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Vern Edwards

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Everything posted by Vern Edwards

  1. Multiple Award Schedule

    Yes, I know. Read the contract. I'm not being sarcastic. That's the only way to determine which clauses flow to the order level, especially if the contract provides for issuance of orders with different pricing schemes. Sorry. There is no easy answer. FAR 52.216-18 has to be interpreted an applied in context.
  2. Problem of the Day

    Although Don did not reveal it in his original post, his problem, in the abstract, poses this issue: What should a CO do if the FAR commands that something be done, or not be done, and the CO thinks that to obey the command would entail a violation of statute? Thus, in the particular case, if the acquisition would be valued at or below the SAT, but the CO thinks that obeying the absolute prohibition at FAR 15.403-1(a) by not requiring the submission of certified cost or pricing would violate FAR 15.403-4 and the statutes that command the CO to require submission of certified cost or pricing data, should the CO go ahead and require the submission of certified cost or pricing data? Yes or no? I do not think that a CO is empowered to interpret a statute and violate FAR if he or she thinks that FAR violates the statute. I think that violating FAR 15.403-1(a), a long-standing regulation promulgated in accordance with 41 USC § 1707, and which has not been invalidated by any tribunal, would be a FAR deviation . The CO would have to obtain approval to deviate before requiring the submission of certified cost or pricing data at or below the SAT. And keep in mind that the definition of the SAT is statutory. Don's poll asked for a yes or no answer. It was not multiple choice, and it did not provide for conditional answers. I think the only proper answer is No. By the way, to the best of my recollection, Alberici did not declare the Disputes clause or FAR 33.208 to be invalid. It interpreted the statute with no discussion of the clause or the FAR rule.
  3. Problem of the Day

    I've answered your poll question and explained my answer. That's all the answer and explanation I'm going to give.
  4. Problem of the Day

    Why do I have to explain? Don brought it up! I knew this would happen if I answered his question. Okay, Retread has quoted the statute. Now, here's FAR 33.208: See the issue? If a CO complies with that, has she complied with the statute?
  5. How can we speed up the source selection process?

    Perhaps you did. I didn't say that you broke any rules.
  6. One of the new Defense under-secretaries has said she wants to speed up the source selection process under FAR Part 15 so that it takes less than one year. If we define the source selection process as beginning with the start of RFP preparation (not with release of the RFP) and ending with contract award, how can DOD (and other agencies) speed it up without changes in current statutes and regulations? Under FAR Part 15, not 8.4, 13, or 16.5. Let's not quarrel about when source selection starts and ends or whether the goal is worthwhile. I have set the problem. This is an exercise in thinking about means and methods. Let's brainstorm, so no critiques.
  7. Problem of the Day

    @Don Mansfield Okay, I'll answer your question. Yes.
  8. How can we speed up the source selection process?

    @Gordon Shumway What rule did you break?
  9. Formality and boilerplate in federal contracts

    Thoughta about construction clauses. They were mainly developed by the military, which was doing construction contracting before most civilian agencies were created. Especially at the outset of the two world wars--camp construction. The FAR construction clauses are very similar to the ones used in the private sector, and I'm not sure which came first. Did the military model their clauses on the commercial sector or vice versa? The good news is that there is a massive amount of info about construction clauses, and a large amount of litigation of construction contracts, so reviews of court and board decisions might show how the clauses changed over time. You might want to focus on differences between AGC boilerplate and FAR boilerplate. However, the UCF does not apply to construction contracts. So I don't know how your interest in construction clauses meshes with your interest in the UCF.
  10. Real Contracting Pros

    Reading some of the pathetic, bs questions posted at Wifcon during the last couple of weeks, and feeling that contracting is no longer worth thinking about, I was encouraged to read an article in Defense News entitled, "F-35 program head blasts Lockheed for slow progress on contract." The article is about the negotiation of the contract for Lot 11 F-35 production. https://www.defensenews.com/air/2018/02/28/f-35-program-head-blasts-lockheed-for-slow-progress-on-lot-11-contract/. The article ends with this: I'm glad to hear that we've still got first rate people working on really tough problems who aren't posting silly, trivial, or incoherent inquiries here and then asking "Thoughts?"
  11. Formality and boilerplate in federal contracts

    A very big topic. You would do well to narrow your focus to a particular contract clause or class of clauses (such as changes or inspection). Much of your research will be in the historical Federal Register and historical volumes of the Code of Federal Regulations. You may have to go to the National Archives and look at old military procurement regulations and contracts. I suggest that you contact the office of Defense Procurement and Acquisition Policy and ask about access to the archives of the Armed Services Procurement Regulation (ASPR) Committee. (They published what might have been the first version of the Uniform Contract Format in the Federal Register on January 3, 1970.) You might also contact the library of the Defense Acquisition University about access and the Law Library of The George Washington University. A review of old GAO protest decisions and reports and decisions of the old Court of Claims might be in order, as well as 19th Century memoranda of the U.S. Attorney General. Keep in mind that practice usually precedes regulation. Regulation usually formalizes practice.
  12. Problem of the Day

    Stick to the topic that you chose, which is the requirement for certified cost or pricing data. In any case, we have relevant court decisions about interest on claims. I am not aware of any such decision(s) pertaining to requiring certified cost or pricing data for the kind of acquisition that you posed to us.
  13. How can we speed up the source selection process?

    It appears that we are out of ideas. I thank everyone who has responded.
  14. Problem of the Day

    @Don Mansfield By being compliant with the regulation that implements the statute. The FAR councils are charged with interpreting and implementing statutes, not individual contracting officers. The FAR councils interpreted the statute and promulgated a regulation. In this case FAR 15.403-1(a)(1) strikes me as very clear. A CO has no authority, under any circumstances, to require the submission of certified cost or pricing data in acquisitions at or below the SAT. Since there is no requirement and no authority, one need not seek an exception to any requirement. Moreover, see FAR 15.403-4(a)(2), which says, in pertinent part: That sentence, to me, reinforces the absoluteness of the prohibition in FAR 15.403-1(a)(1). The prohibition against requiring certified cost or pricing data at or below the SAT dates to as least as far back as 1995 and the implementation of the Federal Acquisition Streamlining Act. The 2017 change to the statutory definition of the SAT to include a SAT for contingency operations outside the U.S. that is higher than the threshold for requiring certified cost or pricing data was not accompanied by any change to FAR 15.403-1(a)(1). As far as I am concerned, that puts an end to any debate. FAR says what it says. Should the FAR councils have changed FAR 15.403-1(a)(1) in light of the increase in the SAT for contingency ops? I don't know and I don't care. That was for them to have figured out. I'll work with the regulation that I have unless and until told to do differently. I believe that my interpretation of FAR 15.403-1(a)(1) is consistent with the plain language of the regulation. If a regulation that implements a statute is ambiguous, a CO might look to the statute as an aid to interpretation, but not to contradict plain language. In this case I see no ambiguity and no justification for saying that my interpretation conflicts with the statute. If a CO thinks a regulation conflicts with statute, or that his or her interpretation might conflict with statute, he or she should seek guidance through appropriate channels. As an aside, your interpretation would render the idea of a "simplified" acquisition procedure practically meaningless, since there is nothing simple about the procedures associated with the submission and consideration of certified cost or pricing data. Such procedures slow procurement, an especially important concern in the case of contingency ops, for which requests for certified cost or pricing data would potentially cancel out any benefits were undoubtedly expected from the increase in the SAT. So my answer to your problem and question is No. Let me know if I have missed something or you discover any official and authoritative interpretation to the contrary.

    Thanks, Bob. I wrote a pamphlet about the USC about 10 years ago, in which I explained what it does and does not contain..
  16. Problem of the Day

    I agree with H2H. FAR 15.403-1(a) is clear. A CO must not to demand certified cost or pricing data "at or below" the SAT ("shall not"). That is an absolute prohibition, not an exception to the requirement for submission. At or below the SAT you don't need an exception to a requirement, because there is no requirement. You never get to FAR 15.403-4. According to FAR 2.101, the SAT in Don's case is $1.5 million. Here is Don's scenario: So Don's prospective acquisition is below the SAT. I see no conflict between 15.403-4 and 15.403-1(a). When reading the regulation in this case you stop after reading 15.403-1(a). Again, the prohibition in that paragraph is absolute. There is no reason to read on to 15.403-4. There is no reason to look for an exception. Why bother? There is no requirement. You've been told that under no circumstance are you to require submission of certified cost or pricing data.

    In short, there is nothing in the U.S.C., and we at Wifcon don't know if there is anything currently applicable in uncodified legislation. Moreover, the language that has been quoted from past legislation is somewhat obscure as to its practical effect. It's doesn't seem to say that an agency cannot spend more than $5,000; it seems to say that it cannot do so until it has notified Congress. It doesn't say that the agency must wait for permission or approval.

    Bob: Your post is confusing. Does such a limitation appear in any currently applicable appropriations law? If so, please cite the public law.

    A search of the United States Code discovered no statute limiting furniture purchases to $5,000.
  20. PBP Milestone - Mulitiple Payments

    So the statute was changed to block the rule, and DOD is taking its sweet time to make the change. Is that what you're saying?
  21. PBP Milestone - Mulitiple Payments

    I think here_2_help has a valid point. The statute, 10 USC 2307(b)(2) clearly states: However, DOD has clearly limited payments to costs incurred. See DFARS 232.1001(a): I don't know how they get away with it. The final rule that promulagated the policy, 79 Fed. Reg. 17936, March 31, 2014, included this comment and response: It also included this: And this: And this: I didn't find a single comment that mentioned the statute. I'm disappointed that no one dragged DOD off to federal court on grounds that its policy is contrary to statute. I can only assume that no one knew enough to do so or that no one cared enough. The rule appears to have prompted little if any comment in the acquisition press. Interesting.
  22. What is a procedure?

    A procedure is a particular sequence of actions to be taken when executing a process. For example, in the process of source selection, FAR Subpart 15.3, the establishment of a competitive range and the conduct of discussions, FAR 15.306(c) and (d), are actions constituting the procedure for conducting exchanges with offerors after receipt of proposals. That procedure does not mandatorily apply when conducting a simplified acquisition (Part 13), making a buy under a GSA FSS contract (Subpart 8.4), or providing a fair opportunity to be awarded a task order under a multiple award IDIQ contract (Subpart 16.5). It is a Part 15 procedure.
  23. Real Contracting Pros

    Junius, It's best not to expect much from the hoi polloi.
  24. Real Contracting Pros

    Oh. Sorry, Junius.