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Emptor Cautus

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  1. This will probably be my last mention of the Section 809 panel here, as Bob has created a new discussion category (i.e., Section 809 Panel) in the discussion area. I just wanted to respond to Melissa’s call to action. My eponymous self was already part of the solution, having discussed potential changes with a number of Panel members even before the names of the Panel members became official. And, subsequently, with them and with the Panel's support group. However, responding directly to Melissa’s call to action, I have submitted a recommendation at the Panel's website as Emp
  2. Another set of acquisition reform recommendations come from Jeffrey P. Bialos, Against the Odds: Driving Defense Innovation in a Change-Resistant Ecosystem. These come to us from the Center for Transatlantic Relations, The Paul H. Nitze School of Advanced International Studies, The Johns Hopkins University. Against the Odds is intended to address the issue of the will to change. I was particularly taken by a statement made by the Honorable David Oliver, Jr. in a Special Foreword. I thought that pretty well summed up at least one of the issues associated with achieving successful c
  3. In the 1973 futuristic mystery thriller Soylent Green there’s an exchange between Detective Thorn (Charlton Heston) and Hatcher (Brock Peters): Det. Thorn: Ocean's dying, plankton's dying . . . it's people. Soylent Green is made out of people. They're making our food out of people. Next thing they'll be breeding us like cattle for food. You've gotta tell them. You've gotta tell them! Hatcher: I promise, Tiger. I promise. I'll tell the Exchange. Det. Thorn: You tell everybody. Listen to me, Hatcher. You've gotta tell them! Soylent Green is people! We've got
  4. Had you ever speculated on why April Fools’ Day seems to be such an important day for federal acquisition? After all, consider some of the regulatory and policy issuances on that day: The Federal Acquisition Regulation (FAR) became effective on April Fools’ Day (1984). The Federal Aviation Administration became exempt from the FAR on April Fools’ Day (1996). The Office of Federal Procurement Policy (OFPP) memorandum on “Protests, Claims, and Alternative Dispute Resolution (ADR) as Factors in Past Performance and Source Selection Decisions” was issued on Ap
  5. This post is not really so much about misunderstanding the missing words, but the misunderstanding that is created by the missing words when read or hear "All contractors must be treated the same" or "All offerors must be treated equally", or such similar sentences. It is the part that should come after, but in many cases does not, that concerns me. In the GAO Bid Protest Annual Report to Congress for Fiscal Year 2014 (B-158766, GAO-15-256SP), November 18, 2014, Susan A. Poling, General Counsel of Government Accountability Office, wrote: [Well, at least she signed. Keep in mind that Washin
  6. Federal Acquisition Circular (FAC) 2005-73, effective May 29, 2013, eliminated the Truth in Negotiations Act (TINA). Now that I have your attention, the FAC did not eliminate the TINA. What the FAC did was to rename The TINA “Truthful Cost or Pricing Data”. This was just one of a number of changes to the Federal Acquisition Regulation (FAR) that resulted from positive law codifications. Let’s discuss positive law codification of Public Laws 107-217 and 111-350 which were recently incorporated into the Federal Acquisition Regulation (FAR) at FAR 1.110. The former was revised, codified, and
  7. Experience is the teacher of all things. ― Julius Caesar, Commentarii de Bello Civili (Commentaries on the Civil War), (c. 52 B.C.). In a previous Blog, I said: What am I suggesting by that? In acquisitions exceeding the simplified acquisition threshold past performance shall be evaluated, unless waived by the contracting officer. (FAR 15.304( c )(3). In addition to, and separate from, past performance the source selection should evaluate “Experience.” Past performance deals with how well an offeror has performed prior efforts. Experience deals with whether the offeror has performed su
  8. Trust me, my tongue was not in my cheek when I suggested that past performance information be ignored. Let me provide some background. I was invited to visit the group responsible for the FAR Part 15 Rewrite to discuss the “Neutral” issue, and a number of other comments that I had made in a series of public comments. The group made the change from “neutral” to “may not be evaluated favorably or unfavorably on past performance.” We discussed the ways to achieve that result. I addressed one in my original Blog entry, which appears to have created some consternation. There is another way
  9. Interestingly enough, the FAR defines neither "Past Performance" nor "Past Performance Information". However, in the discussion of past performance evaluation, under the overall topic of proposal evaluation, FAR 15.305(a)(2) lays out the type of information that can be considered. For instance, FAR 15.305(a)(2)(ii) states, in part: That coverage, alone, gives fairly broad leeway. However, when combined with FAR 15.305(a)(2)(iii), there is much more: As the old joke goes, "There has to be a pony in there somewhere." But, there is always the potential that an offeror may have no relevant p
  10. BLUF: No. Or, just maybe, it depends. [For those of you who are unfamiliar with BLUF, it stands for “Bottom Line Up Front”. If you’re required to give presentations to high ranking officials on a repetitive basis, you learn their foibles. Some will listen patiently to your entire presentation, no matter how tedious. Others always jump to the Conclusion slide, just so they’ll know what’s coming. For the latter, we would put the conclusion on the first slide after the title slide to save time. But, you can’t really call it the Conclusion at that point, so it becomes BLUF.] In a previous B
  11. I had said that I wasn't going to look for an older version of the Chart, and I kept my word. However, while searching for a vintage document on multi-year contracting, I stumbled across an older version, June 1977. That particular version, Types of Contracts (A Comparison and Summary), was published by the Department of Procurement and Production, Air Force Institute of Technology (AFIT). In addition to contract types, there are "Other Contractual Devices (Special Uses)," which includes Letter Contracts and Indefinite Delivery. On this Chart, there are four rows of information (i.e., Appl
  12. Remember the old TV commercials for toys that began, “Be the first on your block . . . ,” and then inserted the name of some new toy, doll, gun or game? Well, you can forget about that in this case. For those of you who have not already done so, I’m recommending that you consider downloading a document that has already been downloaded more than fifty thousand times since published on the web, and nearly four thousand times since it was last updated in January 2014. [As of today, the precise numbers were 52440 for Lifetime Activity and 3786 for Activity for the Last 90 Days. This is a very
  13. joel hoffman points out that the term "Procuring Contracting Officer" is defined in the DAU Glossary, and appears in the DFARS Procedures, Guidance and Information (PGI), and in other publications. Actually, in the latest edition of the Glossary, the Fifteenth Edition, the term that is defined is "'Procuring' Contracting Officer." The subtle difference is that the Defense Acquisition University has caught on to the need to put quotation marks around the word "Procuring," as it is not the standard term. Additionally, I would suggest you all take a look at the new Disclaimer that appears on p
  14. I am afraid that the confusion KO2BE suffered from was the result of the failure of the instructor to properly distinguish "cost or pricing data" from "data other than cost or pricing data." The definitions, by the way, are actually relatively new, probably having entered federal Government service about the same time as KO2BE, October 1, 2010. That change to the FAR was six years and twenty-three days in the making. It was highly controversial with industry. I remember attending the special public session that was held on the change, where several industry speakers rose to the microphone
  15. The Federal Acquisition Regulation (FAR) is part of 48 CFR, arguably the most important part. The FAR is codified at 48 CFR Chapter 1. The focus of the blog posting is to point out that people in our acquisition business routinely use a number of terms as if they are in the FAR, when they are not, essentially ignoring the actual FAR terms. I suspect that in many cases the people who use the terms believe them to be in the FAR. There are many such terms. As apsofacto points out, "best and final offers" (BAFO) is another example, appearing in two rogue instances (i.e., FAR 22.404-2( b )(5) a
  16. In acquisition we have a tendency to use a number of “nonexistent" words and terms. Well, that might be overstating the issue somewhat, so let’s try again. In acquisition we have a tendency to use a number of terms that are not defined in the Federal Acquisition Regulation (FAR), but are in the FAR. I have no particular problem with that. However, I do have a wee bit of a problem when people in our business use terms as if they were in the FAR, even though they are not there. My concern is compounded by the fact that the people who use the terms don’t even realize that they are not in the
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