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Vern Edwards

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Everything posted by Vern Edwards

  1. K Law Atty, one of my pet peeves is "legal review" as it is often done today. In my opinion, checking to see that funds availability has been certified or that fund cites are correct is not the function of a lawyer. The same goes for checking to see that the contract includes all required clauses. Those are the functions of a clerk. We don't need lawyers for that. Nobody does. As a businessman, I have a lawyer, and he costs a lot. I'll be damned if I would pay him his hourly rate to do clerical work. That kind of focus simple bogs down legal offices and makes legal review a bottleneck. Lawyers have an important role to play in contracting, but just as the role of the contracting officer has been diminished through the incompetence of the contracting workforce, so is the role of the lawyer diminished to the extent that he or she is forced to make up for contracting officer incompetence by doing quality checks. I'm sorry to hear that you did such work. I hope it wasn't by choice.
  2. Filling out a requisition is not the same as certifying fund availability. Just because a CO fills out a requisition it doesn't mean that he or she has certified fund availability.
  3. Pricing & Charging

    What is the contract type? FFP, CR, T&M?
  4. Why not just do what many others do? They issue an RFP amendment that lists all of the companies that have expressed an interest in the procurement, such as those who attended a presolicitation or preproposal conference or who registered at the agency website for the solicitation. No big deal.
  5. Pricing & Charging

    In other words, think through what you are trying to say and then say it in complete and intelligible English sentences.
  6. Contract Modification or New Contract?

    Incentivize Me: Educate me. Please provide an example of an engineering change proposal that would be an "out-of-scope effort" that is not new work.
  7. Multiple Contracts for Same Requirement

    What do you mean by "the same effort"? Let's consider two scenarios. In Scenario 1, Aircraft 54637 must be repaired. If you hired two contractors to make the same repairs to the aircraft, you would be hiring two to perform "the same effort." There is no express rule in FAR against it that I know of, probably because no one thinks that anyone would be stupid enough to do it. In Scenario 2, ten C-130s must be repaired in exactly the same way. All of the aircraft are parked on the same flight line. There is no problem with hiring one contractor to repair 1 through 9 and another to repair 10. In that case you would not be hiring two contractors to perform "the same effort." You don't need to award an IDIQ contract. Now, do you have a scenario in mind other than the two I just discussed that explains what you mean by "the same effort"?
  8. The dollar threshold for obtaining cost or pricing data from subs is $650,000. See FAR 15.403-4(a)(1)(ii). Subcontractors ordinarily submit their cost or pricing data to the prime contractor, not to the government. The dollar thresholds in 15.404-3©(1) determine whether the prime or the subcontractor must submit the sub's cost or pricing data to the government.
  9. Bid Guarantee

    Here is what was quoted to us from the RFP: "THE OFFEROR SHALL FURNISH A PROPOSAL GUARANTEE IN THE FORM OF A FIRM COMMITMENT SUPPORTED BY A REGISTERED BANK USING THE FORMAT PROVIDED AS ENCLOSURE #8" I don't think that's so very clear. I read that sentence to say that the offeror had to provide a guarantee in the form of a firm commitment, which had to be "supported by a registered bank using a format as provided... ." In other words, the bid guarantee, in whatever form, had to be supported by something from a bank in the format of the enclosure, i.e., accompanied by another document. Did the agency mean "a proposal guarantee in the format provided as Enclosure 8, supported by a registered bank"? Why "supported"? Did they mean "a proposal guarantee in the format provided as Enclosure 8, furnished by a registered bank"? If they meant either of those things, which would have been clear, then that is what they should have written. A cashier's check is about as firm a commitment as anyone can imagine. Is a cashier's check in Italy different than it is here? All a cashier's check means is that you bought it with cash and it won't bounce. It doesn't say anything about financial capability beyond the amount of the check. Besides, "format" is not the same as content. I think failure to provide something in the required format might not be a material failure. The first poster said: Emphasis added. The agency has complicated things for itself by saying that it needed something in the prescribed format in order to establish the offeror's financial capacity. The adequacy of a proposal guarantee is a matter of proposal acceptability. Financial capacity is a matter of offeror responsibility. In effect, it seems that the agency is rejecting the bid guarantee because the offeror has not provided proof of its responsibility. But it does not have to prove its responsibility at the time of proposal submission. Protest!
  10. Bid Guarantee

    File a protest with the GAO at once. A cashier's check is a perfectly acceptable bid guarantee. The purpose of a bid guarantee is to guarantee a bid, not to validate an offeror's financial capacity. Don't wait. Protest now. Today. You have nothing to lose.
  11. Subcontract Administrator

    It seems to me that an IDIQ contract with a fixed-price per word would work fine. Market rates appear to range between $ 0.16 to$ 0.22 per word, with some variations for different kinds of material (e.g., legal and technical) and obscure languages. I would think that an hourly rate would be dicey, since you can't be sure how many words would be translated in an hour. The number would almost certainly vary with the language expertise of the translator and his or her familiarity with the type of material to be translated. So I would stick with market pricing and use a per word rate. It should not be difficult to determine the word count for particular documents, so each order could be priced in advance. What am I missing?
  12. Insourcing contractor acquisition support

    You said to see if it's possible because it's really dumb?
  13. Insourcing contractor acquisition support

    No competent contracting officer would sign a contract that provided for payment of such a fee. What if the employee responded to a public announcement of a government job and turned out the be the best qualified candidate? The government should pay a fee to the contractor because its employee decided to seek public employment? The government should deny a public job to a qualified someone who seeks it because some idiot contracting officer agreed to the payment of such a fee? Dumb idea. Really dumb.
  14. Funding UCAs that Cross Fiscal Years

    Don: Good blog. Many Wifconers are not DOD contracting people, so I think it's impoirtant to emphasize that you are using the term "undefinitized contract action" as it is defined in DFARS 217.74. In that regulation, change orders and other within scope modifications are not "contract actions," and undefinitized change orders are not undefinitized contract actions. As you are using it, "undefinitized contract action" applies only to out-of-scope (new work) modifications and to letter contracts. People working for civilian agencies must understand that not all undefinitized documents are "undefinitized contract actions" as you are using the term. The reason for the GAO's position is that a letter contract obligates the government only up to the limitation of government liability. There is no contract beyond that point. Definitization creates a new contract that "supersedes" the letter contract. Thus, any amount of the definitized price that is in excess of the limitation of the government's liability is a new obligation that is a bona fide need of the year in which definitization takes place. I suggest that you contact GAO and ask them to provide coverage of this in the next update of Vol. I, Ch. 5.
  15. Insourcing contractor acquisition support

    Having once been the victim of a noncompete agreement that I foolishly signed and that was subsequently broadly interpreted by a former employer with more money to litigate than I had, and having suffered terribly for it for two years, I say that if Aronson makes his employees sign such agreements I hope that every single one of them leaves his employ and I advise others not to work for him. Hopefully, he does not use such potentially coercive measures. Brian: I hope that you can guess what I think of your suggestion. To others: Do not sign any noncompete agreement before you consult an attorney. Better yet, do not sign any noncompete agreement.
  16. Multiple Awards - firm requirement

    There are many definitions of "research and development." There is no definition of "research and development" in FAR, but here are definitions for "research" and for "development" taken from FAR Parts 2 and 35: Here's another definition, this one from the DAU Glossary of Defense Acronyms and Terms: And another from yet another source: Here's a definition from a DFARS clause: Here's one from the Nuclear Regulatory Commission: From the Dept. of Energy FAR supp.: Here's the one from 15 USC ? 638, which is entitled, "Research and Development": Here's the one from 42 USC ? 2014: There are undoubtedly many more. Using proven technology in the development of a design might be research and development, or research, or development, depending on which definition applies and the facts of the case.
  17. Multiple Awards - firm requirement

    The issuance of multiple awards for known requirements is not illegal and the approach has been used often in R&D to produce two initial designs. An excellent recent example is the Global Position System OCX program. (Google: GPS OCX). In that program two contractors were awarded "Phase A" contracts for initial designs. The government is now evaluating proposals from the two firms for the award of the final design/production contract. However, Phase B was not an option in the Phase A contract. In your case, since the first phase is for initial design, I presume that the final design and productions options would be unpriced at the time of the award of the initial contract. If so, then you must comply with FAR Part 6 before exercising the unpriced options. See FAR 17.207(f). See too the GAO's letter to Ms. Margaret A. Willis FAR Secretariat General Services Administration, B-225165, Jan. 16, 1987, and the GAO's letter to the Honorable Caspar W. Weinberger The Secretary of Defense, B-217655, April 23, 1986. The question is whether you can limit the competition for the options to the two contractors selected initially. It may be that you would either have to prepare a J&A of some kind or conduct a full and open competition. If you conduct a full and open competition, it would be difficult for any firm other than the two contractors to compete, but that might not keep someone from trying. Various "downselect" approaches have been used in the past. I like them. I like your idea. But to the best of my knowledge the technique that you describe--using unpriced options for the later phases and then limiting the unpriced option competition to the winners of the initial contract--has not been tested in a protest at the GAO or the Court of Federal Claims. That would not stop me from trying it, however. Just announce in the synopsis for your initial contract that you plan to limit the option competition in that way and then wait to see what kind of response you get.
  18. Implementation of E-verify has been delayed until September 8, 2009. See 74 FR 26981, June 5, 2009.
  19. Contractor or Vendor

    I think we can presume so. In light of all the interesting things to talk about in acquisition--see, for example, OMB's new memoranda about acquisition--why are we still talking about whether or not to use a particular solicitation provision in an RFQ when everyone seems to have conceded that the provision is not suitable for RFQs? We're into the third page of this discussion. Aren't we smarter and more interesting than this?
  20. Contractor or Vendor

    Criminy, I'm losing it! Thanks, Navy. And thanks, Don, for telling me it was Navy. I went back and edited the post to give credit to Navy.
  21. Contractor or Vendor

    Navy, I did say 13.101((1) when I meant ((2). Thanks. My bad. And I typed "contracts" when I should have typed "solicitations." Thanks again. To me, ((2) appears to make a distinction between solicitations and requests for quotations because of the wording "in solicitations and in awards under under requests for quotations." Why say in solicitations and in awards under RFQs? Why not say in solicitations and in awards? I don't argue that RFQs are not solicitations, but I do not change my opinion in light of my mistakes. Think of my second paragraph as dicta. Readers might be interested to learn that the definition of solicitation in FAR 2.101 was added to FAR in 2002 by FAC 2001-06 as one of the changes made to clarify 'definitions that are used in the FAR for sealed bid and negotiated procurements." See 67 FR 13954, March 20, 2002. Prior to that, there was no generally applicable definition of solicitation in FAR. The language of FAR 13.101((2) predates the definition of solicitation.
  22. ID/IQ, Requirements, can they be Firm Fixed Price?

    Brian, You're right. I was talking only about the so-called "indefinite-delivery" contracts described in FAR Subpart 16.6, and I should have made that clear. You can add a fourth row to the matrix: Definite-Delivery-Definite-Quantity. Thanks
  23. What Type of Contract Do I Have?

    Let's slow down here. The contract type taxonomy probably does not make any difference at this point. The contract exists and it is what it is, whatever that is. What matters is what it says with respect to any particular issue. There is no reason to worry about whether it's this or that. The time for that was when the model contract was being put together for the solicitation. Calling it firm-fixed-price or something else isn't going to resolve any issues or solve any problems. With respect to any questions, what matters is what the contract says when interpreted as a whole.
  24. What Type of Contract Do I Have?

    Don, It does sound like an FFP LOE.
  25. What Type of Contract Do I Have?

    The problem appears to arise from the way the CLINs are written. A CLIN is supposed to identify "deliverables" and their associated prices. In a service contract, the CLINs are usually brief summaries of the statement of work. A CLIN might read something like: SERVICE in accordance with Section C, Statement of Work QTY: 1 (or more) UNIT: JOB or QTY 1.920 UNIT: HOUR jtolli said: "The scope of the contract requires the contractor employee to come to work and provide support on a day-to-day basis." What, exactly, is the deliverable? What is "support"? Is it the employee's presence and engagement in a specified type of actiivity, one day at a time, or one hour at a time, with no particular output? Or was the employee expected to produce an output, one day or one hour at a time, such that the deliverable is a day's or an hour's worth of acceptable output? Whatever--the contractor is to be paid a stipulated price per unit of delivery.