Jump to content

Worst Guidance Ever


Voyager

Recommended Posts

I was reading my agency's policy guide to COs.  It is our version of the DFARS PGI.  It recently got a new section to remind us we have to follow the Limitations on Subcontracting clause in our contracts.  This little operation was misguided at best or designed to keep a billet occupied at worst - and it was implemented pathetically.  Look at this drivel:

Quote

The following actions shall be taken when limitations to subcontracting exist:

• The CO shall include the clause at FAR 52.219-14 in all contract awards to ensure that all contracts comply with the performance requirements (i.e. technical, cost, schedule/timeliness, management, small business subcontracting, including reduced or untimely payments to small business contractors when 19.702 (a) requires a subcontracting plan (as applicable) and other (as applicable) (e.g., trafficking violations, tax delinquency, failure to report in accordance with contract terms and conditions, defective cost or pricing data, terminations, suspension and debarments, and failure to comply with limitations on subcontracting).

• COs and other contracting personnel who monitor contract performance shall take training to ensure compliance with subcontracting requirements is adequately being met.

• COs shall retain responsibility for compliance with the limitations on subcontracting requirement and all applicable provisions of FAR 52.219-14 and any of the Department of [removed] regulations. The CO, Contracting Officer Representatives, Project/Program Managers or other delegated official appointed by the CO shall perform reviews of contracts when adequate documentation related to subcontracting amounts have not been maintained and make a determination if the small business prime contractors did not comply with subcontracting limitations, pursue collection of penalties for any contractors that exceeded established limitations, and report any instances of non-compliance in contractor performance information.

Not at all very important, but an example of some bloated pus that needs a light shined on it.  Mismanagement is going to lead trainees that read this to think the whole 1,000-page policy guide is similar nonsense.

Link to comment
Share on other sites

2 hours ago, Voyager said:

I was reading my agency's policy guide to COs.  It is our version of the DFARS PGI.  It recently got a new section to remind us we have to follow the Limitations on Subcontracting clause in our contracts.  This little operation was misguided at best, designed to keep a billet occupied at worst - and it was implemented pathetically.  Look at this drivel:

Not at all very important, but an example of some bloated puss that needs a light shined on it.  Mismanagement is going to lead trainees that read this to think the whole 1,000-page policy guide is similar nonsense.

I agree that it is ridiculous and erroneous policy .

Link to comment
Share on other sites

4 hours ago, Voyager said:

The CO shall include the clause at FAR 52.219-14 in all contract awards to ensure that all contracts comply with the performance requirements (i.e. technical, cost, schedule/timeliness, management, small business subcontracting, including reduced or untimely payments to small business contractors when 19.702 (a) requires a subcontracting plan (as applicable) and other (as applicable) (e.g., trafficking violations, tax delinquency, failure to report in accordance with contract terms and conditions, defective cost or pricing data, terminations, suspension and debarments, and failure to comply with limitations on subcontracting).

The clause goes in ALL contracts(?????)…NO

“19.507(e):

The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in solicitations-and contracts— 

(1)For supplies, services, and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed the simplified acquisition threshold, and in any solicitations and contracts that are set aside or awarded on a sole-source basis in accordance with subparts  19.8, 19.13,  19.14, or  19.15, regardless of dollar value. This includes multiple-award contracts when orders may be set aside for small business concerns, as described in  8.405-5and  16.505(b)(2)(i)(F), and when orders may be issued directly to a small business concern as described in 19.504(c)(1)(ii). For contracts that are set aside, the contracting officer shall indicate in paragraph (f) of the clause whether compliance with the limitations on subcontracting is required at the contract or order level;

(2)  Using the HUBZone price evaluation preference. However, if the prospective contractor waived the use of the price evaluation preference, or is an other than small business, do not insert the clause in the resultant contract.”

• The clause isn’t applicable to large business primes or where there is no set-aside, partial set-aside or sole source for various applicable classes of small businesses.

• The clause doesn’t address ANY of the performance requirements listed above (including “failure to comply with Limitations on Subcontracting”). The clause cannot “ensure that all contracts comply with those specifically listed (“I.e.”) performance requirements.

• Subcontracting Plans aren’t applicable to such small business set-asides, hub zones and sole source small business awards. Subcontracting plans and the Limitations on Subcontracting -14 clause are mutually exclusive.

1 hour ago, C Culham said:

So in other words just not put the clause in awarded contracts is that what you are saying?

That’s not what I’m saying.

The policy is poorly written, erroneous and is apparent that the policy writer doesn’t know what they are talking about.  

Link to comment
Share on other sites

Voyager, does your agency assess and collect “penalties” from small business prime contractors who exceed “established” subcontracting limitations?

Is the policy writer confusing “penalties” (liquidated damages) associated with subcontracting plans with the limitations on subcontracting clause? They are mutually exclusive…

Edited by joel hoffman
Added second paragraph.
Link to comment
Share on other sites

Joel, the policy says there is a fine of $500,000.  To find that, you have to see the paragraph immediately preceding the bullets.  Here that is:

Quote

2.7.3 Limitations on Subcontracting. The Federal Acquisition Regulation (FAR) states that contracting officers may set aside solicitations to allow only small businesses to compete. Small business prime contractors are subject to limitations on subcontracting. The limitations require that small business prime contractors must not pay more than between 50 and 85 percent of the amount paid by the Government to subcontractors that do not have the same small business program status, based on whether the contract is for services (except construction), supplies, general construction, or special trade. Costs of materials are excluded and not considered subcontracted amounts for supply, general construction, and construction by special trade. Any small business prime contractors that violate the subcontracting limitations are subject to a fine of $500,000, or the dollar amount spent by the prime on subcontractors in excess of permitted levels, whichever is greater.

The following actions shall be taken when limitations to subcontracting exist:…

This is apparently referring to 13 CFR 125.6(h).

Quote

(h) Penalties. Whoever violates the requirements set forth in paragraph (a) of this section shall be subject to the penalties prescribed in 15 U.S.C. 645(d), except that the fine shall be treated as the greater of $500,000 or the dollar amount spent, in excess of permitted levels, by the entity on subcontractors. A party's failure to comply with the spirit and intent of a subcontract with a similarly situated entity may be considered a basis for debarment on the grounds, including but not limited to, that the parties have violated the terms of a Government contract or subcontract pursuant to FAR 9.406–2(b)(1)(i) (48 CFR 9.406–2(b)(1)(i)).

Link to comment
Share on other sites

Thanks for the clarification, Voyager. Apparently this paragraph is part of the paragraph referring to LOS on competitive set-asides for small businesses. However, technically, “small business set-asides” constitute only one type of the contract acquisition types or contract actions that are subject to the LOS, of course. Various  sub-classes of disadvantaged small business and HubZone small businesses also have set-asides,  or sole source awards or price preferences, etc.

The policy writer conflates the LOS clause with Subcontracting Plan contractual requirements, which aren’t applicable to these contracts,  and the other requirements or actions discussed in the initial post for these type of acquisitions. 

I’m glad to see that the SBA, at least, has put some teeth into enforcement of the LOS clause. The penalty in 13 CFR 125.6(h) is an SBA authority. So are some of the data collection techniques which may be necessary to determine compliance, at least on non-construction contracts. The LOS doesn’t address these.

I can agree with an agency “pursu[ing] collection of penalties” but,  unless covered elsewhere in a contract, the agency can’t determine or collect a penalty. I think that any penalty would be deposited into the Treasury.

Voyager, if you meant in your initial post that agency oversight and active (not passive) contract administration of the LOS and the other contract performance requirements are not important, I disagree.

I do agree that the policy guidance is poorly written. It may or may not be the “worst guidance ever”. 

 

 

Edited by joel hoffman
Link to comment
Share on other sites

P.S., I like the SBA coverage of the LOS a lot. But I don’t see FAR reference to it or FAR implementation of the specific detailed guidance (e.g.,examples) and procedures in Part 19 or referenced in actual contract language. I didn’t see where the SBA procedures , data requirements or penalties under LOS are in contract language between the contractor and SBA or the Agency.

Such details are extensively covered in contract clauses for subcontracting programs and subcontracting plans.

Link to comment
Share on other sites

Voyager and Bob Antonio,

Wouldn’t this thread be more appropriate under the Small Business Socioeconomic Programs topic area than under the Contracting Workforce topic area? 

Link to comment
Share on other sites

2 hours ago, joel hoffman said:

Voyager and Bob Antonio,

Wouldn’t this thread be more appropriate under the Small Business Socioeconomic Programs topic area than under the Contracting Workforce topic area? 

Maybe I was trying to be too poignant, or maybe you did not read my OP.

On 7/25/2023 at 11:05 AM, Voyager said:

Mismanagement is going to lead trainees that read this to think the whole 1,000-page policy guide is similar nonsense.

My OP was concerned about the contracting workforce of the future.  Talk all you want about mentorship, but especially in contracting, agents do need to learn from written policy exactly what the regulations leave to agency discretion.  If an agent cannot actually read the policy, guidance, and instructions written down by policy writers because the writers are incompetently phrasing things, using parentheses that never close, or just listing jargon terms that do not even apply to the policy subject, then it creates chaos where order is demanded.  The policy here made it even harder to understand the regulation, so I highlighted it in the Contracting Workforce forum as an example to dissuade all policy writers that browse here, of which there are many, from creating more chaos.  Your job is to bring order through your understanding - in English, please.

Link to comment
Share on other sites

47 minutes ago, Voyager said:

My OP was concerned about the contracting workforce of the future.  Talk all you want about mentorship, but especially in contracting, agents do need to learn from written policy exactly what the regulations leave to agency discretion.  If an agent cannot actually read the policy, guidance, and instructions written down by policy writers because the writers are incompetently phrasing things, using parentheses that never close, or just listing jargon terms that do not even apply to the policy subject, then it creates chaos where order is demanded.  The policy here made it even harder to understand the regulation, so I highlighted it in the Contracting Workforce forum as an example to dissuade all policy writers that browse here, of which there are many, from creating more chaos.  Your job is to bring order through your understanding - in English, please.

Totally agree.  I’ve scanned through this document several times in the past and the bulk is a waste of time and energy.  Much repeats what’s in the FAR and other parts go into detail about what should be obvious from the FAR.  The contracting workforce of the future needs to be more flexible and creative in applying statues, rules and regulations and not be as rigid and risk adverse on their predecessors.  I constantly hear from program managers and senior agency officials say their contracting offices are great at saying why something shouldn’t be done but not offer suggestions as to better ways to meet their needs.  What’s needed, in my opinion, is more training on the basic FAR principles and much less prescriptive implementation policies.  
 

I know your agency has some unique acquisition situations that require more guidance as do most other agencies.   But not like this

Link to comment
Share on other sites

 

3 hours ago, Voyager said:

Talk all you want about mentorship, but especially in contracting, agents do need to learn from written policy exactly what the regulations leave to agency discretion.  If an agent cannot actually read the policy, guidance, and instructions written down by policy writers because the writers are incompetently phrasing things, using parentheses that never close, or just listing jargon terms that do not even apply to the policy subject, then it creates chaos where order is demanded. 

The broken windows theory, applied to contracting.  A glaring and uncorrected error in policy tells the reader that policy is not to be taken literally or seriously. 

 

 

Link to comment
Share on other sites

46 minutes ago, General.Zhukov said:

 

The broken windows theory, applied to contracting.  A glaring and uncorrected error in policy tells the reader that policy is not to be taken literally or seriously. 

 

 

That’s why so much policy is ignored or people are unaware it even exists.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

×
×
  • Create New...