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By
Vern Edwards on Tuesday, February
18, 2003 - 07:13 pm:
From Ask A Professor:
"Contract Specialist, Posted to Acquisition Logistics on
1/22/2003 by Ronald Cone
"The Scenario:
"We are looking into temporarily using a consultant to help with
contract administration duties at one of our sites.
"The Question:
"I have reviewed FAR 7.5 and Contract Administration seems to be
a inherently Government function. Is this correct? I have heard
that other Agencies have outsourced contract administration; is
this correct?
"The Answer:
"I agree that taken 'all together' contract administration
includes many tasks that are inherently governmental. However
some of the tasks are not, so without a review of the Statement
of Work I cannot tell you exactly what is, and is not,
inherently governmental.
The person whose opinion counts most (besides the Contracting
Officer) is your legal advisor. They will 'recommend' to the
contracting officer what is and isn’t inherently governmental in
the Statement of Work for that particular solicitation. It is
likely that is may need to be 'massaged' several times to
satisfy the attorney (and the law).
"Rationale: For instance preparing an objective for price
negotiations is not, but conducting the negotiation would likely
be inherently governmental. Doing the filing and routine letters
of notification are clearly not. Signing contract modifications
is, and so on.
"So it depends what duties you are going to contract out. So see
your attorney and get an idea of the criterion for determining
what is inherently governmental, so your first effort will be
good. Then prepare the solicitation and have it reviewed by the
legal office. If it is OK’d then the functions in the SOW are
not inherently governmental.
"A word of caution; you must also be vigilant AFTER contract
award that the government people working with the 'contractor'
watch out for problems with 'personal services' as well as
inadvertently assigning them 'inherently governmental' tasks."
Hmmm. Can we contract-out some professor positions?
By
Anonymous on Tuesday, February 18,
2003 - 07:55 pm:
It's a pretty good answer.
By
Anonymous on Tuesday, February 18,
2003 - 08:03 pm:
Depends on your job description.
By
AL on Wednesday, February 19, 2003
- 07:49 am:
I think it's a pretty good answer, too, though it
assumes (not necessarily correctly) that the servicing counsel
will have a good handle on what is "inherently governmental." I
think there is agreement on some things that are, and some
things that aren't, and a pretty good swath of things that are
in a gray area without much agreement.
I also think the bigger problem is, as mentioned near the end of
the Professor's answer, whether this is really going to be a
personal services contract, treating the "contractor" as an
employee. The question suggests to me that the agency is
short-handed, and wants another "employee" temporarily, but
can't justify a new billet (or filling an empty billet) within
the organization, so they figure they'll contract out the work.
That invites problems with the rules on personal services
contracts.
By
Vern Edwards on Wednesday, February
19, 2003 - 09:33 am:
Anonymous and AL:
The professor thinks that developing the government's price
negotiation objective is a commercial activity, i.e., it is not
inherently governmental. Do you agree with that?
By
Anonymous on Wednesday, February
19, 2003 - 09:42 am:
Participating in the preparation of the
pre-negotiation objective is not inherently a governmental
activity. However, the negotiator ought to direct and be
responsible for the activity.
By
Vern Edwards on Wednesday, February
19, 2003 - 09:53 am:
Anonymous:
Forgive me, but "participating" is vague.
The professor said: "For instance preparing an objective for
price negotiations is not [inherently governmental], but
conducting the negotiation would likely be inherently
governmental."
Bite the bullet. Do you agree with that statement or not?
(Are you the Anonymous of Feb. 18 at 7:55p.m.?)
By
cherokee21 on Wednesday, February
19, 2003 - 10:42 am:
Vern:
I believe "preparing the objective for price negotiation" has a
strong correlation to being involved with public monies which I
believe is a no-no for consultants or contracting out.
We did have a situation whereby a consultant for a government
entity did a review of a pricing proposal we developed and of
course he reported his findings to the CO, however, it was up to
the CO to prepare his objective and it was apparent he did
evidenced by our subsequent negotiations.
By
Anonymous on Wednesday, February
19, 2003 - 10:42 am:
Yes, I am.
No, the statement is not totally accurate if it means that
consultants independently prepare the overall PNO's, then hand
it off to the government's negotiator. If it meant preparing an
objective within the overall pre-negotiation position, that is
probably reasonable. It depends upon the particular situation.
By the way, I said the answer was "pretty good". The gist of the
answer was fine. If the "Professor" had another page or two he
or she could have more precisely described the process. I' not
going to quibble with the words "preparing an objective
for price negotiations" in the context used in the answer. It
was a general answer.
By
formerfed on Wednesday, February
19, 2003 - 10:57 am:
Pardon me for jumping in now but I finished shoveling
snow and got to this point. I think preparing a negotiation
objective is an inherent government function. A contractor can
review, analyze, and present recommendations to the CO, but it
stops at that. Only the CO can establish the objective since
that involves the exercise of governmental discretion.
By
Anon2U on Wednesday, February 19,
2003 - 11:11 am:
The direction the government is going is to contract
out as much as possible. I have always heard that as long as the
person signing the documents is a government employee (the CO),
then it can be contracted. As I have stated before that if taken
to extremes, the only personnel that will be government
employees are the COs, the finance officers, and the political
appointees. And maybe a few others directly responsible for
budget and finance.
Is this good for the country and the taxpayers? I don't think so
but time will tell.
By
Vern Edwards on Wednesday, February
19, 2003 - 12:54 pm:
In order to discuss this intelligently, I think we
have to figure out what the professor meant by "preparing the
objective for price negotiations." He made no distinction
between competitive and sole source acquisitions (see FAR §
15.002), so I think we should assume that he was referring to
both.
According to FAR Part 15, preparing the objective for price
negotiation includes proposal analysis, which might
include proposal evaluation in accordance with FAR §
15.305; price analysis or cost analysis and
perhaps cost realism analysis or price realism
analysis in accordance with FAR § 15.404-1(b), (c) and (d);
technical analysis in accordance with FAR § 15.404-1(e); profit
analysis in accordance with FAR § 15.404-4; and the development
of prenegotiation objectives, in accordance with FAR § 15.406-1.
Based on my reading of OMB Circular A-76, paragraph 6.e and
Attachment A, and the FAR subsections identified in the
paragraph above, I believe that that "preparing the objective
for price negotiation" is an inherently governmental function --
a function "so intimately related to the public interest as to
mandate performance by Government employees."
By
formerfed on Wednesday, February
19, 2003 - 01:52 pm:
Vern,
I agree with your conclusion but used different logic. One of
more contractors can perform the analysis functions -
accountant, engineer, computer specialist, etc. They come up
with conclusions in the form of recommendations. But it's up to
a government employee, the contracting officer, to use this
information to establish and define the prenegotiation
objective. The bottom line on the objective is, barring any
additional information produced, when negotiations produce an
offer at this price/cost, it is acceptable to to the government.
By
Anonymous on Thursday, February 20,
2003 - 12:48 am:
I agree your opening logic, Formerfed.
Some people here seem to think that only government employees
are "qualified" to perform proposal analysis. That's a crock.
There are many people with experience or analysis and
negotiation skills comparable to a typical G.E. We regularly
work with old hand retirees with more experience, skill,
productivity and conscience than most of their younger G.E.
peers. We use them all the time to help prepare for and to
participate in negotiations. And yes, there are professional
analysts and negotiators out there with at least the same skills
and interests as most G.E.'s. We use them, too.
Some here argue that a non-government employee can't participate
in negotiations or preparation of the objective because the FAR
uses the term "contracting officer" to describe the employee
responsible to perform such tasks. Then, it must follow that
nobody but a C.O. can physically perform those tasks. The term
"contracting officer" is used in almost all the FAR
prescriptions related to the negotiation process, not just the
ones that refer to preparation of objectives or to negotiations.
Therefore, it must also follow, using the same logic as above,
that the contracting officer must personally perform all
proposal technical cost and price analysis, personally prepare
the negotiation objectives, personally negotiate all contracts
and modifications, personally prepare the record of negotiations
and other documentation and personally prepare the contract
documents.
Must be nice not to have anything else to do or to have so few
actions that the C.O. can personally do it all - alone. Probably
no need for anyone but contracting officers in your
organization, right? We'll get right on with the task of firing
all our analysts and negotiators.
Using such logic, as a retiree, Vern Edwards isn't qualified or
authorized to participate in analysis, preparation of
objectives, negotiations or documentation for the Government
team.
By
Vern Edwards on Thursday, February
20, 2003 - 10:56 am:
Anonymous:
The issue is not a matter of who is qualified. It is a matter of
policy regarding inherently governmental functions and who gets
to perform them.
Much proposal analysis entails the interpretation and
application of government policies. It includes interpreting and
making decisions about the application of such policies as the
contract cost principles, the cost accounting standards, and the
profit policies. Moreover, what could be more intimately related
to the public interest than deciding what price objective the
government should pursue during negotiations?
You said: "Some here argue that a non-government employee can't
participate in negotiations or preparation of the objective
because the FAR uses the term 'contracting officer' to describe
the employee responsible to perform such tasks." Who said that?
Please identify the culprit. Specify the date and time of the
post in which he or she said it.
As I said previously, your use of "participate" is vague. It is
fine to hire a contractor to prepare cost or price analysis
spreadsheets and to do arithmetic, to obtain market information
for use during cost or price analysis, and to make simple
comparisons and report findings. If that's what you mean by
"participate," then fine.
But it is not fine to hire a contractor to decide whether
or not a contractor's proposal is consistent with the provisions
of some FAR clause, to decide whether or not this or that cost
is allowable under FAR § 31.205, to decide whether or not this
or that cost allocation is consistent with the cost accounting
standards, or to decide the level of performance risk for profit
analysis purposes, and then to incorpate those decisions into a
negotiation objective. Those decisions "involve the exercise of
discretion in applying Government authority or the use of value
judgment in making decisions for the government." Such decisions
are inherently governmental. (See OMB Circular A-76, paragraph
6.e.) And those are precisely the kinds of decisions that must
be made in order to come up with a price negotiation objective.
Now, I can sense from your reference to me in your last post
that you are getting indignant about my stance on this. Well,
get indignant if you want to; but until your thinking and
writing reflects more precision in the expression of your ideas
and deeper reflection upon official statements of policy and
regulations, I don't care.
And by the way, I don't "participate" in proposal evaluation,
the preparation of negotiation objectives, negotiations, or
documentation by Government teams. When asked to do so I limit
my involvement to giving general advice about policies,
regulations, case law, and process. I refuse to even look at
offerors' proposals. If you "participate" in proposal analysis,
then I understand your indignity, even though I'm not
sympathetic.
By
Anon2U on Thursday, February 20,
2003 - 12:34 pm:
Vern,
At many agencies contractors are sitting on technical evaluation
boards. Why? Because no one in the program office has the
experience to make the decisions that a government employee
should be making. They hire an outside consultant to provide
that expertise. Lately our technical panels have been a
consultant, the division chief of the applicable program office,
and one contract specialist who works as liasion for the
executive of the program office. I saw one board that was 3
contractors and the division chief. Of coarse with that
composition, the consultant carries the most clout. Who would
want to disagree with the expert.
We notify the offerors that another contractor will be
evaluating in case there is proprietary information. Is this
good? No, but having a subject matter expert evaluate the
proposals is a better deal for the taxpayer and government than
someone who has never dealt with the technology before.
Unfortunately as more and more personnel are contracted out,
there will be no government expertise.
By
Tricia on Thursday, February 20,
2003 - 12:56 pm:
I've worked on source selections before where
contractors were part of the evaluation team, but their
involvement was limited to the technical team, not cost. To be
involved in the technical evaluation, they had to sign
non-disclosure statements like the rest of the team. The RFP
also had language telling offerors that contractor personnel
would be part of the evaluation team and that they had to work
with the companies those individuals worked for to put in place
a legal document that would reserve both parties' rights.
In response to Anonymous' 12:48 am post: I'm not sure what your
experience is, but it's obvious you're not a contract specialist
or contracting officer. If you were, you might respect the role
we play in the acquisition process and understand that we know
we don't work in a vacuum and it takes a complete team to
develop objectives and negotiate. But at the end of the day, the
contracting officer is responsible and liable for the position
that team ends up in, so the contracting officer should take the
lead role in this effort. Otherwise you'd get contracting
officers signing up to prices that the engineers might consider
fair and reasonable just to get the work started and contracting
officers left holding the bag. But no responsible CO would want
to let everybody else go and do all of the work on their own. By
the way, you don't work for the Corps, do you?
By
Vern Edwards on Thursday, February
20, 2003 - 01:02 pm:
Anon2U:
I see no problem with having a consultant on an evaluation board
to offer government evaluators expert opinions and advice.
That's a very old practice, although it is now somewhat
restricted by FAR §§ 37.203(c) and 37.204. However, in my
opinion, the consultant should not be making decisions about the
application of government policies or regulations.
By
previous anonymous on Friday,
February 21, 2003 - 01:49 am:
Here are the references, implying that only a
contracting officer can establish the government's negotiation
objectives.
By formerfed on Wednesday, February 19, 2003 - 10:57 am:
Only the CO can establish the objective since that involves
the exercise of governmental discretion.
By Anon2U on Wednesday, February 19, 2003 - 11:11 am:
"I have always heard that as long as the person signing the
documents is a government employee (the CO), then it can be
contracted. As I have stated before that if taken to extremes,
the only personnel that will be government employees are the
COs, the finance officers, and the political appointees. "
By formerfed on Wednesday, February 19, 2003 - 01:52 pm:
"... But it's up to a government employee, the contracting
officer, to use this information to establish and define the
prenegotiation objective."
-------------------------------
A government employee should "establish" the negotiation
objectives. The contracting officer doesn't have to be the
government employee who personally prepares or "establishes" the
negotiation objectives or negotiates the action, unless the
contracting officer decides to personally negotiate.
The contracting officer can delegate negotiations to an
authorized representative. In that case, the negotiating team
should prepare and sign the objectives. The CO/ACO would usually
approve the PNO, after the negotiator signs. Such negotiations
are always subject to the final approval and acceptance of the
CO (or ACO, when applicable).
It is important to note that the negotiation objectives document
the negotiator's own plan for negotiating, just as the
record of negotiations document the actual negotiations.
The CO shouldn't prepare the objectives, unless personally
negotiating the action. It's not very effective for a negotiator
to deliver someone else's script.
Yes, I am a former contracting officer (and fully qualified and
certified level III DAWIA critical acquisition corps contracting
member). I don't profess that only "contracting officers" may
prepare or establish negotiation objectives - perhaps we're
splitting hairs with the semantics, here.
By
formerfed on Friday, February 21,
2003 - 07:30 am:
Previous anonymous,
You are right in that the person negotiating should prepare and
sign the prenegotiation objectives. The percent of experienced
1102's with CO warrants is so high now, I just assume the
negotiator is a CO.
By
Kennedy How on Friday, February 21,
2003 - 12:18 pm:
I guess my feeling on this is whether or not your
"Contractor" or "Consultant" group is making a de-facto decision
for the Government. Sure, the KO is actually going to sign off
on it, but since he may not be the "expert", what makes him
qualified to reject all of the work done by the group?
If it sounds like I'm saying that he's a rubber stamp, well,
maybe that's what it is. When I was putting together the PNM and
other data, we all had input into the document. Once it was
done, I passed it on to the KO to review and sign. If he had no
problems with it, and the document was clear, concise, logical,
etc., he signed.
In the case of the contractor/consultant, if the document is
clear, concise, logical, etc., what would cause the KO to not
sign off? And if it was my group that wrote the exact same
document, would there even be a question?
Kennedy
By
Charlie Dan on Friday, February 21,
2003 - 02:38 pm:
In response to Kennedy's 2/21 post, the advisory group
is not making a de-facto decision for the Govt. The contracting
officer has a responsibility to consider any advice and make up
his/her own mind whether to accept that advice.
I don't think it matters whether advisors are contractors or
feds. I don't think it matters if the contractor advisors are
the preeminent experts in the relevant fields. Their role must
be strictly advisory in nature. Contracting officers are
expected -- even required -- to utilize outside expertise in
making their decisions.
FAR 1.602-2 says, "In order to perform these responsibilities,
contracting officers should be allowed wide latitude to exercise
business judgment. Contracting officers shall -- ... Request and
consider the advice of specialists in audit, law, engineering,
transportation, and other fields, as appropriate."
Specialists can be contractors, as well as feds, providing
appropriate precautions are taken to avoid conflicts of interest
and release of sensitive information. Obviously, any time the
Govt uses non-feds to evaluate proposal information, the Govt
should notify offerors and give them the opportunity to voice an
objection.
Bottom line: the contracting officer is responsible to make the
ultimate decision, whether that is to establish a prenegotiation
objective, make a source selection (when he/she is the source
selection authority), sign a contract or mod, whatever.
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