contractor's past subcontracting accomplishments, the industrial base, etc. This can lead to unrealistic subcontracting goals. A few years ago, the Navy issued an edict that 40% of ship repair contracts were to be subcontracted to small business. If you maximized the capacity of all of the small business concerns that supported ship repair in San Diego, you wouldn't come close to 40%. The local shipyards complained, I advised the PCO that the goal wasn't realistic (I was the Deputy for Small Business), but the PCO didn't care--40% was the magic number. Not only that, the consequences for not meeting the 40% requirement were stiff when it came time to determining award fee. It wasn't long after awarding contracts with these goals that we started seeing new small business subcontractors whose sole purpose was to manage other subcontractors. Just wanted to point out that the Government can have a role in such contractor behavior.

Apparently, the CO didn't read the FAR either. FAR 16.504(a)(4) states: Italics added.

First, it's not a clause. Second, the implication in FAR 15.002(a) is that evaluation criteria are unnecessary in a sole source acquisition. To interpret FAR 15.002(a) as you suggest would clearly be incorrect. I don't think that you understand what evaluation criteria are. Evaluation criteria are used to discriminate between and among competing proposals (See FAR 15.304((2)). In a sole source situation, there's no need for that. Of course, you need to determine that the price of a sole source contract is fair and reasonable. However, this doesn't mean that "Price" is an evaluation criterion.

Georgeml, FAR 15.002(a) states: Italics added. Why do you think it says that?

Did you read DoD 4400.1-M, "Department of Defense Priorities and Allocations Manual"?

Vern, Orion's response to my question ("That's an interesting question...") shows that he doesn't seem to be aware of the Christian Doctrine, which is why I provided him the link. The link wasn't supposed to answer his question about whether clauses could be added unilaterally. formerfed already answered that.

Orion, Read this: http://www.certifiedksolutions.com/blog/?p=102

What's worse, giving bad advice or no advice?

Tom, What does the agreement say about rights in IP? Ownership of IP and rights in IP are two different things.

You think that a contracting officer has the authority create an obligation that exceeds the amount of funding available?

brian, What if the the Termination for Convenience clause was not in the contract? Does that mean that the Government could not terminate for convenience?

Did you read the Changes clause in the contract? Does that not answer your question?

In another thread, I wrote: This seemed to upset some people, so I thought I would test my hypothesis. The rules of "Win the Government's Money!" are analogous to the situation I described. If you're the lowest without being too low, you win. You also get a bonus for winning, which represents the profit you would end up making on equitable adjustments. You don't know the profit you would make when you submit your bid, but you have an idea of a reasonable range. Some would argue that it's dishonest to submit a below-cost bid with the intention of making up for a loss through profits gained from equitable adjustments. I don't see such behavior as good or bad--I think that it is a logical consequence of the rules that govern the process.

Vbus, you still would have lost. The good news is that you won round 2 with a bid of $975,000. Your bonus money is $26,771, which makes your score $1,771.

If the Government used a more stringent test than what was required by the contract, then the contractor could submit a claim for any increased costs under the constructive change theory.

Ok, The bids are as follows: dgm $ 980,000.00 jljordan $1,008,402.66 brian $ 993,000.00 vbus $9,980,001.00 dgm wins! dgm's score is -$20,000. But now we will apply his bonus for winning. The random number chosen is 217884. dgm gets 10% of this amount added to his score. Thus, his final score is: -$20,000 + $21,788 = $1,788 Thank you for playing. Would you like to play another round? Same rules. Bidding closes on 5/4 at 4:30PM EDT. Good luck.

Vern, It shouldn't surprise you that I'm trying to weasel out of what I wrote, given my utter lack of integrity. You wrote: I guess that means that you agree that the savvy contractor was not doing anything improper in my scenario. However, you seem to be reading definition (1) of "buying-in" as saying that "unnecessary or excessively priced change orders" are the exclusive machinations to "increase the contract price after award." Why?

Thomas, The "too close at hand" rule applies when the agency has actual knowledge of an offeror's past performance, usually because the offeror is an incumbent contractor. When Offeror A alleges that Offeror B has performed poorly on a different contract, that does not make the agency knowledgeable of Offeror's B performance on that contract. All the agency knows is that Offeror A has alleged something, which the agency can pursue or disregard.

Vern, You selectively quoted me and omitted my explanations. Thanks. My last post explained my position: By the way, you misread the FAR. You wrote: That's not what it says. The definition of "buying-in" is as follows: "...through unnecessary or excessively priced changed orders" is only given as an example of a method of increasing the contract amount after award. This definition does not say that it is the only method for increasing the contract amount after award, which is what your statement implies.

Welcome to "Win the Government's Money!" The rules of the game are as follows: 1. You are a Government contractor and your goal is to make as much money as you can. 2. You are bidding on a contract that will cost you $1,000,000 to complete. 3. You must bid a single fixed-price to complete the contract. If you submit the lowest bid, you will win the contract. However, your bid price must be realistic or you will be found to be nonresponsible. 4. If you win the contract, your score will be your bid price minus $1,000,000. 5. After the winner has been decided, a random number will be chosen between $200,000 and $400,000. 10% of the random number selected will be added to the winner's score. Are you ready to play? If so, send me your bid through the messenger function by clicking on my name at the left. Don't post your bid here. You have until tomorrow at 11:00AM PDT to submit your bid. The results of the competition will be posted here. Good luck!

Well, a stop-work order wouldn't make sense because there is no work to stop. Also, if you issue a stop-work order, then the contractor would be entitled to costs plus profit. If you do nothing, the contractor may request an equitable adjustment pursuant to the Government Delay of Work clause (assuming that clause is in the contract). However, they would only be entitled to costs (no profit).

here_2_help, Understood. My point was that the savvy contractor in my example hasn't broken any rules. He's taking a calculated risk to reduce or forego an allowance for profit in his proposed price in order to win the contract. He does this because he expects there to be a lot of change orders and he knows that he is entitled to a reasonable profit on equitable adjustments. In an environment with intense competition where price is the dominant factor (or only factor) in deciding who gets the award, and the type of work lends itself to numerous contract changes (e.g., construction, ship repair), this is often a successful strategy. Such a strategy is a logical consequence of procurement practices that 1) place a dominant emphasis on price when selecting contractors and 2) provide for a reasonable profit when making equitable price adjustments to contracts as a result of changes. You and Vern seem to have equated such a strategy with submitting false claims. While contract administrators should be extra vigilant for false claims when administering a contract with a contractor who has proposed a low price, this does not necessarily mean the contractor is dishonest for employing the strategy that he did. Vern, I don't think that you understood what I was saying. Read the paragraph above.

Is the contractor waiting on your decision before proceeding? If so, what work is there to stop?

Right. But how does that disprove what I wrote? Each time the contractor gets an equitable adjustment, the $200,000 left on the table is reduced by the amount of profit in the equitable adjustment. Who said anything about falsely inflating estimates? Jail for taking advantage of the CO's incompetence? C'mon. Read Buying-In: An Improper Business Practice (18 No. 4 Nash & Cibinic Rep. ? 14).