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Vern Edwards

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Everything posted by Vern Edwards

  1. Truth Decay

    Where'd everybody go?
  2. H2H: You say that 1102s and judges can't get it right. Do you know the right interpretation? Will you tell us what it is?
  3. Truth Decay

    Has anyone here seen the September 2017 final report of the congressionally mandated Commission on Evidence-Based Policy Making? Did you know that there was such a commission? Did you know that a bill on evidence-based policymaking has passed in the House and is now in the Senate, co-sponsored by Paul Ryan and Patty Murray? https://www.cep.gov/content/dam/cep/report/cep-final-report.pdf
  4. Truth Decay

    Let's consider an oft-repeated assertion at the bottom of some of our toughest policy debates. (I hope this isn't too controversial.): Diversity is one of America's great strengths. Sen. Lindsey Graham is supposed to have said something like that very recently. Is that true? Is that a fact? Should we base our governing policies on the belief that it is true that diversity is a strength? Or should we consider diversity to be a weakness and the cause of many of our present political troubles? The following is from an article by Jonah Goldberg published in the Los Angeles Times on Jan. 18, "What if diversity isn't America's strength?": http://www.latimes.com/opinion/op-ed/la-oe-goldberg-diversity-strength-20180115-story.html Goldberg's short essay is all over the place, and he dodges his own question, but the essay is interesting nonetheless. Are some topics simply too controversial to permit truth-seeking and discussion? Is that why it took so long for heliocentrism to take hold in scientific circles? Were too few willing to advocate the theory, because they were afraid of the Office of the Inquisition? (Galileo died after nearly ten years under house arrest.) Does RAND address that question? What did the first democracy do to its greatest truth-seeker?
  5. Truth Decay

    Bob, We encounter very few of the world's facts face to face. What we usually encounter are assertions of fact, and on those we need agreement in order to act. In criminal trials jurors are the finders of fact, and when they disagree and get hung up the court decrees a mistrial. Not even in science is there always agreement about what is a fact or the nature of the fact, which is why so many "laws" of science are really just theories. Even when two or more people observe a fact, they may disagree about what they saw. Metaphysically speaking, if there are facts, they are often unknowable. What we often strive for is agreement about what we think to be the case. The exception that I know the most about is math, a type of a priori knowledge. As far as I know, 2 + 2 is indisputably 4. No agreement necessary. I think.
  6. FrankJon: Understand. pat's earlier posts are why I asked him to quote from the contract. I had to laugh at your complaint about government misuse of "lot" as a unit of delivery. You see that all the time. I think half of all 1102s couldn't define "lot" without recourse to a dictionary. Some of them probably think its the name of some guy whose wife turned to salt for some reason. As for the language in FAR 16.202-1 that an FFP contract price "is not subject to any adjustment on the basis of the contractor’s cost experience in performing the contract," it is one of the most misconstrued sentences in FAR. I can't tell you how many students have told me that it means that a contractor is not entitled to an equitable adjustment under an FFP contract, even after they have read the Changes clause. Ask Don Mansfield about that. Finally, you said: Where in FAR does it say that the price of an FFP contract must be firm or even fixed? Those are just adjectives in a name. Besides, what does firm mean? FAR uses the phrases "firm target cost" and "firm target profit." Nor does FAR Part 16 say that the amount of work need be "defined." FAR says that the price is not to be changed on the basis of the contractor's cost experience. it does not say that the price cannot be changed for any other reason. What on earth is the "spirit" of the FAR? FrankJon, please. All firm-fixed-price means is that the parties agreed at the time of award that the government will pay a stipulated amount for performance of some kind, which is not to be changed except as otherwise provided. FAR is not holy writ.We're supposed to be business people, not high priests.
  7. T&M and L-H are appropriate when you want a job completed but don't know how long the job will take. So you and the contractor agree: on an estimate that will serve as a cap on each party's obligations; that the contractor will go to work and do the best it can to finish the job within the estimate; that you will compensate the contractor for its work on the basis of the number of hours that it takes to finish; and that if the contractor cannot finish the job within the estimate you will have the right to decide whether to pay the contractor to keep working or amicably part ways. Suppose on the other hand that you want someone to serve as a receptionist and provide certain services to guests at an event. You know that the event will last no more than eight hours, but you also know it might last only four. You and a contractor can agree: that the contractor will staff the event for a maximum of eight hours at a stipulated hourly rate; that you will pay the contractor for only the number of hours that the event actually continues; that the event may last as few as four hours; and that if, by chance, the event lasts fewer than four hours you will agree to upwardly adjust the payment rate in order to ensure that the contractor earns a stipulated minimum compensation. What's the difference? Well, aside from the difference in payment terms, in the first scenario you use the T&M and L-H inspection clause, FAR 52.212-4, Alt. I(a); in the second you use the FFP inspection clause, FAR 52.212-4(a). Compare and contrast. Alternatively compare and contrast FAR 52.246-6 and 52.246-4. Moreover, in the first the contractor controls how many hours are spent, while in the second the customer controls.
  8. Truth Decay

    Think about this statement in the RAND report, which appears to be a conclusion. What does that mean? Does it state a fact or an opinion? What is a fact? If you say it states a fact, how could you prove that your statement is a fact?
  9. Stop thinking in terms of standard FAR Part 16 categories. A firm-fixed-price contract does not have to be LOE in order to specify payment by the hour based on actual hours!!!!! It can be a firm-fixed unit-price contract with total price based on an estimated number of hours. You appear not to have heard of that. Some people erroneously think such a thing is illegal or a FAR deviation except for construction. It is not. Ignorant people think that any contract under which the contractor is paid by the hour is a time-and-materials or labor-hour contract. That is not true.
  10. Sole Source Procurement

    GregJ: This is a simple matter of contract formation: offer and acceptance. The RFP seeks an offer. if you submit an offer, state your terms, including a statement about any clauses in the RFP that you will not accept. The CO can then either "unilaterally" accept your offer, which should make you happy, "unilaterally" reject it, or open negotiations. Dude, if you're really the sole source you have the upper hand. Retain an attorney.
  11. I don't know what type of pricing arrangement that's supposed to be, but it seems clear that the contractor will be "reimbursed" for labor on the basis of actual hours worked. In your earlier post you said: What you said suggests that you are thinking in terms of standard FAR contract types--FFP, LOE, EPA--but that is not how things always work these days. In a recent article in which I criticized a decision of the Civilian Board of Contract Appeals I said: When looking at an RFP or RFQ these days you cannot allow yourself to think only in terms of the standard FAR contract "types." Agencies these days are coming up with all kinds of weird pricing schemes.
  12. Sole Source Procurement

    What's interesting is that one would ordinarily expect that a sole source solicitation would have been preceded by some talk. Why not? it's sole source. But the OP makes it seem that the RFP came to them out of the blue, with no prior communication. Doesn't that seem odd?
  13. Truth Decay

    Great reference, Jon. Thanks. As for "truth decay," no democracy, ever, going back to classical Athens, has made decisions based entirely on truth. Plato criticized the political rhetoric of his day (4th cent. bce) in Gorgias and other dialogues. Aristotle criticized it in his own manual of rhetoric. See Stanford Encyclopedia of Philosophy's entry on Aristotle's Rhetoric, Section 4.4 "Aristotelian Rhetoric as Proof-Centered and Pertinent": Unfortunately, democracy is not proof against distortions, outright lies, and hooey in general. In fact, it's vulnerability in that regard may be its greatest weakness. Confession: I haven't finished reading RAND's tract, but I think RAND's up-front assertion that there is a "growing disregard for facts, data, and analysis in political and civil discourse in the United States" is itself a lot of hooey. According to RAND: "Increasingly"? Rot. it's been true in this country since day one. Rand begins with the 1880s, but it's much older than that. Want to read something really interesting (and funny)? Read H. L. Mencken's Notes On Democracy (1926). It's available free online in pdf form. Google it. Or read George Orwell, "Politics and the English Language" (1946): "Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." As for federal contracting, truth decay goes waaaay back. Remember the stuff you used to read in NCMA's Contract Management about how the Wright brothers' contract was an example of effective incentive contracting and how it showed that performance-based contracting really works? Contracting writers kept telling those lies right up until I wrote my historical essay about it. But don't worry. Truth has a short shelf life. They'll be back to it soon if they aren't already. The danger for us is that some of us think that once upon a time we were better about facts and truth than we are now. I used to laugh when President Obama would say, "That's not who we are." I used to think, What nonsense. That's exactly who we are. That's why there's a problem. Same as it ever was. It just goes undisguised these days.
  14. Sole Source Procurement

    "Negotiated" as used on SF-33 simply means awarded by a method other than sealed bidding. See FAR 15.000. It doesn't mean the dictionary sense of discussion, offer-counteroffer, give-and-take, bargaining, etc. It would be strange to award a contract on a sole source basis without some discussion and bargaining, but who knows?
  15. CPAR Dispute Deadline

    I think you might be able to get injunctive relief from the COFC under the Tucker Act, 28 USC § 1491(a)(2), as long as you satisfy the claim requirements of the Contract Disputes Act. See Record Steel & Construction, Inc. v. U.S., 62 Fed. Cl. 508 (2004); Sacilatto, Challenging Contractor Performance Evaluations: FAR Processes and Claims Before The Court of Federal Claims and The Boards of Contract Appeals 11-10 Briefing Papers 1 (September 2011); and Muldoon and Geibel, Challenging Negative Performance Evaluations: Confronting Hurdles at the ASBCA and COFC, 51-Fall Procurement Lawyer 17. You should talk to an attorney.
  16. CPAR Dispute Deadline

    If you file a claim, what kind of relief would you want from a board or the Court of Federal Claims?
  17. pat: I asked for a quote of the CLIN description in the contract. Is what you provided a quote, or your own description?
  18. I wonder if "incrementally funded" is the right term.
  19. Yeah, I should have realized that. It's early, and I didn't read the title of the thread. Thanks.
  20. Can you post a quote of the actual language of the CLIN description?
  21. 2nd Tier Sub Labor Violations

    How many times do we have to say that the provisions of FAR apply to the government? A provision of FAR does not apply to a contractor unless made a part of a contract.
  22. What laws apply to the US. Mint?

    Carl, I didn't see it, but I take your word for it. Thanks! I appreciate it. Very kind of you. Vern
  23. What laws apply to the US. Mint?

    Why would I suggest that it would be great if you would learn if I didn't think that you could learn? Man, you're paranoid! I'm out to get you, ooooooh. Okay, for the sake of discussion I'll accept the authority of your unnamed Mint CO. But what does "to the maximum extent practical" (practical or practicable?) mean in the context of the Mint's exemption from procurement laws and regulation? Did you ask about that? The DTAP supplements the DTAR, which supplements the FAR. The DTAR says it does not apply to the Mint. So how are we, or an offeror or contractor, to interpret the applicability of the DTAP? How can the OP know its rights and the procedures that the Mint must follow from a reading of the DTAP? Did you ask the CO for any specific example? For example, what about DTAP Part 1015? Does that apply? What is an offeror or contractor to make of it? In any case, I have already discussed the practical limitations of any such applicability. The DTAP is not a "rule." See 5 USC § 601(2). It's clear that you call it a rule, but it's not clear on what basis you do so. What about 5 USC § 601(2). Can they? The statutory rules about protest do not apply to the Mint. The protest rules in FAR Subpart 33.1 do not apply to the Mint. The protest rules in the DTAR do not apply to the Mint. How are we to know that the protest rules in the DTAP apply to the Mint. And if they do, how are we to know the contractor's rights and Mint's procedures for handling such protests if it does not have to comply with the FAR and the DTAR? "[W]hen I became a man, I put away childish things." You are never going to admit that I was not "very misleading," which is all I want. So I'm putting you away right now.
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