Discussion

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Overwhelmed by the number of solicitations on FBO.gov? (That’s where the Federal Government posts solicitations and provides information to industry) Kevin and Paul discuss the process of qualifying opportunities.  Learn how to make sure you’re spending your time bidding on the right solicitations for you.  And Government folks, learn why it is important to provide enough information to allow Industry to properly qualify opportunities.  (hint: less wasted effort for all) 

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.  

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul continue the conversation from Episode 175 (Technical Leveling) to answer the question “Can the Government discuss price with offerors during discussions?”.  Learn how FAR 15.306(e) “Limits on Exchanges” gives wide latitude to the Government to include context on an offeror’s price without crossing the line into Technical Leveling and why it can play an important role in source selection outcomes. 

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Writing a Request for Proposals (RFP) without understanding industry’s capabilities and the state of the market is like writing a novel for a stranger.  The same goes for writing and submitting a proposal to a customer you don’t understand. (What does that even mean? Listen and Learn!)

In this encore presentation Kevin and Paul take a different route through a couple foundational Contracting Officer Podcast topics: communication and targeting.  Learn how communication between Government and Industry during the acquisition directly impacts the quality of RFPs and proposals and why targeting is important to each side.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin welcomes special guest Stacey Coolican (a former Government Contracting Officer with over 20 years experience) to discuss the reasons why Government acquisition teams may use a formal Request for Information (RFI), what they expect to learn from RFI responses, and things that Industry should consider when contemplating a response to an RFI.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul discuss a special kind of small business: the HUBZone small business concern.   A HUBZone is a historically underutilized business zone designated by the Small Business Administration.  If your small business is located in a HUBZone, you may qualify as a certified HUBZone Small Business Concern.

Learn how this designation is a powerful competitive advantage and why Government Contracting Officers are incentivized to award contracts to HUBZone Small Business Concerns.  (also an amazing way to leverage the FAR to streamline the acquisition process!)    

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.  

GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul return to a favorite podcast topic: Debriefings.  So much untapped opportunity for communication lies in debriefings.  Learn why many debriefings put one side on offense or defense and how a third option (neither offensive or defensive) can help.    

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts

GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

In the second of a five part series, Kevin welcomes special guest Vicki Strycharske to discuss the first of four steps that Industry should take when an RFP is released by the Government – Reading the RFP.  Episode 165 (Proposals – the First Four Steps) provided the overview.  We’ll cover the remaining steps in detail in future episodes.      

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts. 
GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

by Shelley Hall

In Protection Strategies, Inc., B-414573.3 (Nov 9, 2017), the GAO held that the protester was entitled to be reimbursed a portion of its protest costs because the agency unduly delayed taking corrective action in response to a sustained protest.

Initially the protester challenged the agency’s technical evaluation and the best value tradeoff, stating that it did not justify paying a price premium for the awardee to perform the requirement.

In any kind of tradeoff, there has to be clear documentation as to why the agency chose a higher priced offer over another.  There can be many reasons, such as warranty terms, extended life cycles, more efficiency in the proposed processes, etc.  Of course, the RFP has to clearly state how and what is being evaluated to make the best value decision.

The protester filed a supplemental protest stating that the best value determination unreasonably focused on the adjectival ratings and the agency improperly evaluated its past performance and the awardee’s proposal under a technical factor. Additionally, the protester challenged the agency’s failure to conduct a price realism evaluation with respect to the awardee’s proposed level of effort.

The agency took corrective action after filing an agency supplemental report and after the GAO case attorney held a conference call to discuss each party’s litigation risk.

The protester then requested that GAO recommend that the agency reimburse it for its protest costs. GAO held the protester was entitled to recover the costs associated with the challenge to the best value determination. GAO found this protest ground was clearly meritorious because the source selection authority did not discuss any of the advantages that the protester’s proposal provided, despite the fact that it was lower priced and acceptable.

On the other hand, GAO held that the other protest grounds were not clearly meritorious, in part, because the record required further development.

So what can be learned from this?  Well, first of all, if you feel your offer has been unfairly or incorrectly evaluated, by all means, file a protest.  Then if the agency does not take timely corrective action on sustained portions of the protest, you may be able to recover some of your protest costs.

For instant access to over 200 articles like this one (as well as the two new ones we add every week), join the Skyway Community.
Visit http://skywaymember.com for details.

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul discuss the fear that the term “technical leveling” often stirs up in Contracting Officers.  Learn how FAR.306(e) “Limits on Exchanges” opens up the process of discussions rather than limits it.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.
GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin welcomes Skyway team members Shelley Hall (a former Contracting Officer) and Christi Gilbert (an Industry contracts manager) for a roundtable discussion about CPARS.

Learn why CPARS have increased in importance over the last few years and what you should do if you receive an unfavorable CPARS.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

GET HELP FROM OUR TEAM OF FORMER CONTRACING OFFICERS AT http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin welcomes Skyway team members (and former Contracting Officers) Shelley Hall and Steve Lucianetti for a roundtable discussion about what types of issues are worth fighting for and which issues are generally a waste of time.  Learn how the same issue can have merit, or not, based on when it is surfaced during the acquisition and execution time zones.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

To Get Help From Our Team, Visit http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul explain one of the reasons why the Government has a difficult time buying new technologies.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

To Get Help From Our Team, Visit http://askskyway.com

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul discuss the concept of Arm’s Length Transactions and how it applies to the Government market. Learn why an arrangement between two parties that is acceptable in the commercial world may be considered a problem in the Government market.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

by Steve Lucianetti

According to the Defense Security Cooperation Agency (DSCA), in 2017 the United States had oversight to over $43B in Foreign Military Sales (FMS).  The number of countries that benefit from these sales are over 200.  Everyone of our NATO partners buy from the US as well as Japan, Australia and many other South American, Asian and Middle Eastern countries.  This policy basically has two objectives – to promote the mutual defense cooperation between the US and these countries and to reduce cost to the US of developing and obtaining new systems.  Currently the F-35 Joint strike Fighter is the biggest FMS program.

So where can you play a role in this acquisition area?  When a country gets approval to obtain a defense article, the country has many other areas to spend money in support of that equipment.  Training, facilities, logistics and engineering support are the main areas.  All of this is usually included in the Letter of Acceptance (LOA) that is executed by the US and the foreign nation.  So there are many areas where the DoD activity that is procuring the system for the FMS country contract for support.

This is never a fast process as the sale of weapons involves at least two bureaucracies getting approval to buy something. In building an LOA all the items and support are identified.  The USG gets Rough Order of Magnitudes (ROMs) for pricing and after adding in the cost for USG support, it is presented to the country as an LOA.  There is much discussion as once that LOA is delivered it can’t be modified quickly.  Once the LOA is in country, it then has to go through that country’s review/budget process.  I have seen that take over a year in some cases.  The process can take a long time for even signed work because funds have to be moved from that country to the USG.

Countries can choose the FMS or Direct Commercial Sales(DCS) option.  DCS is a process where the country contracts directly with a US Firm that has obtained all the proper approvals under the various laws and regulation that govern the sales of defense products to foreign countries.  The USG has no role in negotiating or administrating that contract.  Most countries chose the FMS option because the FAR/DFARs are fully applied.  In fact, the country can’t even just say I want that airplane and a contract get executed.  There either has to be a J&A or a formal letter from the country specifically directing the USG to buy that particular product from that company. That letter is a de-facto J&A and has to be reviewed and approved like a J&A.  Countries have found that using the USG contracting services usually means they save money, because the pricing for that product is subject to the same reviews as if it were for the USG.

I was the Contracting officer for two weapons that were being or had been purchased through FMS.  One had 30+ countries that had purchased the weapon.  It was such a popular weapon that production had been on going since the 70’s.  In support of that system we had to contract for support personnel in the program office that these countries wanted to provide support to their military.  Also spares and training had to be obtained.  There were integration issues as this weapon was placed on different platforms that would use the weapon.  One of the last contracts I did was an FMS case that was valued over $200M for the initial procurement of weapons along with the cost of integration.  In the future more weapons would be added and the program will be in existence for the next 20 years for that country.

The FMS contract can have many unique issues. It is subject to the political winds of the world.  For example, in the 70’s the US sold many different systems to Iran.  When the government changed, the US withdrew all support.  So those who had contracts being funded by that government probably had to deal with a termination for government convenience.

In recent years our allies in some parts of the world were viewed by the last and current US administration as being not aligned with our views (my words).  One of those countries had one of the systems I supported and at various times we were instructed to suspend support under any existing contracts.  In the case of service contracts, it caused a major headache as the companies and the USG had to figure out what to do with people until the work could be restarted.  Should there be a T for C? Or could the company continue some work that could be delivered at a later date? It became a complex dance over who could be shifted to other work versus what had to be paid for under the contract.

It was always interesting to deal with countries on FMS.  Our program office had people assigned as “FMS Case Managers” which managed the LOAs for a country. I usually dealt with the case managers but there were times when the CO was in the room with the foreign nationals discussing issues.  One always had to be aware of the cultural differences when dealing with these efforts.  It was educational but not always fun…lol.

For instant access to over 200 articles like this one (as well as the two new ones we add every week), join the Skyway Community.
Visit http://skywaymember.com for details.

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin discusses equitable adjustments with special guest Gene Lavastida.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

by Shelley Hall

In Bluewater Management Group, LLC, B-414785, Bluewater protested the Navy’s award of lodging and transportation services to DMC Management Services, LLC, stating that the award was improper because DMC’s GSA Schedule contract did not include transportation services.

The Navy issued an RFQ to small business holders of GSA Schedule 48 for lodging and transportation services. The RFQ was issued pursuant to FAR Subpart 8.4, Federal Supply Schedules (FSS), where GSA manages the FSS program and federal agencies can use a less complex process to buy commercial supplies and services.

In the RFQ’s scope of work, offerors were to provide an average of 120 extended-stay hotel rooms within 25 miles of the naval base and daily round trip transportation to the naval base. The RFQ broke out the lodging and transportation services as separate CLINs and told offerors that all products and services were to be included in their current GSA Schedule contract.

DMC holds a Schedule 48 contract, but it only lists pricing for lodging and housekeeping services. It does not include pricing for transportation.  The Navy awarded DMC the task order for an evaluated price of $38,009,781.

Bluewater protested, stating the award was improper because the transportation services from DMC were outside the scope of its Schedule 48 contract. The Navy responded that the transportation services were ancillary to complete the task order lodging requirement.

In rejecting the Navy’s argument, GAO wrote, “[t]he Navy provides no legal authority for this assertion, nor does it provide any evidence that DMC’s schedule contract listed these services or otherwise explain why the transportation services are not required to be listed and priced on the FSS contractor’s schedule.” GAO found that the Navy’s argument that the transportation services were “other direct costs,” wrong since DMC did not offer a description or established price for transportation services.

GAO explained that “[n]on-FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures. GAO sustained the protest, affirming that “[w]here an agency orders from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to receiving an order.”

Bottom line is that the government cannot order items or services not listed on the vendor’s FSS schedule.

For instant access to over 200 articles like this one (as well as the two new ones we add every week), join the Skyway Community.
Visit http://skywaymember.com for details.

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul compare the advantages and disadvantages of Pre-Award and Post-Award Debriefs.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

by Scott Syring

Differing site conditions, commonly referred to as unforeseen site conditions, is a term used in construction contracts to describe a previously unknown condition that, once discovered, will affect a project’s schedule and costs. For this reason, it is important for site managers to understand and be aware of the differing site conditions clause and the associated reporting obligation.
The Differing Site Conditions clause addresses the following two situations:

Type I – Conditions that materially differ from the conditions described in the contract

Type II – Conditions that materially differ from what one would expect to be encountered

As you can imagine, in older military installations, the first can be quite common due to the fact that much of the original plans and drawings may be over fifty years old and it is likely that many changes were not documented. Several years ago, I had a construction project to rebuild an intramural sports field that was shut down for safety concerns associated with tripping hazards and poor drainage. This was a straightforward project to bring the field to a usable condition and I did not expect any issues, but when the contractor was laying the sprinkler system, a giant boulder was discovered just underground in the middle of the field. It turns out, the ‘boulder’ was likely the footer from a large building previously located at the site. When the building was demoed, instead of removing the substructure, the footer was simply covered up with soil; however, the installation’s drawings were never updated.

The second condition is not quite as common, but can be exemplified in a project laying new water lines at a military installation dating back to the early 1940s. The issue arose when the contractor was digging a new trench and uncovered a 10-inch mortar ammunition. Now this would not have constituted an unforeseen site condition if the project was at an old bombing range were unexpended shells would be expected in the course of the project; however, in this case, the project was alongside a busy road next to a runway. It is safe to say that this was not the type of issue expected when bidding the project. It turns out, the small ammunition was an old training aid from the early days of the installation that somehow became lost and covered up over time. Of course this was a more extreme example, but an interesting one. A more commonplace example for this scenario occurs when a contractor is excavating a site expecting it to be comprised of sandy soil, only to discover several layers of bedrock that require removal at additional cost and with schedule impacts.

In both examples, the contractors promptly notified the contracting officer and suspension of work directions issued to allow the government time to assess. In the first scenario, the contractor was provided direction via contract modification with an equitable adjustment for the additional effort of cutting into the rock to allow the sprinkler system to cross. In the second scenario, the Government self-performed a survey of the area to determine if there were any other hazards beneath the surface. After determining the area safe from any additional ammunition, the suspension of work was lifted. To ensure this process plays out as required, it is important that prompt notification to the contracting officer be provided since failure to do so could result in denial of a request for equitable adjust.

Which brings me to the final example that occurred on a sewer lift station project. In this case the contractor was authorized to work weekends and one Saturday found that the underground piping was not located in the areas identified in the specification. However, instead of immediately notifying the contracting officer, the contractor proceeded to dig throughout the site to find the correct tie-ins. The following week the contractor submitted a claim for an equitable adjustment, but, as you might have guessed, the majority of the claim was denied. The additional digging to find the tie-ins was not needed and had the contractor provided the proper notification, the government could have corrected the issue without any action or expenses on the contractor’s part.

Differing site conditions can come in many forms as I have discussed here. For that reason, if there is any concern as to what has been discovered, it is best for the site manager to reach out to the contracting officer and discuss the issue at hand. The first two examples I provided show how this notification was done right and the third, not so well. Communication is vital in any project and ensuring your site manager is well aware of this clause will help protect your company from costly mistakes and delays.

For instant access to over 200 articles like this one (as well as the two new ones we add every week), join the Skyway Community.
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If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Kevin and Paul discuss FAR 3.2: Contractor Gratuities to Government Personnel. Learn why common behaviors in the commercial world are not allowed in the Government market and how you can get in a whole mess of trouble if you don’t understand the differences.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.

If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)

Who makes the decision to purchase something for the Government?  The answer depends on many factors, but is usually quite different from how an acquisition decision is made in your personal life or the non-Government world.

Kevin and Paul discuss the 3 main “deciders” in Government acquisition and relate them to easily recognizable roles: money, needs, and the authority/ability to make a transaction.

Learn who has the power in each Acquisition Timezone and why it is important for both Government and Industry to recognize how the power can shift.

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This episode is brought to you by Skyway Acquisition.  To get help with the Government market, become a Skyway Community member. The Skyway Community ensures you are better positioned to take advantage of opportunities and better equipped to manage the challenges of government contracts.  Members have access to one-on-one insights, time-saving tools, and training resources from our team of former COs, including the ability to get the perspective of our whole team in Ask A Contracting Officer Forum, get specialized training from our on-demand webinars and articles, targeting support through our RFP Score™ assessment tool, as well as our consulting from our team of former COs who help solve your unique puzzles. Personal memberships start at $50 with no contract. To learn more, visit skywaymember.com.

___________

Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help Government and Industry acquisition professionals understand more about how the other side thinks.  Admittedly, the podcast’s name sounds very limiting.  It is not just for contracting officers or even just for those in the contracting profession.  Anyone with an interest in the Federal acquisition world can benefit from the insight and down-to-earth explanations of complicated topics provided by the hosts.