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Vern Edwards

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Everything posted by Vern Edwards

  1. Vern Edwards

    Consideration in exchange NCE?

    See Aviation Contractor Employees, Inc. v. U.S., 945 F.2d 1568, 1573 (Fed. Cir., 1991):
  2. Vern Edwards

    Consideration in exchange NCE?

    You might point out to your director that if the contracting officer signs an extension mod without obtaining adequate consideration the contracting officer's boss, the boss's boss, or a new contracting officer could refuse to honor the extension after the fact on the grounds that the contracting officer who signed the mod did so without proper authority.
  3. Vern Edwards

    Consideration in exchange NCE?

    The FAR states no such requirement. The requirement for consideration is a requirement of the American common law of contracts. See Restatement of the Law, Second, Contracts, Chapter 4, Topic 1, The Requirement of Consideration. See also Administration of Government Contracts, 5th ed., by Cibinic et al., p. 11.
  4. I say again: The user. The fact that the government as a whole has multiple and conflicting objectives does not change the answer to the question you asked. When you lose focus on the party that you're working for, you've lost everything. That does not mean that you cannot establish production metrics, just that you cannot let them get in the way of the mission.
  5. Vern Edwards

    Use of 52.217-9 to extend IDIQ Ordering Period

    Come on, ji. Why make such needlessly broad assertions? A FAR text's "meaning" can be changed for an agency by that agency's supp. That's one of the reasons for issuing a supp, to deviate from the FAR.
  6. Vern Edwards

    Use of 52.217-9 to extend IDIQ Ordering Period

    So what you meant by your earlier remarks was that the original authors of FAR Subpart 17.2, which was written in the mid-1980s, were not thinking of options to extend the ordering period of task and delivery order contracts, because there were no such things when those rules were written. You did not mean that FAR Subpart 17.2 does not now apply to such options, but that COs must apply it thoughtfully. Thank you. However, I disagree that DFARS supplementation of the FAR proves nothing about the text of the FAR. The DFARS supplementation of FAR 17.204(e) explicitly interprets the text of the FAR for DOD personnel.
  7. Vern Edwards

    Use of 52.217-9 to extend IDIQ Ordering Period

    @ji20874 Please prove the truth of those statements. I ask you to do this because FAR 17.200 provides as follows: I don't see anything in that scope statement or anywhere else that says FAR Subpart 17.2 applies only to options for the purchase of supplies and services. Moreover, DFARS 217.204 states, in part: If FAR 17.2 does not apply to options to extend ordering periods, why does DFARS address that matter in 217.204? I'm not saying that you're wrong. I'm saying that I don't understand how you reached the conclusion that FAR Subpart 17.4 does not apply to options to extend an ordering period. Moreover, doesn't an ordering period bear on the matter of purchasing supplies and services? Are you making a distinction between "applies to" and "written for"?
  8. What I would or would not write would depend on the nature of the requirement for which the contract is to be written and my acquisition objectives. What I see at Wifcon is people saying all kinds of things, much of it badly muddled. I don't get your point.
  9. Vern Edwards

    MIL-STD-130 Assistance

    At this point I think we should stop trying to help. However... If the goal is to prompt the CO to act, it might work. If the goal is to legally indemnify yourself, it might not. Either way, send it by USPS certified mail, return receipt requested; Federal Express; and email---just to show you're serious.
  10. I hope that any beginners reading this thread will realize that FAR Part 16 does not describe pricing arrangements that are cast in iron or stone. FAR 16.202 leaves a lot of room for customizing in order to meet specific needs. A little study of actual practice will show that there have been many legitimate and sound varieties of firm-fixed-priced contracts. eagertoshare thought that if the contract required the contractor to complete a job, then the contractor should be paid for performance, and not on the basis of labor input. He never described the nature of the job, so we don't know what he was talking about. In some cases, labor input might be a crucial factor and you would only want to pay the FFP if the contractor put in at least a certain amount of labor input.
  11. @ji20874 Yes. They can. The issue in this thread is not the pricing arrangement. It never has been. The issue has been the billing arrangement and the remedy for nonperformance.It took eagertoshare several posts to get down to his issue, but it appears to have boiled down to this: In response to which, I said: I can write an FFP LOE contract requiring performance of a service for a number of hours per day for a specified price and require billing and payment on the basis of the actual hours worked. That would simply be a way of saying that if the contractor does not provide the specified level of effort the remedy (resolution, if you prefer) is to pay the contractor for only the level of effort that it did provide. Alternatively, I could say that if the contractor doesn't provide the specified level of effort the remedy will be to pay nothing and T for D. The former arrangement is kinder and gentler. There is no one right form of FFP, and the billing/remedy/resolution arrangement does not change the contract type from FFP to something else. All FFP means is (a) that we agree to a specific amount for performance that conforms to the terms of the contract and (b) that the price does not change based on what it cost the contractor to perform. Forty years ago I was writing FFP LOE contracts that said that if the contractor delivered within +/- 5 percent of the required LOE there would be no price adjustment, otherwise there would.
  12. A perfectly legitimate form of contract. You must post a guard at the entrance to Bldg 205, from 0700 until 1500, Monday through Friday. You must post a fire watchman outside Bldg 212, from 2200 until 0600, Monday through Friday.
  13. napolik is too kind. Here's how I put it in an article in 2013: 27 NO. 7 Nash & Cibinic Rep. ¶ 34 Here's how the GAO described an FSS BPA in an early decision, OMNIPLEX World Services Corp., B-291195, November 6, 2002: Omniplex World Servs. Corp., B-291105 (Nov. 6, 2002) Recognizing that the use of the term BPA in connection with FSS contracts would cause some confusion (It's a simplified acquisition! No! It's an FSS order!), the FAR councils added 13.303-2(c)(3) in 1997. Except for that one sentence, there is no connection between FAR 8.405-3 and 13.303.
  14. Vern Edwards

    MIL-STD-130 Assistance

    @paris_tj What you have is a situation in which you have contracted to provide something based on an old drawing. The government's QA people may not be intimately familiar with the drawing or with MIL-STD-130. Moreover, the current version of MIL-STD-130, revision N change 1, incorporates a large number of documents by reference. See Section 2, Applicable Documents. Those documents apply to your work to some extent. You need help that we cannot provide. My advice is that you have a sit-down or conference call with the CO and the CO's QA person and decide among you what to do. And you'd better do it NOW, before you are at risk of late delivery. Good luck to you.
  15. Vern Edwards

    MIL-STD-130 Assistance

    Let's work this through. The current version of the military standard is Revision N, Change 1, which is dated 16 Nov 2012, which was almost surely before the award of your contract. Right? The drawing you have appears to predate the current version. Is that correct? Apparently, the marking method specified on the drawing will not work. Is that correct? If so, then the very first thing to do is write to the contracting officer, tell him or her what you have determined in that regard and request instructions by a specified date. Have you done that?
  16. Vern Edwards

    MIL-STD-130 Assistance

    @paris_tj You say "the drawing that has these specs are on" does not reference a version. The current version of MIL-STD-130 is a 54-page long document. Do you have such a document or only a drawing of the item you are making that references it?
  17. That's a stupid question that's been asked once too often. READ FAR 1.102-2(a)(1)! The USER is the person to whom outcomes matter. Users don't give a damn about 1102 "production metrics." American infantrymen want a rifle that works reliably, and they want it when and where they need it. And the logistics officers who support them want it at a price that allows them to buy enough rifles and ammunition. In short, a CO's job is to buy what the user needs. The user determines the need. The CO procures it. What matters to the user is whether it gets what it wants. I really hope you don't ask that question again. Contracting personnel in my day knew that outcomes matter to the users of the things we bought, and we knew that we worked for the users.
  18. Vern Edwards

    MIL-STD-130 Assistance

    @paris_tj The current version of MIL-STD-130 is revision N (MIL-STD-130N) and is dated 17 Dec 2007. There has been one change, dated 16 Nov 2012. Is that the version cited in your contract? Which version do you have? You can get it here: http://quicksearch.dla.mil/qsDocDetails.aspx?ident_number=35521 Get it. Read it. See if that answers your questions. If not, contact the contracting officer or the contracting officer's technical representative and ask them for instructions.
  19. From FAR 52.219-9(d) Are "assurances" promises? Is "identifying" a small business concern the same as promising to hire that concern? Does the written explanation have to meet any particular standard of explanation? And what is a contracting officer to do if he or she is not satisfied with the written explanation. Demand that the prime hire a particular sub? And if the prime accedes to the demand under threat of liquidated damages, what if the sub defaults? Is a sub under a prime contract that contains this clause a third-party beneficiary? It's all nonsense, written by people elected to Congress who have little but nonsense in their heads.
  20. Vern Edwards

    ISO: Michael Golden Article

    No, but I have other means of access.
  21. Vern Edwards

    ISO: Michael Golden Article

    I can no longer find Mike's earlier article. He was with Baker Botts LLP in DC and died in 2014. Call the firm and ask them if they can provide you with a copy of the article.
  22. Sign and get paid less than expected. Sue them.
  23. See the final rule that changed FAR 52.219-9, 81 FR 45833, 45838, July 14, 2016, Comment 11 and response: Emphasis added.
  24. Vern Edwards

    ISO: Michael Golden Article

    Try this link: https://www.law360.com/articles/540136/gao-s-close-at-hand-doctrine-in-light-of-triad-decision You have to be registered at Law360 to access.
  25. Vern Edwards

    ISO: Michael Golden Article

    http://www.bakerbotts.com/news/2014/05/law360-gaos-close-at-hand-doctrine-in-light-of-t__
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