Past Performance Briefer: Debbie Ordiway, Contracting Officer DLA Disposition Services, J-763 20 April 2011
Past Performance • DLA Disposition Services solicitation clauses (formerly known as): • 52.215-9R07, Proposal Submission Format and Content, Hazardous Waste Disposal Solicitations (L.52) • Volume II, Past Performance Proposal • Past Performance Information (PPI) Collection Documents • Volume III, Other Documents • Teaming Agreement
Past Performance • 52.215-9R15, Evaluation Factors for Award (M.10) • Significant Subfactors under Past Performance • Quality of Product or Service • Schedule • Cost Controls – (N/A for firm-fixed price or firm-fixed price with EPA contracts) • Business Relations • Management of Key Personnel • Utilization of Small Business
Past Performance • 52.215-9R24, Past Performance Proposal (L.53) • Past Performance from: • Offeror and/or Principal Subcontractor and/or Key Personnel • Definition of Past Performance • Teaming Agreement • Principal Subcontractor Consent Form • Definition of Key Personnel • “Current” Past Performance Information • “Relevant” Past Performance Information • Past Performance Information Collection Documents
Past Performance • 52.215-9R…., Contractor Teaming Agreement • To use Principal Subcontractor Past Performance for Evaluation • Binding • Clearly defines roles • Ability to continue performance • No Teaming Agreement, no use of Principal Subcontractor Past Performance
Past Performance • Past Performance Information Collection Documents • Part 1 - Instructions to Offerors • Part 2 - Key Personnel Role(s) • Part 3 - List of Past Performance Information References • Part 4A - Past Performance Information Questionnaire – Offeror • Part 4B - Past Performance Information Questionnaire – Principal Subcontractor • Part 4C - Work History/Past Performance Information Questionnaire – Key Personnel • Part 5 - Principal Subcontractor Consent Form
Past Performance • Questions? • Thank you
HAZARDOUS WASTE TRACKING AND PAYMENT PROCESS BY CATHY KEITH And RICK KLINGEL
HW Dispositions 1995-2010 By weight, 89% of final disposal transactions occurred at the initial TSDF in 2010 By line item, 55% of final disposal transactions occurred at the initial TSDF in 2010
PHASE II OVERAGE NO FINAL DISPOSAL 370 DAYS AFTER REMOVAL ACTIVE INACTIVE TOTAL TOTAL PERCENT CONTRACT CONTRACT UNTRACKED REMOVED UNKNOWN YEAR LINES LINES LINES PAST DISPOSITION YEAR__________________ DEC 2007 24,906 35,587 59,493 196,938 30.21% DEC 2008 16,087 15,173 31,260 192,385 16.25% DEC 2009 9,466 8,959 18,425 193,511 9.52% DEC 2010 8,178 15,349 17,527 185,410 9.45% MAR 2011 2,923 7,339 10,256 183,673 22.33% EVERY UNTRACKED LINE REPRESENTS A CONTRACT VIOLATION AND AN UNACCEPTABLE PERFORMANCE RISK TO THE DoD AND TAXPAYERS.
CONTRACT PAYMENTS CURRENT PRACTICE A. 100% PAYMENT OF ALL LINES AFTER RECEIPT AT INITIAL TSDF - PHASE I (CONDITIONAL ACCEPTANCE). B. FINAL DISPOSAL/RECYCLING 225 DAYS FOR INCINERATED WASTE, 315 DAYS FOR INCINERATED WASTE – PHASE II (FINAL ACCEPTANCE)
CONTRACT PAYMENTS 31 U.S.C. 3324(a)(b) states that “except as otherwise provided in the section, a payment under a contract to provide a service or deliver an article for the United States Government may not be more than the value of the service already provided or the article already delivered. One of the exceptions authorizes advances of public money if it has been authorized in a specific appropriation or other law.” FURTHER There is no specific appropriation or law that would authorize DLA Disposition Services to make an advance payment to our hazardous waste contractors. Phase I payment is paying for more than the value of the service already provided.
CONTRACT PAYMENTS DoD 4160.21M - HAZARDOUS WASTE DISPOSAL CONTRACT STANDARDS, provides that the government through its contractors must provide 100 percent manifest tracking and maintain a "cradle to grave" audit trail of documentation for hazardous waste disposal (e.g., from original turn-in to final disposal). FURTHER Transport to an initial TSDF does not comply with the oversight requirements of DOD 4160.21M nor does transport to an initial TSDF comply with the requirement of FAR Part 46, government acceptance. Payment in advance of acceptance is nothing more than an “advance payment” and is not permissible by law.
CONTRACT PAYMENTS • FUTURE PAYMENT OPTIONS • 100% Payment after completion of services AND final disposal/recycling is completed on all lines. • 2. 100% Payment for all services upon completion of services and all lines that go directly to final disposal AND 100% payment for all other waste lines that go to an interim facility, upon completion of disposal/recycling of all those lines.
Contracting Hazardous Waste Symposium 20 April 2011 Point of Contact: Reba M. HarringtonE-Mail: Reba.Harrington@dla.mil DSN: 661-5808 Commercial: 269 961-5808 Chief Counsel: Matthew Pausch DSN: 661-5986 Commercial: 269 961-5986
ADR Is Not A New Phenomenon "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them that the nominal winner is often a real loser--in fees, expenses and waste of time." - Abraham Lincoln-
ADR Seeks To Avoid The Typical Dispute Outcome We Win- -You Lose We’re Right - - You’re Wrong Our Facts Your Facts Win - -Lose GOVERNMENT VS CONTRACTOR
Benefits to the Government & Contractor • When a dispute is allowed to fester individuals will typically have to call in the lawyers to take over or maybe even worse. • Persons who are familiar with ADR can effectively “deconflict” a situation by taking charge of the dispute.
Why We Do ADR Saves Time It Advances Partnering with Industry. • It Saves Money It Supports & Promotes Positive Relationships Saves Resources It Just Makes Good Sense.
UNRESOLVED CONTACT MATTERS Failure to effectively deal with contract disputes is a formula for mutually assured destruction, misinterpretation and loss of productivity.
Alternative Dispute Resolution The Goal Is to Create a Third Reality Government Contractor Share Facts Open Honest Discussion x Z y Teambuilding Collaborate The Third Reality
With ADR, the goal is to consider the interests as well as the legal rights of the parties and effect a creative settlement. The mediation is conducted by a trained and certified neutral third-party. ADR Builds Trust Equity & Fairness Vice Legal Gymnastics
DO’S DON’T’S • Immediately notify Hesitate to ask • the CO if there is a questions. • problem . • Comply with instructions Take it upon yourself to • from the CO and/or COR perform extra work without • contacting the CO. • Direct any and all Make assumptions. • inquiries to the CO • or the COR. This is serious business!!! If you don’t know – ASK!!!
General Rules Know the parameters of your authority before entering the mediation session. You can always take a break during the session to check with key parties regarding the extent of your authority to enter into a settlement agreement. Government personnel and Contractors alike can have a representative of their choice present at the mediation session. The process is a confidential process. The discussion as well as resolution agreement is a matter between the parties/disputants and the mediator. ADR should be considered when the cost of litigating the dispute would exceed the potential recovery and a speedy resolution is desirable.
GOVERNMENT CONTRACTING IS SERIOUS BUSINESS • ADR is Reforming Dispute Resolution • Both a Useful Tool & Higher Headquarters Policy • Generally Always Worth Considering • Not an ATM or Give-Away Program • Promotes Cooperation vs. Confrontation • Efficient & Expedited Method to Resolve Disputes • Disputants Come Up with Creative Solutions • An ounce of prevention is worth a pound of cure. • . Generally Always Worth Considering
WHEN IN DOUBT Contact The DLA Disposition Services Contracting Officer or the Office of Counsel Contracting Legal Chief Counsel (269) 961-5987
Bottom Line • We value and appreciate your expertise, commitment, and diligence. We recognize that disputes do arise and we encourage you to consider the ADR process when unassisted negotiations are unsuccessful.
Commercial Solicitations Matthew Wonch 4/20/2011
Commercial Item / Service • Any item that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and— • Has been sold, leased, or licensed to the general public; or, • (ii) Has been offered for sale, lease, or license to the general public; • (3) Any item that would satisfy a criterion expressed in paragraphs (1) or (2) of this definition, but for – • (i) Modifications of a type customarily available in the commercial marketplace; or • (ii) Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements.
Commercial Item / Service • “of a type” broadens the commercial item definition so that qualifying items do not have to be identical to those in the commercial marketplace. The best value offer in a competitive Part 12 solicitation can be for an item / service that has previously satisfied the Government’s need but has not yet been sold to the general public. –Office of the Secretary of Defense, Commercial Handbook, November 2001. • DLAD 12.102(90)(iii): Services acquired by the Government do not have to be identical to those provided to commercial customers, if there are sufficient common characteristics between the commercial service and those required by the agency.
Commercial Item / Service • FAR 13.003(a) Agencies shall use simplified acquisition procedures to the maximum extent practicable. • DLAD 12.102 (90)(1)(i) The contracting officer has the latitude to employ the full flexibility of the FAR definition and the responsibility for making the best business decision appropriate to the total circumstances surrounding a particular acquisition. • Contracting officers should consider whether applying commercial acquisition procedures would provide advantages resulting in lower costs to the Government; such as: • - Streamlined contractor proposal procedures • Increased efficiencies for DLA • Reduced customer wait times • Improved acquisition strategies
Commercial Item / Service • When market research indicated that the Government’s need can be met by an item of supply or a service that meets the broad definition of a commercial item and that is of a type customarily available in the market place, then the contracting officer must solicit and award a contract using the commercial item acquisition policies found in FAR Part 12. • FAR Part 12 prescribes policies and procedures unique to the acquisition of commercial items, but it is not a “stand alone” part. The FAR Part 12 policies must be used in conjunction with the policies and procedures for solicitation, evaluation, and award of contracts and orders set forth in either Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contract by Negotiations, as appropriate for the particular acquisition.
Commercial Item / Service • FAR Subpart 13.5 authorizes a test program that allows issuance of solicitations under simplified acquisition procedures for procuring supplies and services in amounts greater than the simplified acquisition threshold but not exceeding $6.5 million, including options. • The test program’s purpose is to vest contracting officers with additional procedural discretion and flexibility, so that commercial item acquisitions may be solicited, offered, evaluated, and awarded in a simplified manner that maximizes efficiency and economy and minimizes the burden and administrative costs for both the Government and industry.
52.212-4 -- Contract Terms and Conditions -- Commercial Items • This clause includes terms and conditions which are, to the maximum extent practicable, consistent with customary commercial practices and is incorporated in the solicitation and contract by reference • 52.212-5 -- Contract Terms and Conditions Required to Implement Statutes or Executive Orders -- Commercial Items • This clause incorporates by reference only those clauses required to implement provisions of law or Executive orders applicable to the acquisition of commercial items. • 52.212-2 -- Evaluation -- Commercial Items. • Include a similar provision containing all evaluation factors required by 13.106, Subpart 14.2 or Subpart 15.3, as an addendum (see 12.302(d)). • 52.212-3 -- Offeror Representations and Certifications -- Commercial Items. • This provision provides a single, consolidated list of representations and certifications for the acquisition of commercial items and is attached to the solicitation for offerors to complete
Synopsis / Solicitation • FAR 5.203, 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). • (b) The contracting officer must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond to each proposedcontract action, (including actions where the notice of proposed contract action and solicitation information is accessible through the GPE) • https://www.fbo.gov/
Small Business Size Challenge Letters • Simplified acquisition procedure acquisitions do not require the agency to issue a pre-award notice to unsuccessful vendors. • 13 CFR 121.1004 (a)(4) Electronic notification of award Where notification of award is made electronically, such as posting on the Internet under Simplified Acquisition Procedures, a protest must be received by the contracting officer before close of business on the 5th, exclusive of Saturdays, Sundays, and legal holidays, after the electronic posting. • (c) Effect of contract award. A timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest • (d) Untimely protests. A protest received after the allotted time limits must still be forwarded to SBA. SBA will dismiss untimely protests.
Administrative cost savings • Contract cycle time reduction
DEFENSE LOGISTICS AGENCY AMERICA’S COMBAT LOGISTICS SUPPORT AGENCY WARFIGHTER SUPPORT ENHANCEMENT STEWARDSHIP EXCELLENCE WORKFORCE DEVELOPMENT
TIME AND MATERIAL/LABOR HOUR AND COST REIMBURSEMENT REQUIREMENTS - THE WINDS OF CHANGE - IT’S UP TO US AND THE TIME IS NOW TRACY M. HART Chief, Acquisition Hazardous East Branch April 21, 2011
QUOTES FROM FAMOUS PEOPLE ON GOVERNMENT CONTRACTS • The universe never did make sense; I suspect it was built on a Government contract. - Robert A. Heinlan, American Science Fiction Writer, 1907-1988 • It is a very sobering feeling to be up in space and realize that one’s safety factor was determined by the lowest bidder on a Government contract. - Alan B. Shepard, Jr., Rear Admiral, USN, Retired and NASA Astronaut, 1923-1998 • I’ve directed the Department to more aggressively manage the more than $200 billion it spends annually on services….more than 50 percent of the Department’s contract spending. - The Honorable Ashton B. Carter, DoD Undersecretary for Acquisitions • Noncompetitive contracting, cost-reimbursement contracts, and time-and-materials and labor-hour contracts pose special risks of overspending. - Peter R. Orszag, Director, Office of Management and Budget, Executive Office of the President • Reports by agency Inspectors General, the GAO and other independent reviewing bodies have shown that non-competitive and cost-reimbursement contracts have been misused, resulting in wasted taxpayer resources, poor contractor performance and inadequate accountability for results. - President Barak Obama • Throw in some quotes from famous people about Government contracts. That will eat up some “time” and give you plenty of “material.” - Steve Sprague, Chief, Acquisition Hazardous Division, DLA Disposition Services
OUR USE OF TIME AND MATERIALS/LABOR HOURS AND COST REIMBURSEMENT (T&M/LH+CR) LINES ON HW CONTRACTS • SERVICE CLINs • Defined as anything the contractor is to perform aside from regular waste disposal removals • All are identified as 6000 series CLINs…Examples: • Most of our contracts prior to FY 11 contain at least one or a few line items for services with “Units of Issue” identified as labor “Hours” (such as tank cleaning, emergency spill response or management of environmental program/storage facilities) • Some have line items with a “Not to Exceed (NTE)” amount for reimbursements to the contractor for providing equipment and/or supplies (such as empty drums) • A few have “call order” type structures that obligates a set amount of funds to cover specific services to be performed within a set timeframe (i.e., unit of issue with an “Each” covering 30 days, etc.) – primarily used when customers have their qualified staff appointed by DLA Disposition Services as Contracting Officer Technical Representatives (COTRs)
OUR USE OF T&M/LH+CR LINES ON HW CONTRACTS • SERVICE CLINs, cont. • These types of CLINs are considered to be structured as a “Time and Material and Labor Hour (T&M/LH)” and/or “Cost Reimbursement (CR)” type actions • These type services have historically been incorporated into DLA Disposition Services HW “Firm-Fixed Price (FFP)” contracts, resulting in a “hybrid” structure • FFP contracts place maximum risk on the contractor, have set unit prices that are not negotiable and are based on an assumption that requirements are known • T&M/LH and CR contracting are the least preferred contract types due to perceived oversight and overspending concerns but they may play an important role in helping the Government meet its needs in certain situations when it’s not possible to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of confidence
RESTRICTIONS ON T&M/LH+CR REQUIREMENTS • To ensure the appropriate and effective use of T&M/LH contracts and/or line items, the COs must, in accordance with FAR 16.601: • Establish that no other contract type is suitable before using it • If the period of performance exceeds 3-years approval by the Head of the Contracting Activity is required • Document their findings in a written Determinations and Finding document • Recognize that once needs become known, they must maximize the use of other contracting structures, such as migration to FFP • Each T&M/LH contract must include a ceiling price that the contractor may not exceed • For noncommercial contracts, the CO is required to justify the reasons for an amount of any changes in the ceiling price (FAR 16.601) • There’s a variety of clauses and restrictions pertaining to payment, subcontractors, inspections and corrections of defects, and Government access to records for both commercial and non-commercial contracts for competitive and non-competitive situations using these structures
WINDS OF CHANGE…INCREASED SCRUTINY • T&M/LH AND CR TYPE SERVICES, cont. • Emphasis on the declining acceptance of these type structures have recently increased: • Executive Office of the President, Office of Management and Budget Memorandum to the Heads of Departments and Agencies dated July 29, 2009, subject: Improving Government Acquisitions, Director Peter R. Orszag • In part, mandates a ten percent (10%) reduction of high risk contracting authorities specifically calling out T&M/LH and cost reimbursement actions – “…pose a risk because they provide no direct incentive to the contractor for cost control…agencies should begin taking actions to reduce use of these high risk contracting authorities for new contract actions.” • DLA Disposition Services Contracting Officers have been reminded of the least preferred status of any T&M/LH+CR requirements on contracts and the requisite high-level scrutiny required for their use….Activities are tasked to review new and ongoing actions to “…ensure strategies are being developed for the suitable migration of T&M/LH+CR requirements to other contract types.”
WINDS OF CHANGE…MIGRATING TO FFP STRUCTURES • T&M/LH AND CR TYPE SERVICES, cont. • What does this mean? • As renewal actions have come up we’ve attempted to redefine the contract’s specialized management services from T&M/LH + CR lines to a FFP structure • This can be done by: • Identifying and describing: • Required actions the contractor must complete in support of the desired service • Types of equipment and supplies the contractor must have in order to successfully perform the desired function, if known • Providing historical data (i.e., work count, number of hours worked per month in the past, per employee, in support of the function, total number of people) • Changing “Units of Issue” from “Hours” to “Each” and eliminating “Not to Exceed” (NTE) requirements
WINDS OF CHANGE…WHAT WE CAN DO • T&M/LH AND CR TYPE SERVICES, cont. • Providing offerors with historical data should provide the contractor with a better understanding of our expectations • Because emergency spill response services cannot be predicted and has minimum impact on a contract’s scope dollar wise in comparison to the more significant services like management of customer storage facilities and/or the running of their environmental program, we will continue to seek HQ DLA approval to structure them as currently written in our contracts • We will work with individual customers to help define any other unique management service under a FFP structure but it has to be done thoroughly and quickly in order to not delay the acquisition cycle and subsequent award
OUR RESPONSIBILITIES FOR T&M/LH+CR REQUIREMENTS • Contractors must proactively work to contain costs and communicate concerns to CORs/COTRs and Contracting staff • CORs/COTRs must stringently monitor these services in accordance with the contract’s Acceptable Performance Levels (APLs) and supporting Quality Assurance Surveillance Plan (QASP) • COs and Contract Specialists must enforce all contract requirements and diligently monitor the use of these requirements • Everyone, including Program Office Environmentalists and generators, must work together to develop a workable strategy for migration to a FFP structure (excluding emergency spill response requirements) • Any suggestions on how best to identify/convert these requirements into a FFP structure? We appreciate your understanding of this mandate for change during this transitional period – thank you!
JUST SOME “FUNNIES” (KINDA…) • Why do they bury CO’s 12-feet deep? • Because deep down we’re good guys and gals • Why don’t sharks attack COs? • Professional courtesy • Do you know how to save a drowning a CO? • Take your foot off her head and let her get off the stage!