dod implements the december 13, 2017 memo from mr....

NCMA NOVA NEWS – DECEMBER 2017 1

DoD Implements An

Exception to the Requirement to

Evaluate Cost or Price

The 2017 National Defense Authorization Act

(NDAA) gives the Department of Defense the

latitude to exclude price from evaluation factors.

This latitude is effective for the solicitation of

multiple task or delivery order contracts that are not

8(a) sole source orders. Announcing the new latitude,

a December 13, 2017 Defense Pricing and Defense

Procurement (DPAP) memorandum states:

Currently, contracting officers must evaluate

price or cost as a factor in the selection

decision for both the award of a multiple-

award contract and each order placed

against the multiple-award contract. This

deviation permits contracting officers to

evaluate cost or price only at the task- or

delivery-order level, as long as the multiple

award contracts under which the orders are

being placed are for the same or similar

services and a contract award was made to

each and all qualifying offerors.

“Qualifying offerors” is defined in Section 825 of the

2017 NDAA. Offerors must be a responsible source.

They must submit a proposal that conforms to the

requirements of the solicitation. Finally, they must

not give the contracting officer a reason to believe

they would offer pricing that is not fair and

reasonable in subsequent task or delivery order

competitions.

The December 13, 2017 memo from Mr. Shay Assad,

Director of DPAP, is effective immediately.

Defense Procurement and Acquisition Policy

Class Deviation - 2018-O0006

Evaluation Factors for Certain Multiple-

Award Task- or Delivery-Order Contracts

https://www.acq.osd.mil/dpap/policy/policyvault/

USA003813-17-DPAP.pdf

INSIDE THIS ISSUE:

DoD Implements Exception to the

Requirement to Evaluate Cost or Price

Guest Author Spotlights: Leona Charles

and Louis Lamanna

FAR Part 49 - Termination of Contracts

The Greater Pittsburgh Chapter: An

Interview with Chapter President Louis Lamanna

Contracting Officer’s Dilemma

Fast Five

NOVA NEWS Call for Articles

NOVA NEWS: Guest Authors

NOVA Member Anniversaries

https://www.flickr.com/photos/115089924@N02/12212272513


NCMA NOVA NEWS

GUEST AUTHOR SPOTLIGHTS:

LEONA CHARLES

and

LOUIS LAMANNA

By Brian Baker - NCMA NOVA News Editor

This month, NCMA NOVA News is fortunate to have

the contributions of two members from sister chapters.

Maryland’s Chesapeake Bay Chapter Past President

Leona Charles, and Pennsylvania’s Greater Pittsburgh

Chapter President Louis Lamanna, leverage their

expertise to share thoughts on Terminations and what

it takes to ensure the growth of a vibrant chapter.

When Hurricane Irma swept through Puerto Rico, it

left 3.5 million residents without power, and the

island’s aging electrical infrastructure teetering on the

brink of collapse. Two weeks later, that infrastructure

crumpled under the 155 mile per hour winds of

Hurricane Maria, and every resident of Puerto Rico

found themselves without power.

In an effort to field to repair crews, the Puerto Rico

Electric Power Authority (PREPA) awarded a contract

1 Steven Mufson, Arelis R. Hernández and Aaron C. Davis,

“Puerto Rico moves to cancel contract with Whitefish Energy

to repair electric grid,” The Washington Post, Business Section,

October 29, 2017, (accessed December 3, 2017),

https://www.washingtonpost.com/business/economy/puerto-

to Whitefish Energy. That contract sparked

controversy because of the lack of transparency in the

pricing fair and reasonable determination, and

Whitefish Energy’s apparent lack of capacity:

“The contract with Whitefish Energy — a firm

that had just two employees the day the storm

hit — had drawn blistering criticism from

members of Congress for days. And on Friday

the Federal Emergency Management Agency,

which has a large role in determining

government reimbursements, said it had

“significant concerns” about how the contract

was secured.”1

By October 29, 2017, the contract to Whitefish was on

the path to termination. Given the foundering

relationship between Whitefish and PREPA, Leona

Charles’ article on terminations is timely. Ms. Charles

provides an overview of the process surrounding

terminations, and a seven part framework that

terminated companies can utilize to ensure that parting

ways occurs with the least amount of potential damage

to their potential for future business opportunities.

Every NCMA chapter is brought to life through the

conscientious efforts of their members. In this issue,

we are featuring an interview with Greater Pittsburgh

rico-governor-says-contract-to-whitefish-company-should-be-

canceled/2017/10/29/e5336cda-bcb8-11e7-97d9-

bdab5a0ab381_story.html


Chapter President Louis Lamanna. Mr. Lamanna is

the author of two separate books that were devoted

to informing and honoring the members of his

chapter:

Glossary of Selected Acronyms, Terms and

Expressions Used in the Contract

Management Profession - First Edition

Anniversary Book for NCMA - Pittsburgh

The glossary features 451 terms that are common to

acquisition, and that are made unique through their

origin from treasured and lifelong contributors to the

Greater Pittsburgh Chapter. The anniversary book

was crafted for the chapter’s 2012 35th anniversary.

With a charter issuance date of January 25, 1977, the

Greater Pittsburgh Chapter has seen NCMA grow

from a 1977 membership of 6,400 members, to the

more than 18,000 that are engaged in the association

today.

Just in the decade prior to the 2012 anniversary, the

Greater Pittsburgh Chapter recorded over 52

different training events to the benefit of their

members. These members came from educational

institutions like Carnegie Mellon University and the

University of Pittsburgh, from Federal entities such

as the Department of Defense, the Department of

Energy, the Centers for Disease Control, and the

Department of Homeland Security, and from

employers such as Westinghouse, General Electric,

and Bechtel.

In this issue of the NCMA NOVA News, we are

delighted to bring you the expertise of Chesapeake

Bay Chapter Past President Leona Charles, as she

shares insights in acquisition, and the observations of

Greater Pittsburgh Chapter President Louis Lamanna

as he shares his pride of membership, and some

insights in how to better engage NCMA members.

https://pixabay.com/en/trip-around-the-world-explore-cities-996858/


So, it’s come to this? Termination is never easy, but it does happen and when it does you need to be

prepared. Here’s what you need to know.

The Government does not enter into terminations

lightly, as a matter of fact the Federal Acquisition

Regulation (FAR) instructs that “the contracting

officer shall terminate contracts, whether for default

or convenience, only when it is in the Government’s

interest” and if the remaining contract performance

or delivery is over $5,000 in value. If the remaining

value is below $5,000, the Government will allow the

contract to run its course.2

What You Can’t Be Terminated For

As a contractor, once you accept an award, there is a

long list of responsibilities and expectations that

focus on a failure to deliver or to perform. Almost as

important is knowing what you are not responsible

for. When it comes to terminations for default, a

contract cannot be terminated for:

Acts of God or of the public enemy,

Acts of the Government in either its sovereign

or contractual capacity,

Acts of another contractor in the performance

of a contract with the Government,

2 FAR 49.101 (b), (c) Authorities and Responsibilities

Fires,

Floods,

Epidemics,

Quarantine restrictions,

Strikes,

Freight embargoes,

Unusually severe weather, or

Delays of subcontractors or suppliers at any tier

arising from unforeseeable causes beyond the

control and without the fault or negligence of

both the contractor and the subcontractors or

suppliers. 3

Pay special attention to the last one. As contractors,

subcontractors are vital to our supply chain and many

3 FAR 52.249.8 (c)- Default (Fixed-Supply and Service)


contract difficulties occur when there is a breakdown

in our supply chain.

Additionally the Government will try to pursue no

settlement terminations as they are the most

advantageous to the Government. No settlement

terminations will occur when these conditions exist:

4 FAR 49.101 (b) Authorities and Responsibilities

The contractor has made it known that they will

accept a no settlement termination.

The Government has not been provided

property (or service).

There are no outstanding payments, debts to the

Government or other contractor obligations.4

Settlements are the responsibility of the Terminating

Contracting Officer. This could be your current

Contracting Officer or it may be assigned to a

completely new one to maintain an environment of

neutrality. Whoever it is, you will be notified in

writing of who will be handling your termination.

How do you know you’ve been terminated?

Much like getting fired from a job, a termination of

contract is most likely an event you know is coming.

When the gauntlet falls, the FAR lays out a strict

notification procedure. Embracing the technological

aspects of contracting, your official Notice of

THE WHITEFISH ENERGY TERMINATION

The Whitefish Energy contract indicates how quickly an

award can become a cancellation. Awarded as a no-bid

contract in September 2017 to rebuild Puerto Rico’s

electric grid, by October 29th the Puerto Rico Electric

Power Authority (PREPA) announced cancellation of

the $300 Million contract.

This cancellation occurred when the award was no

longer in the best interest of the government. The

contract contained a termination clause that stated:

“PREPA may, at any moment, terminate, cancel or

accelerate its expiration, after giving the Contractor

not less than thirty (30) days prior notice, for any or

no reason, when in PREPA’s judgment such action

responds to its best interest.”

- PREPA Contract 2018-P00029A, Article 14, p. 11


Termination could come as an email. Electronic

communication is deemed an acceptable form of

official communication in the FAR.5 If the

termination is sent via the U.S. Postal Service, it must

be mailed with a return receipt. If it is hand-delivered

it must contain a statement that the contract is being

terminated for convenience or default, the

corresponding contract clause, the effective date of

the termination, the extent of the termination and any

special instructions.

What now?

It seems bleak, but there is light at the end of the

tunnel. A termination can be called off. It’s not

typical but it is a glimmer of hope; the relationship

can be salvaged, costs to replace the contractor can be

avoided and reinstalling you as the contractor can be

in the best interest of the Government.6

There is a seven part framework to consider when

creating an appeal to have a termination rescinded.

Your attempt to have a termination rescinded should

provide a realistic rebuttal for as many of these areas

as possible.7

(1) The terms of the contract and applicable

laws and regulations.

Know what the contract required and find a way to

show that your performance satisfies the contract.

5 FAR Part 49.102 (a)-Notice of Termination 6 FAR Part 49.102 (d)-Notice of Termination

(2) The specific failure of the contractor and

the excuses for the failure.

Have reasonable and justifiable excuses for anything

required by the contract that you could not do. Be

sure to show how procuring these items from other

vendors would cost the Government more in terms of

money, time and effort.

(3) The availability of the supplies or services

from other sources.

Highlight why you are still the best option. You will

need to walk a fine line here, because you have

previously had a misstep.

(4) The urgency of the need for the supplies or

services and the period of time required to

obtain them from other sources, as compared

with the time delivery could be obtained from

the delinquent contractor.

In your response, point out how much of a burden it

will be to the Government to resolicit the work and

how much a delay will cost the Government in terms

of time and resources.

(5) The degree of essentiality of the

contractor in the Government acquisition

program and the effect of a termination for

7 FAR Part 49.402-3 (f) 1-7-Procedure for Default


default upon the contractor’s capability as a

supplier under other contracts.

This is where your relationships and business

development efforts will show full value. You need

to maintain a good relationship with the client in

order for them to concede that there is some essential

element of the contract that you have to perform.

They need to be able to visualize that they still need

you. At no time should you utter, either verbally or

in writing, the words “you still need me,” but there

should be some tactful alluding to that point.

(6) The effect of a termination for default on

the ability of the contractor to liquidate

guaranteed loans, progress payments, or

advance payments.

Your ability to repay Government loans, or otherwise

provide performance or delivery commensurate with

the progress/advance payments you have received is

a factor the Contracting Officer must consider. It

may prompt the Contracting Officer to seek remedies

other than termination. Also bear in mind that there

are viable termination defenses when a default is

clearly linked to the Government’s failure to make a

timely progress or advance payment. The late

payment must have left you financially incapable of

performance or delivery.8

(7) Any other pertinent facts and

circumstances.

Anything else you can think of that may help your

case, including any clause that will help bolster your

point of view of why you were unintentionally unable

to perform, is the way to go. If you intentionally

failed to perform, you are just going to have to throw

yourself on the mercy of your Contracting Officer.

Provide the customer with an airtight plan on how

you will mediate the deficiencies. Termination

comes after a cure notice, so it stands to reason that

8 U.S. Army, 2014 Contract Attorney’s Deskbook, Chapter 20,

Contract Payment, (accessed November 27, 2017), p. 20-4.

https://www.loc.gov/rr/frd/Military_Law/pdf/CAD_2014_Ch20

.pdf

BEFORE YOU

THROW IN

THE TOWEL

Before you give in to a termination, be

sure that every single rule and timeline

has been followed. In particular, when

the Government fails to timely exercise

its right to terminate for default it may

waive that right.

Tangible evidence of that waiver occurs

when the Contracting Officer has made

revisions to delivery schedules and

encouraged the contractor to perform

after the delivery date.

- Robert Douglas Parsons, “Armed Services

Board of Contract Appeals: analysis of

sustained decisions on DOD supply contract

disputes,” 1886-12, Calhoun, Institutional

Archive of the Naval Postgraduate School,

(accessed November 27, 2017), p. 34

https://calhoun.nps.edu/bitstream/handle/10

945/18617/armedservicesboa00pars.pdf?seq

uence=1


you’ve not satisfied previous attempts to solve the

problem. Acknowledge previous shortcomings and

provide the steps you will take to ensure that they will

not occur again. Provide a quick timeline, I’m talking

within seven days, for the mitigation and correction

to begin. Provide the customer with a way to monitor

and verify checks. Help them help you. Whether it

is a daily status call or a weekly monitoring report, be

accessible and amendable to questions and requests

for information.

Knowing why you can be terminated and what can

cause that termination is crucial in your success as a

contractor; knowing how to navigate a termination

may well be the defining factor in the success of your

organization. While not the outcome you strive for

as a contractor, how you handle the termination can

sometimes be much more important than the fact that

you received a termination. Terminations will follow

you for every future proposal declaration and every

future award. You will need the Terminating

Contracting Officer to speak favorably of you in an

unfavorable circumstance.

PREPA Contract 2018-P00029A

https://www2.aeepr.com/Documentos/Ley57/CON

TRATOS%20GENERAL/2018-

P00029A%20WHITEFISH%20ENERGY%20HOLDINGS,%20LLC..pdf

Ms. Leona Charles is a

seasoned professional

with over 15 years of

experience in project

management, acquisition

and Federal procurement

reporting. She has

proven experience in

developing diversity

goals in contracting and

commercial departments,

managing and

developing diversity

program reviews, policy

implementation,

advocacy, and strategic

research. Key skills include: training, organizing,

conducting analysis of organizational and projects,

public speaking and staff development. She supports

a broad spectrum of clients including the

manufacturing industry in the United Kingdom, the

U.S. Department of Defense and U.S. nonprofit

organizations. Ms. Charles is the President and

Chief Executive Officer of SPC Business Consulting,

and is the Past President of NCMA’s Chesapeake Bay

Chapter, in Saint Mary’s County, Maryland.

Upcoming events, news, and resources for the

Chesapeake Bay Chapter are located:

http://ncmachesa.org/.

NCMA CHESAPEAKE BAY CHAPTER

http://ncmachesa.org/


The National Contract Management Association’s

(NCMA) Greater Pittsburgh Chapter resides in an

acquisition environment that holds a good mix of

industry and government perspectives. Chapter

President Louis Lamanna notes:

“Western Pennsylvania has a long and proud

history of Government contracting from WW

II to the present. During WW II, this area was

one of the greatest contributors to FDR’s

Arsenal of Democracy, producing all types of

defense products for the war effort. In the

early 1950’s, the Westinghouse Bettis Atomic

Power Laboratory had a major role in the

design and development of the world’s first

nuclear submarine, the USS Nautilus, and

that role continues through today. In current

times, Carnegie Mellon University is

performing numerous software engineering

contracts for the DOD and other Government

agencies.”

NCMA Benefits: Two Networks

This mix created by a hub of acquisition and contract

performance is exactly what is needed to provide a

lively forum for the exchange of ideas and viewpoints

within a NCMA chapter. For Mr. Lamanna, that

exchange is the primary benefit of NCMA’s network.

He helms the volunteer efforts of the Greater

Pittsburgh Chapter with a philosophy articulated by

his mentor, former Director of Government

Accounting for the Westinghouse Electric

Corporation, George Muhlberg:

“He was a big advocate of the value of

networking. Not so much how you advance

yourself, but how you succeed in your job by

reaching out to experts in other areas where

you’re not an expert. You become aware of

them by attending NCMA meetings. When a

shipping problem comes up you say ‘gee, I

know there’s a guy over at Curtis Wright who

works in the shipping department and there’s

no need for me to become an expert in this.

I’ll just tap into his brain.’ That was a big

plus with George, and it is with me. You

become aware of people with other expertise

and you tap into it.”


Mr. Lamanna pointed to the August 2017 issue of

NCMA’s CM Magazine as one example of how

NCMA creates access to knowledge, and a shortcut

to problem-solving. The magazine’s focus on State

and local acquisition issues provided topical

information that was relevant to a key constituency in

his chapter. It was something that he immediately

shared with chapter members affiliated with state and

local government procurement offices.

Mr. Lamanna is also an advocate of relationship

building within NCMA as part of an essential

professional network. Career changes are not made

overnight. He likens the development of a

professional network to the

time and effort that a farmer

has to invest before

harvesting any benefits:

“Let’s say you

suddenly lose your

job. You can’t just

go out and network.

That’s something

you have to cultivate

so the crop is there

when you need it.”

Leadership Goal: Creating Avenues for Chapter

Members to Engage

To make sure that the members of the Greater

Pittsburgh Chapter have the benefit of both problem-

solving and career networks, Mr. Lamanna and the

chapter’s volunteers have invested in training and

special events. The investment of these volunteer

efforts is dedicated to creating pathways for new

members to join, for inactive members to find ways

to contribute, and for active members to continue to

grow. In particular, they seek to engage current

members that have yet to find a way to contribute. He

describes these inactive members as “resume”

members.

“A resume member is an individual who

belongs to an organization primarily so they

can list it on their resume... They pay their

dues. They may come to a meeting here or

there. They may attend a training seminar.

But the idea of belonging to an organization

is that you’re reasonably active on an

ongoing basis.”

There is absolutely nothing wrong with the inactivity

that is seen among rank and file “resume” members,

but as a chapter leader, the goal is to create events and

opportunities that activate these members. After all,

having their voices at the table as experts and as

contributors is essential to any NCMA network of

problem solvers. Helping inactive members to

realize the value of an

extended professional

network for their future

career development is also

key.

Events: Lessons Learned

To engage new members and

to provide a social

experience for current

members, the Pittsburgh

Chapter hosted an event at

PNC Park, home of the

Pittsburgh Pirates, that was heralded by a 90 minute

presentation from NCMA’s DC Chapter Past

President Ron Perlman, partner at the law firm

Holland & Knight. Mr. Perlman has been

consistently well-received by audiences, and in this

case, the event drew over 100 attendees, who then

were able to tour the park behind the scenes before

adjourning to a reception at a nearby restaurant. The

chapter courted new members by subsidizing the

membership dues for any attendees.

By most measures, the engagement was a success.

The social experience and presentation by Mr.

Perlman were lauded, but the investment was not an

effective method to recruit new members:

“The whole nine yards cost us about $4000 in

round numbers. It netted us three new

“Let’s say you suddenly

lose your job. You can’t just

go out and network. That’s

something you have to

cultivate so the crop is there

when you need it.”


members… We’d have been better off paying

everybody’s membership. It was a very first

class affair, but I was disappointed with the

yield it brought.”

Another lesson learned involved the former practice

of dinner meetings. Twenty years ago, dinner

meetings were the preferred method of training and

socializing. With the change in demographics, the

chapter’s membership has evolved to prefer seminars

that occur during the business day:

“In our heyday, we were able to put a [dinner

meeting] program out that ran monthly,

September through April, skipping

December. In modern times, when we tried to

do it, we haven’t had much success. We’ve

backed away and are doing half-day and

whole day seminars.”

Successful Strategies: Training

Mr. Lamanna advocates training as a hallmark of

NCMA outreach. The caliber of instruction is a

testament to the quality of chapter volunteers where

they are the instructors, and the training experience

itself - particularly a multi-day certification

preparatory series - reinforces NCMA’s networking

benefits. He recalled the value of his own

certification training:

“It was excellent because it was a group study

event. There were good interactions, and

long-time friendships formed. We had ten

people who participated and all ten passed.”

The preparatory course was conducted by the chapter

using after-hours office space donated by

Westinghouse Electric. The instructors were all

volunteers or class participants. Participants led the

instruction by taking responsibility for preparing

class materials in assigned subject areas, and then

presenting that information to the rest of the class. It

was highly-participative group study. All the

participants that later took and passed the credential

test (e.g., Certified Professional Contract Manager

examination) received a refund for the exam test fee.

The Greater Pittsburgh Chapter also had the

credential professionally framed for presentation to

the member.

In addition to the certification courses, Mr. Lamanna

recommends that chapter leaders consider multi-

disciplinary events that provide attendees with a

variety of subjects.

“We do a thing once a year… called the

Contract Manager’s Toolkit. Rather than

have just one subject, we will have three or

four subjects of varying types of about an

hour each. That way you’re increasing the

attractiveness of the class to a broader range

of people. Not everybody wants to hear seven

hours of contract cost principles. But we’ll

run …an hour on what we call hard skills, like

cost principles, and then we’ll offset it with

what we call a soft skill, like how to read


people. We’ve actually brought in

professionals that teach people how to read

body and face language.”

Organizing the event for volunteers is problematic.

The logistics revolve around keeping costs at

absolute minimums to best preserve the chapter’s

financial resources. Many speakers will appear for

little or no cost. Sometimes the speaker will speak

for free, but will need reimbursement for travel costs.

The most that the chapter has paid for a speaker is

$1000.00, but that was a substantially reduced fee

that the speaker provided based on NCMA’s role as a

not-for-profit organization.

The goal is to ensure that the per student cost

approximates $100.00. In turn, that keeps the price

of attendance low. The chapter has never charged

over $200.00 for a seven hour one-day class, with a

continental breakfast and a box lunch.

Every NCMA chapter is entitled to receive two free

webinars from NCMA national. Offering these

webinars as free events timed to the last 90 minutes

of the business day resulted in a turn-out of 20 people

for each webinar. Full day National Education

Seminars (NES) are also available from National

NCMA with a roster of ten current topics and content

delivery by subject matter experts. The turnout for

the Greater Pittsburgh Chapter’s last NES drew 85

attendees.

A high level of chapter member involvement doesn’t

just rely on the quality of training, or the interest

attached to the content. Chapter leaders must provide

tangible investments in their membership. For the

35th anniversary of the Greater Pittsburgh Chapter,

Mr. Lamanna created two books to honor the

members. The first is the history of the Greater

Pittsburgh Chapter, filled with artifacts, articles, and

photos. The second book is a “Glossary of Selected

Acronyms, Terms And Expressions Used In The

Contract Management Profession.” In addition to

providing a resource for acquisition professionals, it

served as anniversary keepsakes for the members.

NATIONAL EDUCATION

SEMINARS

100 Worst Mistakes in

Government Contracting

Contract Changes, Disputes,

and Terminations

Contract Types

Cost Estimating and

Contract Pricing

Developing Winning

Proposals - Proposal

Preparation Techniques and

Tips

FAR Essentials

Key Contract Terms and

Conditions

Risk Management for

Complex US Government

Contracts and Projects

Subcontract Management

From A to Z

The COR Member of the

Acquisition Team: The

Contracting Officer’s

Representative Guide to

Performance and Quality


Mr. Lamanna took pains to include references that

would be recognized by his members:

“Interspersed with the contracting terms

were some local expressions from some of

our more colorful members.”

Trends:

When asked for a sense of trends that he has noted

over his decades of service within NCMA, Mr.

Lamanna noted a change in the willingness of

members to attend after-hours events. Twenty years

ago, members preferred social gatherings in the

evening, with a dinner event being the best attended

example. Current members prefer limiting their

attendance to hours during the working day.

“We have the sense that the new people

coming up through the ranks today go in and

do their job and when it’s quitting time, they

want to go off and not do things like attend a

NCMA meeting. Whenever we have evening

training, it is less attended than when we offer

the training during the work day. This is my

opinion: that they don’t want to invest in

themselves in their personal time. I find that

troubling.”

Lamanna notes that the trend is not restricted to

NCMA.

“As far as volunteer organizations in general,

we have volunteer fire departments in Greater

Pittsburgh that have had to resort for some of

the daytime and other shifts to hiring

professional firemen because they can’t staff

it just with volunteers the way that they could

10-15-20 years ago… All the volunteer

organizations are experiencing this change in

attitude.”

To deal with the potential gap in involvement, the

Greater Pittsburgh Chapter has used a highly

effective intervention. They reach out to contract

management (CM) executives:

“One way we have tried to engage increased

participation is via communication with

Pittsburgh-area CM managers. Specifically,

we remind them that during performance

appraisals, if development needs are

identified, serving as an Officer or Committee

Chair in NCMA is a good way to address such

needs.”

A stumbling block to greater levels of involvement

stems from the occasional - and erroneous -

interpretation from Federal sources that agency

employees may not be members or serve as officers

in NCMA.

“We periodically have to reeducate the

management people in the local Federal

offices that you’re allowed to be a member

and that you’re allowed to be an officer. All

they have to do is look at the NCMA

magazine. Many of the current national


officers hold Government contracting

positions. But people get it in their head. It’s

an urban myth that they can’t engage. We go

through cycles of that.”

The trend away from after-business day involvement

may also be related to the reluctance of organizations

to reimburse for NCMA membership dues and

training expenses. In that regard, the financial and

time costs for membership falls upon individuals

rather than on a business. To that, Mr. Lamanna

argues:

“…if you’re not willing to invest in yourself,

why would others want to invest in you? Your

company doesn’t reimburse you? I

personally think is a weak reason for not

engaging. Aren’t you, as an individual, worth

it?”

GLOSSARY OF SELECTED ACRONYMS, TERMS AND

EXPRESSIONS USED IN THE CONTRACT MANAGEMENT

PROFESSION - First Edition: April 2012, by Louis Lamanna Excerpts from 451 terms collected to commemorate the Greater Pittsburgh Chapter’s

35th anniversary, and as a tribute to long-time members George Muhlberg (GKM)

and Carroll Lambton:

Butts in Seats - employees that are hired, security-cleared, on-site and

actually working (sitting in seats).

DCN - Directive Change Notice: when the Buyer or the Government

unilaterally directs a contract change. Typically this exposes the Buyer or

the Government to delay, disruption and various other costs.

D&P show - dog and pony show; a GKM favorite: when a presenter pulls

out all stops, and goes forth with an extensive array of charts and slides in

their presentation.

Evergreen Clauses - clauses that provide for the automatic renewal or

extension of an agreement, if the Buyer does not provide notice to the Seller

otherwise; many people in the contracting community have a dim view of

such clauses, for multiple reasons.

Golden Parachute - a large sum of money paid to an employee, usually an

executive, to leave a company, following a change in corporate structure or

ownership; such payments are generally expressly unallowable under the

FAR, because there is considered to be no benefit to the Government.

Hawthorne Effect - productivity in a plant or office tends to increase when

there are parties evaluating work processes.

Parking Lot - where ideas and issues are placed until they can be dealt with.


CONTRACTING OFFICER’S

DILEMMA: Scenarios for

Training and Interviews

This series of articles provides

lessons for contracting officers

to share during team-based

training events. They may also

be used by job seekers to

prepare for interviews that will

probe their acquisition knowledge in response to real-

world scenarios.

“Measured in Ink”

You are the contracting officer for a Federal

Acquisition Regulation (FAR) Part 8.4 procurement

for program management services. Your source

selection authority (SSA) has some concerns

regarding the consensus technical evaluation and

wishes to change strengths, weaknesses, and ratings.

How do you advise your SSA?

Solution

In guiding your SSA, it is important to note that any

departure that the Source Selection Decision

Document must have concrete evidence of the

rationale for the changes. Where the SSA disagrees

with the subject matter experts who provided the

technical evaluations, there must be a clear record of

discourse with the evaluators, document review, and

analysis that supports the SSA’s position.

Talk to the Evaluators

For a contracting officer (CO), the world is an

intersection of bright minds. The Federal Acquisition

Regulations describe the ideal behind a role that

facilitates the flow of information between multiple

9 FAR 1.602-2(c).

disciplines and stakeholders. In the words of the

FAR, the CO shall:

“[r]equest and consider the advice of

specialists in audit, law, engineering,

information security, transportation, and

other fields, as appropriate”9

Standing at that intersection, it is the CO’s role to

place the SSA side-by-side with the technical team.

The ensuing conversations should air the issues that

the SSA has discovered with the evaluation.

This dialogue is essential because any consensus

document is going to imperfectly capture the full

rationale behind a technical evaluation. It is essential

to recognize the limitations of documents and to offer

the SSA an opportunity to communicate with the

authors to better understand their reasoning.

The best example is illustrated in a December 4, 2017

decision that sustained a protest by Immersion

Consulting against the Department of Defense’s

Defense Human Resources Activity. In this FAR 8.4

procurement for program management support

services, the SSA disagreed with strengths and

weaknesses that the technical evaluators had assigned

to the two firms in the competition.

The technical evaluation considered three subfactors:

Technical Approach & Methodology

Project Management Plan

Staffing Plan

In a review of the technical evaluation, the SSA

revised the technical evaluation and ratings. The

table that follows shows the initial evaluation, and the

SSA revisions. Note that the protestor’s initial

outcome was a higher technical rating, which

positioned it for potential award in a trade-off

decision. Price was the least important evaluation

factor, but the outcome of the SSA’s revision leveled

both technical quotes, and afforded more prominence

to the $3.3 Million (M) difference in price.


Evaluation Initial Technical

Evaluation SSA Revision

Company Protestor Awardee Protestor Awardee

Strengths 3 2 1 1

Weaknesses 0 1 0 0

Rating Outstanding Acceptable Acceptable Acceptable

Price $14 M $10.7 M - -

The SSA removed two strengths from the protestor,

and one from the awardee. The SSA also removed

one weakness from the awardee. As an example of

the SSA’s reasoning, the record indicated that the

narrative describing the assignment of a strength to

both offerors’ staffing plan subfactor was:

“…too general and did not specify how the

approach exceeded the PWS requirement, what

the impact of the approach was, or how the

approach benefitted the government.”10

The record is silent regarding the removal of the

second strength initially accorded to the protestor.

The SSA also removed a weakness for the awardee,

citing the technical evaluation’s lack of narrative

describing the harm to the Government from the

weakness. Without “convincing detail” regarding

that harm, the SSA stated that there was no

weakness.11

Where the SSA took issue with the technical narrative

as inadequate, there exists a burden on the CO and the

SSA to investigate further. The first step in that

investigation is to facilitate a conversation between

the SSA and the experts providing the evaluation.

Yet, there was no indication that the SSA ever

discussed these concerns with the evaluators.12

Agree to Disagree

The CO and SSA burden does not rest with a direct

inquiry with the technical evaluators. A SSA has

every latitude to disagree with the technical

evaluators, and may reach a decision that reverses

10 Immersion Consulting., B-415155; B-415155.2, December

4, 2017, p. 3. https://www.gao.gov/assets/690/688873.pdf 11 Ibid. 12 Ibid. P. 5.

their evaluations in making the award decision. But

that latitude comes with a burden of diligence and

reasoning that is measured in ink.13

Provide Source Documents, Evidence, & Rationale

Where the SSA wishes to remove a strength or a

weakness, they must provide a record of the

information they reviewed. In the protest decision,

GAO noted:

“There is nothing in the contemporaneous

record or the agency’s filings documenting

what, if anything, the SSA reviewed to support

the SSA’s conclusion…”14

They must also specifically rebut the reasoning

provided by the technical evaluators. The CO cannot

allow the SSA to slip into a mindset where they are a

professor grading the evaluators with notes in the

margin. The SSA is a participant in a fierce debate

about how to spend Government funds. The

protestor’s staffing plan received a strength,

supported by technical evaluation comments that

were specific. They identified the impact of the

approach on the quotation. They detailed the benefits

to the Government. GAO stated that the SSA

unreasonably removed that strength:

“…the SSA’s rationale is not meaningfully

explained in the record and otherwise

appears inconsistent with the

contemporaneous evaluation record and the

solicitation.”15

Therein lies the advice to any SSA that seeks to

depart from the path identified by experts. Speak to

the experts. If there is still disagreement, conduct

research, cite sources, and dedicate ink to the

diligence of a contrary decision. Anything less will

leave the rationale behind the decision hidden and

place the award decision in jeopardy.

13 Ibid. 14 Ibid. 15 Ibid. P. 7.


FAST FIVE:

Questions to

Bolster Your

Immediate Recall

This series of articles provides questions that should

be close-hold knowledge for acquisition

professionals. They are intended to help refresh key

concepts.

Questions

1. A Federal Acquisition Regulation (FAR) Part 15

preaward debriefing may not disclose:

A) The Government’s evaluation of significant

elements in the proposal.

B) The number of offerors.

C) A reasonable summary of the rationale for

eliminating the offeror from the competition.

D) Reasonable responses to relevant questions

about whether the solicitation’s source

selection procedures were followed.

2. Information prohibited from release during a

postaward debriefing under the Freedom of

Information Act (5 U.S.C. 552) does not include:

A) Trade secrets.

B) Privileged or confidential manufacturing

processes and techniques.

C) Commercial and financial information that is

privileged or confidential, including cost

breakdowns, profit, indirect cost rates, and

similar information.

D) The make and model of the item to be

delivered by the successful offeror.

3. FAR 15.508 notes that mistakes in a contractor’s

proposal that are disclosed after award are processed

in accordance with procedures for mistakes in bids

as described at FAR 14.407-4. The Government’s

remedies in that event do not include:

A) Contract modification, if a correction is

favorable to the Government without changing

the essential requirements of the

specifications.

B) Rescind the contract.

C) Reform the contract by increasing the price to

any amount appropriate given market research.

D) Reform the contract by deleting the items

involved.

4. An offeror that does not receive an award, may

request a postaward debriefing if they make a

written request within ____ (days).

A) 3 days.

B) 5 days.

C) 10 days.

D) There is no time limit.

5. Following the receipt of a written request for a

postaward debrief, the Government, to the

maximum extent practicable, should provide the

debriefing within ____ (days).

A) 3 days.

B) 5 days.

C) 10 days.

D) There is no time limit.

Answers

1. B. [FAR 15.505(f)(1)]

2. D. [FAR 15. 506(e)(1)-(4)]

3. C. [FAR 14.407-4(b)(2)(ii) Repricing may not

exceed the next lowest acceptable offer under the

original solicitation.]

4. A. [FAR 15.506(a)(1)]

5. D. [FAR 15.506(a)(2)]


NCMA NOVA NEWS:

Call for Articles

NCMA NOVA News is a

monthly electronic newsletter

for 600+ NOVA Chapter

members. This is a call for

article submissions.

Guidelines for Submissions:

Articles Sought: Submit features, news articles, interviews and editorial ideas that are

of interest to the acquisition community.

Homage: Please include an author’s

biography and photo. While not required for

publication consideration, the biography and

photo provide a basis for the expertise you are

sharing in your article, and both have been

well-received by members as a means of creating a connection with the author.

Word Limits: There is no word limit for

articles. Longer works (i.e., over 2500 words)

are welcome if they may be considered for

serial publication across multiple issues.

Publication Rhythm: The deadline for consideration is the 15th of the month for the

following month’s issue. All authors review

the draft newsletter when NCMA NOVA

chapter officers conduct their review.

Rights: The author/copyright holder must provide NCMA NOVA News with one time,

nonexclusive rights to display, copy, publish,

distribute, and transmit digital or physical

reproductions for the issue or series of issues

in which the article will be presented.

Open to All: NCMA NOVA News is open to

ideas from all sources. Contributors need not

be members of the chapter, or of NCMA.

Send articles or editorial concepts to Brian Baker:

[email protected]

NCMA NOVA GUEST AUTHOR

SPOTLIGHT

We are grateful to the

authors and interviewees

who contributed their time

and expertise to the benefit

of our membership.

Christoph Mlinarchik, Esq., CFCM - February 2016

Issue: Resources for the Contracting Professional

Philip Lee - March 2016 Issue: Kingdomware

Technologies, Inc.: An Overview

Christoph Mlinarchik, Esq., CFCM - April 2016

Issue: Crafting Compelling Contracting

Officer’s Final Decisions

Christoph Mlinarchik, Esq., CFCM - June 2016

Issue: Debriefings

Christoph Mlinarchik, Esq., CFCM - August 2016

Issue: Contract Interpretation

Christoph Mlinarchik, Esq., CFCM - October 2016

Issue: REA vs. Claim

Christoph Mlinarchik, Esq., CFCM - October 2016

Issue: Sources of Authority in Government

Contracting

Philip Lee - January 2017 Issue: Kingdomware:

Reactions Following the Supreme Court’s

Decision

Raymond Natter, Esq. - February 2017 Issue:

Outlawing Volunteers: Congress vs. the President

Johana Reed, Esq. - March 2017 Issue: Top Five Things to Consider When Working With the

Government

Evelyn Stewart - March 2017 Issue: Avoid

Elimination: The Down Select (Part I)

Evelyn Stewart - April 2017 Issue: Avoid

Elimination: The Down Select (Part II)

Joanie Newhart - (Interview) May 2017 Issue: Digital

IT Acquisition Professional: Training Based on

Agile Software Design

https://commons.wikimedia.org/wiki/File:Stipula_fountain_pen.jpg


Tony Munter, Esq. - August 2017 Issue: False

Claims Act: Universal Health Services v. United

States ex rel. Escobar

Corletta Campbell & Jeanne Poovey - September

2017 Issue: CO Forums: An Approach to Agency

Introduction & Implementation

Margaret Brandis- October 2017 Issue: What Does

“Incumbent Capture” Really Mean?

Donald E. Shannon - October 2017 Issue: Agile,

EVM, and the FAR: Learning to Get Along - Part I

Donald E. Shannon - November 2017 Issue: Agile,

EVM, and the FAR: Learning to Get Along - Part II

Adam S. Goldman - November 2017 Issue: Unique

Issues and Open Sources: Practical Methods to

Determining Contractor Responsibility Under FAR 9.1

Leona Charles - December 2017 Issue: Digital IT

FAR Part 49 - Termination of Contracts

Louis Lamanna - (Interview) December 2017 Issue:

The Greater Pittsburgh Chapter: An Interview

With Chapter President Louis Lamanna

NCMA NOVA News issues are posted online:

http://resources.ncmahq.org/chapters/nova/Newsle

tters/Forms/AllItems.aspx

DECEMBER NCMA NOVA CHAPTER ANNIVERSARIES

Member Years

Peter Nagy, Fellow, 35

Jodie Paustian, CPCM, 34

Lester Clark, 33

Brenda Peterson, 32

Richard Smith, 28

Elaine Guth, 23

Harry Shank, 23

Patrick Staresina, 22

Joseph Gaglio, 21

Jolin Yeung, 20

Jennifer Schoen, 20

John Turner, CPCM, 19

Jacquel Tomlin, 17

Kathleen Estep, 16

Raymond White, 12

Dean Kremer, CPCM, 10

Kwanita Brown, 9

Gregory Foley, 9

David Carmichael, 6

Member Years

Daniel Miller, 5

Gail Guseman, 4

Jerry Baah, 3

Jasmine Ennsour, 3

John Stever, 2

Kimberly Oatneal, 2

Allen Cannon, 2

Elizabeth Kellman, 2

Louis Cordova, 2

Elizabeth Meola, 2

Evgeniya Travers, CFCM, 1

Kimberly Keeney, 1

Samuel Levine, 1

James Loba, 1

Mary Beth Colavito, 1

Lakisha Brewer, 1

Tela Mathias, 1

Michelle Pearman, 1

Margaret Butler 1


Chapter Elected Officers

President Eric Crusius, Esq.

President-Elect Joan Kirkwood

Secretary Philip Lee

Treasurer Shuna Ross

Chairs and Advisors Membership & Elections

Chair Joyce Patry

Education & Programs

Chair Tami Nguyen

NOVA News Chair Brian Baker

[email protected]

Chapter Advisor Danielle Grunwald

Chapter Advisor Crystal Glenn

Chapter Advisor William Kirkwood

We’re on the Web! Visit us on:

https://www.facebook.com/NCMANOVA

https://www.linkedin.com/groups/NCMA-NOVA-Chapter-8142710

https://www.twitter.com/NCMA_NOVA


NCMA NOVA Newsletter Staff

Editor Brian Baker

Assistant Editor/Graphics Design Connor Baker

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