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Vern Edwards

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Everything posted by Vern Edwards

  1. Joel: Wait. I didn't see your edit.
  2. Joel: I know Mr. Assad. I sat on a panel with him a couple of years ago at which we discussed contract pricing. I respect him, but I do not share all of his opinions. Are you arguing that the policy is sound because Mr. Assad is promoting it? That's why you like it? You read an article in Politico? Please tell me that's not the case. If it is, just say so. If it's not, then tell us your reasons for liking the policy. Your responses thus far have been insulting.
  3. Is that supposed to be an argument in support of the policy?
  4. The above link is to the wrong version of the memo. The memo at that link is the June 5 version. The official version is dated June 7 and should be accessible here: https://www.acq.osd.mil/dpap/policy/policyvault/USA000646-18-DPAP.pdf The link on the Wifcon home page takes you to the official version. The differences seem to be very slight, but it's best to use the official version.
  5. You shouldn't like it. Large defense contractors instituted the use of TINA sweep processes back in the 1980s in order to mitigate the risk of unintentional defective pricing that arises in large organizations in which cost or pricing data relevant to a particular negotiation may be scattered about in multiple offices and divisions and among many subcontractors. Cost or pricing data that is relevant to one such negotiation might also be relevant to another, but persons within large companies may not be aware of other ongoing negotiations and of the need to share such information in order to ensure that it is furnished to multiple COs. Keep in mind that FAR 15.406-2(b) states: Emphasis added. Keep in mind that the government might take the term "contractor" to mean the entire corporate enterprise and not just the office or division or affiliate engaged in a particular negotiation. Sweeps are a form of self-defense, and sweeps can take time, because some contractors are huge enterprises and relevant cost or pricing data may be scattered among offices located all over the country and even in foreign countries. Now, DOD is being criticized for taking too long to award and modify contracts. To the extent that it takes a long time, it's in large measure because Congress, DOD, and DOD contracting activities have cluttered their processes and because many of their people are not competent. So the DOD pricing office wants COs to ask contractors to certify the accuracy, completeness, and currency of their cost or pricing data no later than five business days after price agreement, and hints at threats to contractors' estimating systems if they don't comply. And this sweeping memorandum does not advise COs to take specific circumstances into account when making their demands for certification within five business days. Contractors who understand defective pricing know that it is a high risk issue involving not just DOD COs, but also DCAA auditors and the U.S. Department of Justice, two of the most ruthlessly predatory entities known to mankind. DOD may take months or even years to prepare and issue an RFP. Why put the weight on contractors and ask to them to risk a charge of defective pricing? There are many ways to speed up DOD contract award processes if they are taking too long. How about waiving the requirement to submit certified cost or pricing data in urgent procurements? Then again, perhaps the risk of criticism for approving too many waivers is just too great a risk for DOD to take.
  6. I think the memo, as revised, is nothing but a threat of blackmail.
  7. @FAR-flung 1102 So... does all that that mean you think the current small business policy bog is the cat's meow? (Sorry for the mixed metaphors.)
  8. The Assad policy memo seems to have disappeared.
  9. When you say "publicize," are you asking what amount to put in the synopsis for award?
  10. You don't have to dig very deeply. Credit it to lousy professional education. I was taught proper CLIN structuring by the staff of the Contract Writing Office of the USAF Space and Missile Systems Organization in my first year on the job, 1974. Real pros. They literally beat it into me. Of course, that was in the days when contracting people understood contracts and knew why it would make no sense whatsoever to create a line item for a cost. It was when people understood what a contract "schedule" was supposed to be. Go ahead and ask them why they do it. They'll have some half-baked explanation. They might even try to claim that it's okay.
  11. Vern Edwards

    Toddinde

    The answer to your first question is: Yes. The answer to your second is: It depends on what you're buying.
  12. You have said twice that the wifi cost does not fit the definition of ODC. To what definition are you referring?
  13. I know that you have said you are not going to do it. But I'm surprised that you asked if anyone has heard of anyone doing it. So what if someone has heard of it. It's not the right thing to do. If you're with DOD, then you must be familiar with DFARS 204.7103-1, which is the rule setting the criteria for establishing a CLIN. DOD does not (or is not supposed to) establish CLINS for costs, direct, indirect, or otherwise. And that includes the cost of travel. CLINs describe supplies or services that the government is supposed to receive from the contractor. The government does not receive travel. It does not inspect or accept travel. Travel is something the contractor does when performing work. See also PGI 204.7103. I'm glad that you're not going to do it, but I'm confused by your explanation for why you're not going to do it.
  14. There is no such thing! A CLIN is for specifying deliverable supplies, services or construction. Costs are not deliverable supplies, services, or construction. You do not establish a CLIN for a cost. You establish CLINs for deliverable work products. If the wifi cost will be incurred by the contractor, why was it not not estimated and included in the firm-fixed-price? If the cost will be incurred by the program office, why would you include it in the contract? ODC is a cost category for proposal purposes. As a cost, the cost of wifi hotspots used for contract performance strikes me as falling into the other direct cost category. What the heck else would it be? Are you with DOD?
  15. Vern Edwards

    COR Conflict of Interest

    I'm not an expert in administrative law, but here are some thoughts: I don't see anything in 5 CFR that prescribes a process through which a member of the public can demand any action by a government official based on its complaint of a violation of 5 CFR 2635.502. I don't see anything that requires a public official to take any action at the demand of a member of the public. I see no time deadlines for government action. 5 CFR 2635.402 strikes me as pretty loosey goosey. It says "should not participate" not "shall not participate." It appears to leave a lot of room for discretion. I do not know of any standard contract clause that mentions 5 CFR 2635.502. I found no reference to 5 CFR 2635.502 anywhere in the FAR System. I'm not sure that 5 CFR 2635.502 provides a basis for a claim under the Contract Disputes Act, and if it did I'm not sure that a board or the Court of Federal Claims could grant any relief under its CDA authority. In short, there is a loose regulation and no clear process through which a contractor can demand action by the CO or anybody else. A contractor could certainly raise an issue, but it's not clear to me that it could pursue any course of enforcement action. An expert in administrative law, and Lionel Hutz may be one, might be able to shed some light.
  16. Vern Edwards

    COR Conflict of Interest

    My guess is that job title is not important. What is important is the nature and extent of the employee's "participation" in a "particular matter" in which impartiality is required. In short, it's the duties that are important. But that's only a guess.
  17. Vern Edwards

    COR Conflict of Interest

    @Lionel Hutz What if Lois writes to the CO and receives no response, or the CO says that he or she has "taken care of it," but the COR continues in her duties? Does it prescribe a procedure through which the company can file any kind of official complaint or demand an official investigation? Does 5 CFR grant Lois's company any right to demand that the agency make any kind of official determination? I also note that 5 CFR § 2635.502(a) says that the employee "should not" participate rather than "shall not." Is that of any legal significance?
  18. Interesting, but it doesn't persuade me to change a word I wrote.
  19. Well, first off, the government could fix whatever problem is keeping them from complying with the award fee plan and continue under the CPAF contract. Conversion to CPFF would ordinarily require the contractor's assent and would raise the issue of what fixed-fee the contractor would accept. While a claim is possible in theory, it's not clear what the contractor could ask for. Terminate and recompete is possible, but would be drastic.
  20. Vern Edwards

    Contractural Threshold

    Maybe that's because we don't understand what you're talking about. Quote the language of the threshold statement.
  21. Vern Edwards

    Go/No Go and Pass/Fail under DoD

    Not true. You could say that before we take the time to evaluate your past performance you must show us that you have an acceptable technical approach. If you propose an acceptable technical approach, then we'll evaluate your past performance. Acceptability of technical approach is the gate to the past performance evaluation and beyond to a final best value determination.
  22. Vern Edwards

    Contractural Threshold

    May have? May have? Did you check a dictionary?
  23. Vern Edwards

    Go/No Go and Pass/Fail under DoD

    No. You can evaluate proposals only on the basis of the evaluation factors stated in the solicitation. Go/no go and pass/fail "gates' are merely modes of evaluation, and must be grounded in the stated evaluation factors. An evaluation factor is a property (attribute, feature, quality, characteristic, etc.) of an offeror or of its offer. It is a property that is of interest because it affects value (usefulness) to a significant degree. Some factors are positive factors, such that the more of it there is the greater the value, and negative factors, such that the more of it there is, the lesser the value. In order to evaluate an offeror or its offer you must determine whether the factors of interest are present and, if so, to what extent they are present. If you care only that an offeror or an offeror have a property in a specified measure, but you don't care how much of it there is beyond that measure, then you can evaluate it in a go/no go or pass/fail mode. If you require that the factor be present in at least X amount, after which point the more of it there is the greater the value, then you can use a pass/fail mode as a gate for qualifying proposals, eliminate those that don't get through, and then compare the qualifying offerors on the basis of the relative amount of it they have.
  24. Vern Edwards

    Go/No Go and Pass/Fail under DoD

    "Gate" is a metaphor, cdhames. A metaphor. You have to be rated go or pass (satisfy an entry criterion) in order to proceed through the "gate" to the next phase of evaluation. Really, a high school concept. A "gate" can be set up for any non-cost factor. You can also establish a "gate' for a price factor under certain circumstances. The go or pass criterion could be "must be within budget", at which point it passes through the gate for consideration of fairness and reasonableness.
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