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Everything posted by metteec

  1. A lot of people are bashing COs, or calling them lazy, but I wanted to provide an alternate view. Some people may chide me for saying this, but from personal experience, there are situations where the CO has a choice between going along with a poorly written justification or facing negative career implications. In this instance, there were several very high ranking individuals that approved this justification, many who were in a position of authority over the CO. I have experienced management pressure a CO to make a predetermined decision and in a limited amount of time. The CO can choose the ethical road and become a road block, usually at the actual or implied threat of his or her career. What I think could have happened is that the end of Fiscal year budget scrub found a bunch of money that the AF wanted to spend and someone high up wanted shiny new iPads. The CO was sent a Requisition with a few weeks or days before September 30 to enter into a contract. The CO had twice as much work to do because of the AF's hiring freeze. The information that the CO had was already sloppy, and the CO did not have any time to correct them because they were working on more important projects. The dollar value of the acquisition was not very high for an AF procurement, and the CO choose not to be a roadblock to avoid the ire of his management over a relatively small procurement. I have had several COs from different agencies (both DOD and Civilian) tell me that when their management is involved in contracting related decisions, they are afraid that taking the ethical road will result in "does not work well with others" in their performance review or getting a write-up for insubordination. Some may say that these people should grow a spine and stick up for themselves, but the reality is that people have mortgages and family members to take care of and they are not going to risk career suicide. Historically, despite the government touting its whistleblower protections, many well-intended whistleblowers end up as pariahs. GovExec reported back in July that retaliation against whistleblowers is now reaching a level where agencies file criminal charges against employees, requiring thousands of dollars in legal fees. My point is that this may be an agency problem, not necessarily a CO problem, and it is not limited to just the AF.
  2. Here is the solicitation for the AF Language Portal (it was a FPP 8(a) set-aside using FAR Part 15): https://www.fbo.gov/?s=opportunity&mode=form&id=4ff0b6d80253db0937d4f5d0559d70a7&tab=core&_cview=1 This was the evidence that I used to come to the conclusion that Apple had an unfair competitive advantage that led to this sole source. You will note that the services to design the language portal included both Apple and Windows environments (few mentions of Android). You will also note that there is not a Justification for Other than Full and Open Competition which states why the agency decided to limit the language portal to only certain manufacturer's products. In fact, Section 2.2.1 of the Language Portal contract stated: "The Contractor shall integrate and maintain Air Force-provided Cryptologic Skill Proficiency Testing (CSPT) and training materials on the Language Portal. Additionally, the Contractor shall develop and integrate software applications compatible with mobile devices such as the Apple iPod Touch or iPhone and provide compatible functions with operating systems such as iOS and Android." Lastly, it leads to the question, if the AF developed the language portal for both Windows and Apple products, why is the solicitation for tablets limited to only Apple products?
  3. AF got the title wrong, it is really a Justification for Exception to Fair Opportunity. Part 6 was my favorite part. The rationale is split up into two reasons: 1) Only the iPad Air will meet their needs because while there are bigger, better, cooler laptops out there, but "many people prefer" the iOS operating system; and 2) the Apple store is the only source that has the Airforce's Language Portal on it. The first claim is unsubstantiated; as many people prefer other operating systems, as well. The second claim is true, but that is because AF has not provided their applications to the Google or Microsoft application store. In other words, the AF gave Apple an unfair competitive advantage over other stores that resulted in this exception to fair opportunity. While l commend people for being against this, the AF will get away with this. The going rate plus accessories for those iPads is about $700 each. For 4,000 devices, you are looking at an award easily under $3 million. Per FAR 16.505(a)(10)(i)(B ), this potential order is not protestable because its value is less than $10 million. If a Vendor were to protest, the agency would file an order for dismissal and would win on grounds that GAO does not have authority to review.
  4. jonmjohnson, I am not sure what you disagree with me about. Did you disagree with the four areas that I said led to confusion or with the recommendations to improve clarity (or both)? Regarding the flow down of clauses, if the issue was so clear as you are making it out to be then there would not be Contracting Officers including tons of clauses in their solicitations and there would be no question to whether FAR Part 12 applied to a proposed Task Order against a FSS including FAR Clause 52.212-4 and 5 (see Health Data Insights, Inc.; CGI Federal, Inc., B-409409, April 23, 2014). If you read my post again, aside from the protest limitation recommendation, none of my recommendations to improve FAR 8.4 clarity have a substantive affect on a Contracting Officer's flexibility. They merely serve as a instruction for issues that commonly mix up Vendors and Contracting Officers.
  5. Cs123, good point about the confusion regarding open market items on FSS purchases. Both Vendors and COs get mixed up on this issue a lot. The Rapidscan case comes to mind when the CO tried to allocate the cost of open market services to an item on the FSS to get around the FAR Section 8.402(f) requirement (see B-401773.2; B-401773.3, Rapiscan Systems, Inc., March 15, 2010).
  6. I think that the lack of specificity in FAR 8.4 is what creates some complication. For a "streamlined" procedure, this allows the section to be more open to interpretation. For example, FAR 8.4 is: - silent about what clauses to include. I have seen extremes on Task Orders with almost every commercial clause included and some with no clauses included. - sparsely detailed with source selection guidance compared to FAR Part 13, 14, and 15. - ambiguous, as results may vary with terms like "brief explanation." - scattered, with requirements and limitations listed in multiple FAR Parts. For example, FAR Subpart 17.5 includes a requirement for a best procurement approach for GSA FSS orders over $500k. Why couldn't they have included this in Subpart 8.4? If I were given the pen to rewrite the Subpart, I would try to consolidate all FAR 8.4 requirements; include a disclaimer about using other FAR parts like FAR Part 13 does; and include a section identifying what, if any clauses are required (or whether they flow down from the FSS. Further, I'd add the protest restriction that is in FAR Section 16.505.
  7. Vern, I see your point; I browsed a few executive orders in the last year and I see some that have a disclaimer that they are not intended to have a legal effect.
  8. I would argue that executive orders, at their inception, have the force and effect of law. I believe Vern's point was that executive orders only have force and effect of law when grounded with legal authority, with several examples where the courts have overturned executive orders. No one can challenge that there is a long history of courts overturning executive orders. Vern's point can be carried with any act of legislation (or rule-making through the Administrative Procedures Act). Even laws written by Congress, signed by the President, and codified through substantive regulations have been overturned by the Courts. As Contracting Officers, we do not have the legal authority to invalidate an executive order. You have the right to challenge an executive order through the judicial system. Failure to adhere to an unchallenged executive order may not lead to hanging, but it is definitely insubordination and grounds for dismissal. We cannot treat executive orders as a legal Schrödinger's cat dependent upon the outcome of a court decision that may or may not ever happen. P.S. Thanks for the legal citations.
  9. I would think the penalty for ignoring an executive order would be at a minimum insubordination. Further, executive orders have the force and effect of law, and as a contracting officer, we have a duty to comply with Federal law. I read the intent of FAR 8.405-3 as Congress wanting agencies to "spread the wealth" in BPA awards by making multiple awards. The advantage is that agencies could have a litmus test to determine prices fair and reasonable by competing each Call Order with BPA holders. On the same token, agencies can choose to make a single award, but it is more difficult. The purpose of the "unilateral option" is more of a mechanism to ensure the single award BPA still represents the best value I was originally unsupportive of the language in FAC 2005-50 that included the option requirement for these types of BPAs. However, in practice this change has saved at least a few agencies a couple million dollars. Contract specialists now are forced to at least document to their reviewing officials that they reviewed the BPA prices and GSA schedule before the agreement is extended. In one such review two years ago, we found that the Contractor's GSA rates were adjusted downward because of the EPA clause. The Contractor conveniently neglected to tell us, but because of that review, we negotiated a price even lower than that revised schedule rate.
  10. Vern, you had stated, "[t]he answer is NO, the SSA has no "duty" (moral or legal obligation) to look at the actual proposals, unless he or she thinks that's the only way to make a sound decision." My point was that, even though there is not a duty, there may be reasons to review the proposals other than the single reason that you stated. I can't disagree that the SSA for hundreds of SSACs probably does not have time to read each proposal, but this is not the case on the civilian side for many agencies.
  11. Don, I would not go as far to say the Contracting Officer would have no authority to modify the contract. FAR 52.212-4© provides express authority to modify the contract. The Contracting Officer could still modify the contract by operation of law; supplemental agreements are deeply rooted in common law. But Block 13 of the SF-30 requires the Contracting Officer to state an authority, and I am curious what others would put there.
  12. We are in agreement ji20874. I was merely stating why I would read the proposals anyways.
  13. I remember when FedBid came back in 2009. There was an SES, along with FedBid staff, that came to teach the contracting office on how to use FedBid under the guise of influencing staff to use FedBid for supply purchases. FedBid was heralded as the next generation of contracting, with these illusions of millions saved and a streamlined award methodology. For a few months after that training, we would received informal reminders to use FedBid for certain purchases, but there was never any written procedural regulations. During that "training course," FedBid tried to obfuscate was the 3-percent fee you had to pay for every transaction. Keep in mind, this fee is on top of the vehicle access fee (for example, 0.75-percent IFF for the GSA FSS). With most supply purchases having razor-thin margins, 3-percent was huge. It did not take much business savvy to determine that the only one benefiting from using FedBid was Fedbid. Even worse, there were no restrictions for what company could respond in FedBid. If you requested quotations from GSA FSS Vendors, you would get open market responses from Vendors pretending to have a GSA FSS. The "streamlined award" methodology was marred by having to spend extra effort to determine whether the Vendor actually complied with the terms of your solicitation. I think that this story with the VA is the beginning of the end for FedBid. Good riddance.
  14. Vern, you reminded me of that commercial where a lady is shopping for books in the bookstore and she goes to take a peek inside one of the books. The sale clerk abruptly stops her and says, "Sorry ma'am, you may only purchase these books based on their covers." While the FAR 15.303 does not require the SSA to review proposals, I review the proposals anyways. I read them for a couple of reasons: 1) I am curious; 2) It helps me review the SSEB's report when I am already familiar with the proposals; 3) Sometimes I find problems in the proposals that the SSEB never addressed; 4) I can learn more about my solutions to our technical needs to help us in our future requirements; 5) If I see multiple Offerors making similar mistakes in their proposal, it can help me and my team develop clearer instructions in future solicitations; and 6) Overall, I feel more prepared defending the agency's overall decision when I am familiar with both the proposals and the SSEB's report. So while there is no requirement to review the proposals as the SSA, it is my opinion that there is a value added in taking a looksie.
  15. Vern, by that definition you provided, state and local government employees would be allowed to receive federal contracts. If I take your advice and look at the plain language and the dictionary definition, I think that the restriction also applies to any government employee, regardless if it is at a state, local or federal level.
  16. Thanks Don. In this hypothetical example, the modification is to change the Task Order's terms and conditions. Further, those changes would have a substantive affect on the rights of both parties.
  17. Here is a hypothetical kit kat for thought: If Judge Williams' interpretation of FAR Part 12 not applying to FAR Subpart 8.4, to which authority does a Contracting Officer modify a GSA Federal Supply Schedule Task Order for commercial items? Let's assume that there are no commercial item clauses in the contract. What authority would you cite in Block 13 of the SF-30?
  18. Don, In response to your questions: 1) In all of the agencies I have supported, the approved J&As are included with the Purchase Requests. Yes, I would have the J&A approved prior to conducting my negotiations. Otherwise, if the J&A for some reason the J&A is not approved, you have provided the prospective contractor with an unfair competitive advantage. 2) I issue the complete solicitation package to the prospective contractor and provide them with a reasonable time to respond to the solicitation and ask questions. After my technical team reviews their proposal, and I review their cost/price information, I begin negotiations. 3) It is possible that they could suspect that the action was not competitive by the absence of the synopsis. I'd think most prospective contractors would be too busy figuring out what to do to respond to the solicitation, rather than checking to make sure I synopsized properly. However, there are also multiple exceptions to the synopsis requirement. If the prospective contractor were to ask me why I did not synopsis, I would respond that "We made a determination that a synopsis would not be appropriate for this acquisition at this time." Further, I would not send the solicitation directly to the prospective contractor. I would create an e-mail that appeared to be addressed to multiple parties and BCC the prospective contractor (which I do anyways in correspondence for a competitive solicitation).
  19. Hi Don, Per FAR Section 5.203©, for a non-commercial item I would wait 30 days after posting the notice prior to award. For a commercial item, per FAR Section 5.203(a), I would wait 15 days after posting the notice. I have had other Contracting Officers argue with me that for a commercial item sole source contract action, that they can issue the notice for a "reasonable time" shorter than the 15-days. I'd like to point out that the previously mentioned FAR citation makes a distinction between "solicitations" and "a proposed contract action the Government intends to solicit and negotiate with only one source." The exception at (a)(1) applies only to solicitations. Based upon my interpretation of the changes in FAC 2005-24, I do not think the exception at (a)(1) applies for a proposed sole source action for commercial items. Source: "(a) An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302, except that, for acquisitions of commercial items, the contracting officer may— (1) Establish a shorter period for issuance of the solicitation; or (2) Use the combined synopsis and solicitation procedure (see 12.603)." Edit: I feel it is important to also point out the many agencies completely ignore the synopsis timeframes for sole source actions. However, the business community is partially culpable because they rarely challenge agencies for using shorter timeframes than allowable.
  20. You know what really rips my contract? When I see in an FBO solicitation where the Contracting Officer stated in Addendum E, Evaluation Factors, "This is a Sole-Source Procurement." From a negotiation perspective, it makes sense to include an evaluation language in the sole source procurement as if the requirement was a competitive solicitation. Further, it also makes sense to wait until after completion of negotiations before submitting a sole source notice in FBO. There are exceptions to this (i.e. pressed for time or the requirement must specifically mention the Offeror's brand for technical reasons). Once the Offeror knows that they are the only firm you are soliciting to do the work, the agency's negotiating power drops significantly. For some requirements, particularly for services, while there is an obvious reason to do a sole source (either the Offeror has specialized experience or exclusive access to certain information), it would be possible that another business could try to do the work. For example, you have a computer system developed by one company that has years of experience modifying that system, and you want to create a follow-on change to the system. It would be possible (but not smart) to try to get another company without that experience to work on the system and make the programming changes. However, you do not want to negotiate in bad faith with the Offeror. You should not lie to the Offeror, but there are ways that you can avoid letting that sole source cat out of the bag. For example, if the Offeror asks if this is a sole source, you could respond with "we are considering all firms that have a capability to meet these requirements, including those we identified in our market research." I have even established a competitive range in a sole source procurement, and was successful in receiving a substantial price reduction as part of the Offeror's FPRs. The key was that the Offeror did not know it was a sole source until after they signed the offer. If you create even a little bit of doubt in the Offeror's mind about the requirement being a sole source, you have substantially improved the agency's negotiating position. Stating "this is a sole source procurement" or taking other actions to remove any doubt for whether you are issuing a sole source is akin to walking into a car dealership and saying that you will only buy a specific car from them. Three words: Piranha Feeding Frenzy.
  21. From a contracting standpoint, it is usually preferable to award directly to the manufacturer of the product if the resellers are simply adding a pass-through cost and not adding value. Let me explain why from a real-life scenario: * You award a brand-name only contract to ABC, a small business reseller of ACME. * XYZ, ACME’s only manufacturing subcontractor, just went out of business. * ACME tells ABC that it cannot deliver products on your contract by the time they promised. * ABC tells Government they cannot get the products you wanted. At this point, you are completely at the mercy of ACME. Since you do not have a contract with ACME, you cannot threaten them with contract termination. Their liability is limited because you have no privity of contract. You could try to get consideration from ABC, but their margins are razor-thin. Resellers normally agree to very one-side reseller contracts in favor of the manufacturer that limit liability. You could terminate ABC, but it is really not their fault, and you still would not have the products. Overall, you end up with a lose-lose situation with little leverage. If you had awarded the contract to ACME you are in a much better negotiating position. You could negotiate a settlement with ACME in lieu of other contractual remedies. ACME would know that you could terminate them for cause/default, and would be more willing to provide consideration. The only advantage I can see to competing amongst resellers is if the resellers are small business for a low-risk product or service.
  22. Vern, before you take your FAR and go home, I wanted to present an alternative solution. The past performance system is completely broken. Every Federal agency is required to invest thousands of hours each year into the antiquated CPARS boondoggle. I feel especially bad for those agencies where every action exceeds $150k, because they need to follow FAR Section 42.1501 for just about every acquisition. Back in January 21, 2011, OFPP issued a memorandum, “Improving Contractor Past Performance Assessments,” which to sum up its 9-pages (in my opinion) it asks for a book report if you give a Contractor anything other than satisfactory. Because of the amount of additional documentation, Government employees do not want to spend the time doing it. To make matters worse, the medium to which the information is entered is not just un-user friendly, but downright arduous to use and administer. The combination of the book report requirement and the poor reporting system implementation results in the opposite of what the OFPP memorandum intended. The objective of past performance reporting is to create a repository for the satisfaction of a Contractor’s customers with sufficient details to allow a Contracting Officer to make a valid source selection decision. To create a successful past performance system, you need: A) Participation from customers; B ) Sufficient information to be meaningful; C) User-friendly interface to view past performance from a macro to a micro-level; and D) Anonymity. Imagine for a second a past performance system from the future. What the Reporting Agency Sees: You would log into your Contractor Performance System (CPS) dashboard, and see a list of your agencies current and active contracts. Contract # Contractor Description Value Score Rating ABC-14-0001 SneakyCorp Bio Remediation $25m ** Not Acceptable ABC-14-0002 SallyCorp 1965 Mustangs $15m **** Acceptable ABC-14-0003 Whodunnit Widget Repair $30k *** Acceptable ABC-14-0004 Wascally Wabbits $45k - Needs Rating The contract number, contractor, description, value, and other pertinent information (PSC, period of performance, about the contract are all automatically populated for each agency from FPDS-NG automatically. Agencies would no longer need to manually enter in contract information manually like CPARS. In the above list, CPS would give the COR and the CO daily notifications to leave feedback for companies without an annual rating. If I were to click on my Wabbit contract with Wascally, I could optionally enter in comments, but would be required to at least rate my feedback for: • Customer Relations (Rating 1 to 5) • Timeliness (Ahead of Schedule, On-Time, 1-30 days late, 31 to 60 days late, 60+ days late) • Quality of Supplies/Services (Rating 1 to 5) • Cost Control/Quality of Invoices (Rating 1 to 5) • Key Personnel (Rating 1 to 5) At the very end, I must select if the Contractor either Acceptable or Not Acceptable. If Not Acceptable, I must enter in comments why the Contractor is not acceptable. Completion of the performance report takes a few seconds at a minimum, but could take much longer if the Government wanted to provide more details. NOTE: What is missing from this list is subcontractor reporting. We already have a subcontractor reporting system, ESRS, which provide subcontractor compliance information. What the Contractor Sees: When the Contractor views its performance it will see an aggregate of 1) the number of ratings; 2) the average rating for each category; and 3) the percentage of acceptable to not acceptable. For each of its contracts, it will be able to see whether they were acceptable or not acceptable, and if not acceptable, the comments entered by the agency. If the Contractor knows what the agency puts down, agencies will not be honest in their evaluation to avoid contention. Therefore, the majority of the data must be completely anonymous! What the Reviewing Agency Sees: When the reviewing agency logs in, they can type in details about their current contract competition, such as: • Contractor Name; • Product Service Code(s); • Dollar Value; • Keywords (i.e. Widgets); • Agency (can select all); • Date Range (all ranges or specific); and • Exact Match (Yes or No) When they hit the search button, it will provide an overall summary, for example: SneakyCorp 10 ratings (90-percent acceptable) Timeliness * Quality of Supplies/Services ** Cost Control/Quality of Invoices ** Key Personnel *** Average ** Then, it will list the contracts that reasonably fall within the range of the search parameters. For example (I am evaluating a contract for remediation services, valued at $20 million, for all agencies within the last three years): Contract # Description Value Score Rating ABC-14-0001 Bio Remediation $25m ** Not Acceptable YXZ-13-0022 Sock Remediation $15m * Acceptable ZXY-14-0043 Bio Remediation $30m *** Acceptable DEF-12-0064 Cat Remediation $23m * Acceptable I can click on any of these contracts and its takes me to the breakdown of the ratings on that contract. I can see all of the pertinent information from FPDS; the ratings for each of review areas, the comments entered by the agency, the agency point of contact, etc. I can now either call the agency for more details or use this information as part of my source selection decision. At least now, the past performance information is tailored to my acquisition, easy to access, and explained in a measurable manner. Where this system struggles is that it makes the assumption that all contractor performance is with the Federal Government. It could not handle commercial contracts because of the potential for fraud. Yet, CPARS handles only Government contracts.
  23. Prediction: In the future, all source selection decisions will be recommended by computer. The computer will 1) search the internet for bad things about the contractor; 2) see how many "buzz" words were in the contractor's technical approach; then 3) conduct a trade-off using an algorithm based on price and technical factors. It probably would pick better contractors than at least a few COs. The biggest problem with past performance is that it is too cumbersome to properly report. Soliciting agencies want a book report on how great/horrible the Offeror is at performing their requirement. Responding agencies have better things to do, like doing their FAITAS report, and prefer just to check some boxes without the Offeror yelling at them. CPARS wants check boxes and a book report at least once a year per contract. The regs require agencies to verify they are timely completing the CPARS, something that no one wants to do. For a good laugh about what this system creates, see B-408248.6 (http://www.wifcon.com/cgen/408248.pdf). Yes, it is anecdotal, but it supports my point. Past performance needs to become less personal and easier to complete. Take a look at how past performance works in the commercial marketplace. It is all anonymous, publicly available, and with very little censorship. Customers on eBay and Amazon can rate Vendors relatively anonymously and say what ever they want. If you have ever looked at CPARS, it is not user friendly and looks like something out of the 1980's. The guidance from OFPP is to create a lengthy narrative explaining the rationale, but then gives the contractor the right to rebut the information. In my opinion, agencies should be able to say things anonymously and with as little or much detail as they want, and on an easy to use tool. There should be more metrics that agencies can rate the contractor so that each contractor can have a dashboard for certain performance areas. Then compu... I mean Contracting Officers can use those metrics in their award decision. Until past performance becomes anonymous and easy to report, it will never be an accurate representation of contractor performance.
  24. But what if your contract terms and conditions already included the "contract quality requirements"? I would argue that only B in this list appears to fit within "contract quality requirements." The other items identify the procedures to which the agency will use to evaluate the Contractor's performance. B should always correlate to the Acceptable Quality Levels (AQLs) stipulated in the contract. If B is already in the contract, then B in the QASP is redundant. If it is redundant, then why incorporate it in the contract again? Further, I would not recommend including the QASP into the contract. My fear would be that including the QASP in the contract would bind the agency to a particular method of surveillance, and the only method to change that method would be through a modification. However, if the contract does not specify any AQLs, and only the QASP identifies those performance metrics, then the QASP should be part of the contract. Unfortunately, I have seen many instances of this. Also, the discrepancy between "Quality Assurance Plan" and QASP has led to conflicts of interests. There have been agencies that ask the Contractor to develop the Quality Assurance Plan, but treat that plan as the QASP and incorporate that document in the contract. In this case, the Contractor developed performance metrics which the agency would use to measure performance.
  25. I do not think that either Vern, Carl, or Joel's solutions are unreasonable. Neither solution is the obvious best one, either. It is subjective and depending on particular circumstances. For example, in Vern's solution, we demanded the old, broken widgets back which the OEM says it is unable to repair. Taking back old, broken and unrepairable (according to the OEM) widgets could potentially be costly to the agency either in storage, shipping, chemical remediation, disposal, etc. The old, broken widgets could have no residual value to the agency. I can just picture the scenario where the boss says, "nice job resolving that contract issue, I'll just leave these four old, dirty, and broken K9 commando pooper-scoopers at your desk." Then again, there is the old saying, "one person's trash is another's treasure." Regarding Don's explanation that an agency CO (backed by her legal wizards) claimed acceptance of the new widgets was outside of the scope, I think that there is a near consensus here that it would be a within the scope change to the contract.
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