Ron Vogt on
Friday, September 08, 2000 - 06:04 pm:
Sometime within the past year or so, there was a case
involving dam maintenance. The issue was whether the contractor
was breaching the contract by providing fewer than the number of
people proposed, despite accomplishing the work. The court (or
board) ruled in favor of the contractor.
Does anyone remember this case and have a cite to it? I am
looking into a similar issue involving # of people proposed.
on Sunday, September 10, 2000 - 09:24 am:
Do you remember what legal forum it was in or anything else
about it? I browsed through about 60-70 of 100 ASBCA hits with
keyword "maintenance", without success. Keyword "dam" didn't
identify any cases.
Your situation will probably also depend on the facts
surrounding your contract formation and negotiations.
Ramon Jackson on Sunday, September 10, 2000 - 12:32 pm:
I remember running across a case with similar circumstances
while chasing one of the discussion items. It had to have been
an earlier case as it was some time back, probably in the old
WC. If I recall, it went into issues of whether the contract's
wording bought the result, the maintenance, or the bodies,
people. I think there was, as too often the case, some confusion
in the requirement's wording on just what it was buying.
I haven't been able to relocate the item in a brief search, but
will look some more.
I found it interesting and diverted from the chase at the time
because it got into a pet issue of logical determination of what
the government really needs to buy and problems resulting from
confused thinking on that subject. All too many requirements
seem muddied on the subject and result in these disputes.
Another interesting diversion popped up in that quick search. I
don't have time to find if it is a regular thing and it is
likely linked from Bob's main site, but
American University Law Review August, 1997 reviews the
cases concerning government contracts in 1996 decided before the
United States Court of Appeals for the Federal Circuit with some
on Sunday, September 10, 2000 - 11:40 pm:
The case was Omni Corporation v. U.S., U.S. Court of
Federal Claims No. 96-86C, 41 Fed. Cl. 585, Aug. 20, 1998.
From the digest: "Contractor which entered into firm-fixed-price
contract for the operation and maintenance of two
government-owned locks and dams filed complaint seeking recovery
of monies withheld by the government for failure to staff
equipment mechanic positions during certain periods. On
cross-motions for summary judgment, the Court of Federal Claims,
Futey, J., held that contract did not require that contractor
staff each lock and dam with a full-time equipment mechanic, and
thus it was improper for the government to reduce the contract
price and withhold monies from contractor for periods during
which equipment mechanic positions were vacant."
In the text of the decision the judge points out that the
government did not assert that there were deficiencies in any of
the services and that even if the contract had required the
contractor to provide the mechanics the government had not shown
that it had suffered any damages.
Ron Vogt on
Monday, September 11, 2000 - 02:00 pm:
As usual, Vern comes through.
This was the case that I remembered reading, but neglected to
save. The subscription service we use here failed to come up
with it on a search.
The case is interesting in its discussion of the effect of
incorporating a technical proposal into the contract. Since the
government typically does this, both sides could benefit from
on Monday, September 11, 2000 - 02:56 pm:
Allow me to suggest that Omni is not so much about
incorporating proposals into contracts as it is about writing
what you mean and being able to read and understand what you
have written. In Omni, a contracting officer and five
government lawyers managed to show to the world that they are
fundamentally incompetent to write, interpret, and administer
contracts. The case is embarrassing.
on Monday, September 11, 2000 - 06:14 pm:
This was a poorly executed attempt to mix prescriptive and
performance specifications. The Government did not establish a
minimum staffing requirement in its RFP or contract. It tied
adequacy of staffing to "successful performance" and could not
establish any deficiency in actual performance. Happy Sails!
Ron Vogt on
Monday, September 11, 2000 - 09:02 pm:
Joel and Vern,
You are correct that the primary issue is contract
interpretation. Part of the court's analysis was in the
interpretation of the incorporation language, and that's the
part I was interested in. I think the court agreed that had the
contractor actually proposed a higher level of service, as
opposed to just staffing, then those proposed capabilities would
have become contract requirements. In the alternative, had the
solicitation called for certain staffing levels and the
contractor proposed a minimum level, I believe the court would
have held that there was deficient performance.
My interest right now is in how an "incorporated" proposal will
get interpreted, and this case helps in that analysis. It can be
a complicated issue, because proposals are often filled with
promises that exceed solicitation requirements, or that promise
certain approaches to the work. This case shows that a
proposal's promises must be related to contract requirements
before they become additional binding requirements.
Ramon Jackson on Monday, September 11, 2000 - 11:38 pm:
Ron, I believe you are opening one of Vern's favorite issues:
promises (offer) vs. proposal. There was quite a bit about the
problems resulting from confusion in this area on the old Water
This is an area that needs to be dealt with repeatedly,
particularly when people start talking about incorporating
proposals. It needs to go all the way back to the requirements
documents. What are we asking for? Keep the car in excellent
running shape or deliver in accord with our (often non expert)
estimate that to do so requires two mechanics on the job?
It is really not amusing (despite wry grins) to hear the same
managers who forced confusion and demanded a particular staffing
level vice performance criteria do an about face and howl about
contractor people "standing around."
Ron Vogt on
Tuesday, September 12, 2000 - 01:09 pm:
I vaguely recall that discussion. Is it in the archived site,
or was it pre-2000? I am interested in reading it because I am
looking at another issue involving the distinction (if any)
between a proposal and an offer.
on Tuesday, September 12, 2000 - 02:03 pm:
If you have access to the Pentagon Library, you can find back
issues of the Cibinic and Nash Report. They go on at some length
on this topic.
You should be warned that most of this takes the form:
"This is simple and self-evidently correct, and we can't
understand why the policy makers in the Government don't listen
In short, this is personal opinion, not policy.
on Tuesday, September 12, 2000 - 02:28 pm:
I can summarize my position for you:
The essential elements of a contract are offer, acceptance, and
FAR 2.101 defines offer as "a response to a solicitation that,
if accepted, would bind the offeror to perform the resultant
contract." It goes on to say that in negotiated procurement an
offer is called a "proposal." This raises a question: What kind
of response, if accepted, would bind the offeror? The answer is:
a response that promises to do or refrain from doing something.
In most instances, an offer is a promise. (Restatement,
Second, Contracts § 24, Comment a.) A promise is "a
manifestation of intention to act or refrain from acting in a
specified way, so made as to justify a promisee in understanding
that a commitment has been made." (Restatement, Second,
Contracts § 2(1).)
However, despite FAR 2.101 and the principles of American
contract law, FAR Part 15 uses the word "proposal" to include
all statements made by offerors: promises, statements of fact,
and statements of opinion (analyses, estimates, predictions,
etc.). For example, offerors are often required to include past
performance information in their proposals. Past performance
information usually consists of statements of fact and opinion.
Such statements are not promissory in nature. Offerors are often
required to submit a "cost breakdown" of their proposed prices.
Such breakdowns are estimates, not promises.
Only promises are binding upon acceptance. This is a fundamental
tenet of American contract law.
I have argued on many occasions that FAR Part 15 should be
changed to make it clear that a proposal consists of an offer
(promises) and other statements, and that only the offer is
binding upon acceptance. I have long taught my students that
when they write their RFPs they should provide separate
instructions for the preparation of (1) the offer and (2) the
other information that they want the offerors to submit.
However, most COs write instructions for the preparation of
"technical" and "management" proposals without thinking about
the kinds of statements that they are asking the offerors to
make and whether those statements would be promises or merely
plans (which are statements of contingent intention, not firm
commitments) or statements of policy.
This discussion would not have helped the contracting officer
and government lawyers in Omni, because they simply
couldn't read their own contract language.
on Tuesday, September 12, 2000 - 04:20 pm:
I'm always amused when someone takes a potshot at Nash and
Cibinic. Some Federal officials find them to be very persuasive.
If you want a case about incorporating proposals into contracts
you should look up Ferguson-Williams, Inc., ENGBCA No.
6482, Dec. 29, 1999. That case is about a dispute between the
Corps of Engineers and the contractor over whether the
contractor could apply G&A to certain materials purchased for
performance. The Corps' RFP included a clause that prohibited
application of G&A to such materials, but the contractor had
said in its cost "proposal" that it would, in fact, apply G&A to
The Corps awarded the contract without discussions and the
contractor included G&A in its invoices. The Corps CO denied the
request for G&A and the contractor appealed, claiming, among
other things, that the cost proposal was a part of the contract.
The Corps of Engineers Board of Contract Appeals denied the
appeal. In doing so, it held that the cost "proposal" was not a
part of the contract, stating:
"The backup cost and financial information supporting proposed
prices are generally not incorporated into negotiated contracts.
See Bums and Roe, Inc., EBCA No. 102-11-79, 81-2 BCA P 15,386.
See also the general discussion covering this point in Ralph
Nash, 'The Status of Technical, Management, and Cost Proposals:
Are They Part of A Negotiated Contract,' 7 Nash & Cibinic Report
¶ 37 (1993). This conclusion follows directly from the
language of FAR 52.215-16, 'Contract Award.'"
So, Ron, as you can see, Nash and Cibinic manage to influence
some people -- like board judges. Their personal opinions carry
weight. One way to check their influence is to search Federal
court and board decisions to see how many times the judges have
cited Nash and Cibinic as authority.
By the way, in addition to failing to acknowledge a "simple and
self-evidently correct" fact of American law, the FAR Council,
in writing the FAR Part 15 Rewrite, managed to delete the
protective language that had appeared in FAR 52,215-16 and that
helped the Corp win this case. Now, COs who are ignorant of the
difference between offers and other statements in proposals may
not be protected.
Of course, this case never would have reached the board had the
Corps' RFP made a clear distinction between the offers and the
other statements in the proposals.
on Tuesday, September 12, 2000 - 05:06 pm:
One need only read enough Board and Court cases, referring to
"Nash and Cibinic", to see that their "personal opinion"(s),
while not always "policy", seem pretty persuasive! Happy Sails!
Ron Vogt on
Tuesday, September 12, 2000 - 05:14 pm:
We appear to have exhausted the dam discussion at this point
(no pun intended) (oh all right, it is), and are now discussing
the incorporation of proposals. I just noticed that a new
discussion has opened up in a folder entitled "Incorporating
Proposals," and I suggest we move over to there. I have some
thoughts on it, and I suspect that others are not done either.
on Tuesday, September 12, 2000 - 10:00 pm:
You get right defensive and worked up.
That wasn’t a pot shot. It was exact.
I said that your argument takes the form, “we can't understand
why the policy makers in the Government don't listen to us," and
you went right ahead illustrating my point.
You evidently have an attitude toward the Part 15 Rewrite. I
don’t share it.
Every so often, someone will argue that a policy is good because
it allowed the Government to win a few dollars in a squabble
with a contractor. In my opinion, that is a very poor basis for
policy. Good policy minimizes the opportunities for petty
on Tuesday, September 12, 2000 - 10:47 pm:
There was nothing exact about what you wrote concerning the Nash
& Cibinic Report. You didn't even get the name of the
publication right. Your comment was a potshot, and you know it.
You dismissed detailed explanations of considered opinions with
the insult, "You should be warned that most of this takes the
form: 'This is simple and self-evidently correct, and we can't
understand why the policy makers in the Government don't listen
Those two men have made cogent arguments in support of their
positions, and you have never cogently addressed yourself to
them. And you haven't addressed yourself to the one that I
summarized for Ron. You don't seem capable of logical analysis
and counterargument on the basis of premises and conclusions.
With regard to the FAR Part 15 Rewrite, I have concluded that it
is poorly written, and that the poor writing reflects poor
thinking. I gave reasons for this conclusion many times at the
old Water-Cooler and Open Forum.
I agree that good policy minimizes the opportunities for
squabbles, that is why Nash, Cibinic, and I advocate clearing up
the prevailing confusion about proposals and offers, which was
made evident in the Ferguson-Williams decision and others.
It is one thing to disagree with someone on rational grounds. It
is another thing entirely to insult two fine men who have made
and continue to make very great contributions to our profession
by dismissing their work as mere egotism. They are friends of
mine and I won't stand for it.
on Wednesday, September 13, 2000 - 09:03 am:
Bob has done an excellent job in establishing this site. Please
don't run it down because of petty differences of opinion.
Please keep the discussions on a professional basis and
eliminate the "mud-slinging". I enjoy this forum and reading
people's opinions, but would like to see it remain informative.
I agree with comments you and Eric both make from time to time,
but I also disagree with some of those opinions. Lt's keep it
professional and not get personal. Thanks
on Wednesday, September 13, 2000 - 10:11 pm:
I see nothing in my posting that I would characterize as either
insult or mud slinging. What I characterized as opinion IS
opinion and IS NOT policy.
I hope I haven’t insulted anyone intentionally or otherwise. I
would recommend the Nash and Cibinic Report to anyone. Further,
their authoritative texts have on several occasions provided
invaluable help to me.
(And, I am well aware that Cibinic and Nash are cited by judges.
In fact, when I was very recently tasked to research a
significant issue, I started with the CCH (the old hard copy)
which led me to a case, in which the judge cited Cibinic and
Nash, which led me back to one of their books; which is where I
should have started in the first place. )
Vern, and sometimes his colleagues, adopt a dismissive tone when
they talk about policy makers in the Government. I would rather
that they didn’t.
And yes, they sometimes just flat out make mistakes. I have
always assumed that Vern’s senior colleagues have the maturity
and good sense to double check their research, check the current
case law, then make revisions where necessary.
You need to read the newsletters, I don’t question that Nash and
Cibinic have the standing to question policy decisions that they
don’t agree with. They do it in a gentlemanly fashion.
If it is the habit in this forum to characterize mere
disagreement as “mudslinging” or insult, we will have a very
hard time discussing issues in an objective fashion.
Further, when we don’t distinguish our personal opinions,
however authoritative, from policy, we risk misleading our less
Incidentally, I would not characterize the underlying issue as
You can stand, sit or do whatever you want. If my
characterization were not correct you could have made your point
by providing better facts. The fact that you went off into the
ad hominum speaks for itself.
I haven’t insulted your friends, intentionally or otherwise, and
I wouldn’t wish to.
on Wednesday, September 13, 2000 - 11:37 pm:
Anonymous, et al.:
I agree with Eric that our comments did not amount to
"mudslinging." Actually, our give and take is relatively mild by
normal academic standards. Read the letters in The New York
Review of Books sometime. Nevertheless, I'm sorry if you and
others were upset by the tone of our exchange. I'm sure that if
Bob thinks we're getting out of hand he will moderate his site
There was nothing correct about what you said in any of your
last three postings, and I have provided excellent facts in
refutation of your derisive attack on two good men and arguments
in support of the proposal/offer debate.
Your comments about Ralph and John were insulting. Not the part
about their arguments being merely a matter of personal opinion,
but the part about their arguments amounting to nothing more
than: "This is simple and self-evidently correct, and we can't
understand why the policy makers in the Government don't listen
to us." They have made detailed and well-reasoned arguments. All
you have had to say is that if it's in the FAR Part 15 Rewrite,
then it's good enough for you the way it is.
I did not make an ad hominem attack on you when I responded to
your insulting comment. I never even mentioned your name, much
less said anything about you. Rather, I defended my friends and
colleagues by providing a documented example of the high regard
in which they are held by Federal officials and the influence
that they have had on Federal contracting. Indeed, it was you
who addressed me directly and made personal comments.
Those of us who try to take reasoned positions and then publish
them for the world to read and consider ask at least fair
consideration and reasoned criticism. I don't mind an attack on
my premises and conclusions, neither do Ralph and John. Indeed,
they and I welcome those kinds of attacks, even harsh ones.
We're trying to engage peoples' minds.
But your kind of attack -- accusing two fine professionals of
basing their arguments on nothing more than egotism -- is, well,
the mildest thing that I can call it is crude. (I held back for
you, Anonymous. I had something much harsher in mind.)
If you were intellectually able and courageous you would write a
letter to The Nash and Cibinic Report, or an article for
Contract Management magazine, or an article for Bob to
publish at Wifcon, taking Ralph and John on in reasoned debate,
instead of sniping at them in this forum. Ralph and John would
gladly publish your letters in their Report. Of course,
they will respond, perhaps harshly. John once called something I
wrote "balderdash"! (I got lots of phone calls about that one. I
couldn't tell what my friends were saying, they were laughing so
hard.) Of course, I wrote him back and gave him hell for it. He
published that, too. Well, as they say on the ranch, "Don't get
on that horse if you're scared to get bucked off. Stay home and
feed the chickens." Go on, Eric, write to them. Tell them what
you think their argument amounts to. Get on that horse.
You know what was in your heart when you wrote what you did
about Ralph and John. You know it and I know it.
bob antonio on
Thursday, September 14, 2000 - 06:04 am:
Anonymous, Eric, and Vern:
As always, I agree with each of you. I have an idea for you to
consider. Understanding that intellectual exercise includes
disagreement and exploration of each others' positions, would it
make sense to add a new topic for extended discussions about
each others' positions? This may make sense when the discussion
takes a turn from the original discussion and becomes heated.
How about if we have a topic called "The Battleground" or
something else where disagreements over positions can be
discussed and argued. I will add that to the "Propose a Topic"
area and hope you all add your thoughts to that idea.
on Thursday, September 14, 2000 - 07:29 am:
What I said was, “They go on at some length…” and “… most of
this takes the form:”
You took it upon yourself to interject “amounting to nothing
more than.” I meant nothing of the sort. I wouldn’t send someone
to the Pentagon library to dig up back issues for the purpose of
reading something that was not “detailed and well-reasoned.”
You also interjected this business about “mere egotism.” I said
nothing of the sort. I believe their arguments are substantive
and merit serious consideration.
As for the ad hominem may I quote, “Your comment was a potshot…
You don't seem capable of logical analysis and counterargument
on the basis of premises and conclusions.”
If that wasn’t a personal attack, may I ask what would qualify?
How about, “Punch and Judy Show,” or “Mud Wrestling Pit?”
It’s a thought. People who write to me direct say they enjoy me
and Vern but they hesitate to participate because the dialogue
is at such a “high level.”
I am flattered and baffled. I much prefer talking to motor
sergeants over debating with lawyers and academics. That’s about
the level I intend.
Maybe you should just tag the thread with the word
“Controversy.” Also, it is a good practice to break off and
continue with a separate thread when the thread can get
bob antonio on
Thursday, September 14, 2000 - 07:51 am:
Personally, I enjoy both you and Vern. However, my personal
opinion is that of a fellow user. I also realize that new users
increase the vitality of this thread. My goal is to get as many
users as possible to this forum from industry, academia, and
government. To do that, I must attract them in some manner. A
very small percent of users will interact with an internet site.
So, I need everyone's help to improve this forum and increase
participation in it. Any suggestions are important to me and to
The more users we get to this forum the more we can do with it.
We have heads of several contracting activities either reading
or posting to this forum. We also have contractors, legal firms,
writers, educators, etc. either reading or posting here. We are
off to a good start and we started with a good base of
I honestly view this as our page--not mine--I have about 700
other pages. So it is up to us to make this the best it can be.
on Thursday, September 14, 2000 - 08:45 am:
I won't post again with respect to this issue. You are right,
the undelying issue certainly isn't "petty", but your bickering
certainly detracts from that issue. I'm sorry you took it so
personally and decided to continue.
Vern Edwards on Thursday, September 14, 2000 - 09:26 am:
Peace be with us.