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Vern Edwards

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Posts posted by Vern Edwards


  1. The contract sounds like a kind of FFP-LOE. We have not been told what the requirement is, so no one can say that the contract type is inappropriate.

    All we have in this thread is a barely coherent newcomer to the Forum who is complaining about a government procurement decision and wants sympathy. This topic is not worth our time.

    If you don't like the contract, don't seek the job.


  2. @eagertoshare

    I am having some trouble following your last post. Let me see if I have it right:

    The contract is firm-fixed-price. Your complaint is that the contract says that "if full schedule is not performed" the government will reduce payment by the number of hours not worked multiplied by a specified hourly rate.

    Is that correct?

    You think the contract should allow for vacation and sick leave without deduction.

    Is that correct?

     


  3. 35 minutes ago, jjj said:

    My contracting office is thinking of drafting a provision for use in solicitations for service contracts to put offerors on notice that we may may want to exercise this reach back flexibility (instead of a new competition) if we terminate the first awarded contract for default or convenience, or otherwise choose not to exercise an option, within 15 months of the date of the first award.  One might say that we already have this flexibility even if we're silent (at least for terminations), but we have no problem with being transparent and providing a notice.  I'm interested in any thoughts on this approach from the WIFCON community. 

    You're not being clear.

    1. Are you saying that your office want to reserve the right to accept an offer ("reach back") from one of the unsuccessful offerors up to 15 months after the first award?
    2. Are you saying that you think you already have that "flexibility"?

  4. 15 minutes ago, Matthew Fleharty said:

    Aside from changing the grammar of the 52.217-7 clause...

    See 52.217-7:

    Quote

    52.217-7 Option for Increased Quantity-Separately Priced Line Item.

    As prescribed in 17.208(e), insert a clause substantially the same as the following...

    Emphasis added.

    15 minutes ago, Matthew Fleharty said:

    I don't see how that solution is any different from a risk of delays perspective.  It merely eliminates the need for someone to do math or call the grammar police to determine what the date is for the option deadline.

    Stating a date instead of a number of days does not solve the problem of delays. Eliminating the need to do math is nothing to sneeze at. Stating a number of days can lead to disagreement about the proper counting procedure and the resultant deadline.


  5. 17 hours ago, Roma said:

    we are getting a lot of questions asking for details about the incumbent(s) and their previously provided effort, including details about their employees.  My question is, where do I draw the line?  What is acceptable to share, and what incumbent information should be protected?  Both of the incumbents are also eligible to compete for the new order.

    Make a catalog of the information that you have. Remember that just because you have information does not mean that you can or must disclose it.

    After you know what you know, then:

    First, talk to your attorney advisor, because you, personally, can get into a lot of trouble for disclosing something that the law prohibits you from disclosing.

    Second, take a look at 18 USC 1905, Disclosure of confidential information generally:

    Quote

    Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311–1314), or being an employee of a private sector organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.

    Third, check with your FOIA representative about your agency's disclosure rules.

    Fourth, check the Procurement Integrity rules in FAR 3.104.

    Finally, think twice before releasing anything that you do not know to be public information.

    17 hours ago, Roma said:

    I'm trying to determine how much information we need to provide, how much should we provide, and how do we make or keep the playing field fair?

    Fairness does not require that you disclose the incumbents' business information or information about your agency's relations with them. Disclose what you know about what you will require from the new contractor. But you may not be free to disclose information you have about the incumbents' policies and operations, their relations with their employees, and how they went about doing their work.

    Quote

    It is well-settled that a particular offeror may posses unique advantages and capabilities due to its prior experience under a government contract or otherwise and the government is not required to attempt to equalize competition to compensate for it, unless there is evidence of preferential treatment or other improper action. Gonzales Consulting Servs., Inc., B–291642.2, July 16, 2003, 2003 CPD para. 128 at 7. The existence of this advantage, as alleged here, does not by itself constitute preferential treatment by the agency, nor does it otherwise represent an unfair competitive advantage. Government Bus. Servs. Group, B–287052 et al., Mar. 27, 2001, 2001 CPD para. 58 at 10.

    Matter of: Council for Adult & Experiential Learning, GAO B-299798.2 (Aug. 28, 2007)


  6. For the purposes of review, here are the original questions asked:

    1. Can the contract option period for Phase II be modified to change it's notice period to retroactively make it appear to not have expired? It expired almost a year ago.
    2. In the alternative, can the parties negotiate a new option and add it to the contract via a bilateral modification?
    3. Would either of these actions violate/require an exemption from CICA? 

    In light of the fact that the period of performance has not expired, my answers are:

    1. Yes, in my opinion. You can waive the deadline or the parties can modify it by supplemental agreement even after the fact. However, you don't want to "make it appear." (That doesn't sound good.) You want to change the deadline for exercising the option.
    2. Only if the CO complies with FAR 6.302-1.
    3. Yes. See 2 above.

  7. 58 minutes ago, Contractor123 said:

    The fill in language in the clause states the govt had to provide written notice to the contractor to exercise its option 24 months after award. No preliminary notice was required. The 24 months passed. The CO wants to modify the 24 months to 48 months.  Question is can he do so if both parties agree? If an option has to be exercised in strict compliance with its terms, can the terms be changed after the period to exercise has passed.  

    Okay, for everybody's benefit, here is FAR 52.217-7:

    Quote

    The Government may require the delivery of the numbered line item, identified in the Schedule as an option item, in the quantity and at the price stated in the Schedule. The Contracting Officer may exercise the option by written notice to the Contractor within [insert in the clause the period of time in which the Contracting Officer has to exercise the option]. Delivery of added items shall continue at the same rate that like items are called for under the contract, unless the parties otherwise agree.

    I don't know of any GAO case which deals with your problem, untimely exercise of an option, in terms of CICA. However, in Ceredo Mortuary Chapel, Inc. B-232373, 89-1 CPD ¶ 12, January 9, 1989, decided five years after the enactment of CICA, the GAO decided that a contractor could waive untimely notice of the government's intent to exercise an option, which is not the same as the actual exercise. Here is the pertinent text of the decision:

    Quote

    Ceredo Mortuary Chapel, Inc. protests the exercise of an option to extend contract No. V581P–1526, issued by the Veterans Administration Medical Center, Huntington, West Virginia for ambulance services... We dismiss the protest.

    Ceredo argues that because the contracting officer failed to give the required 60 days notice of the government's intent to exercise the option to the incumbent contractor, the option exercise was ineffective, requiring resolicitation of the services.

    We do not agree. The notice requirement included in the contract protects the contractor and may be waived either expressly or by conduct. See 3A Corbin, Contracts § 759 (1960). When the condition of notice is waived, a valid contract results. See generally Burroughs Corp., DOTCAB No. 1327, 83–1 BCA ¶ 16,427 (1983); Fourth Street Estates, Inc., GSBCA No. 5813, 81–2 BCA ¶15, 299 (1981). Therefore, as the incumbent contractor apparently accepted the option exercise, the contract is valid for the extended term.

    See also Independent Metal Strap Co., Inc., B-231756, 89-2 bCPD ¶ 147, August 17, 1989.

    My thinking is that the GAO's reasoning---that the notice deadline protects the contractor and that the contractor thus can waive it---also applies to the deadline for exercising the option, as long as the period of performance has not expired.

    If I were the CO, and I was ready to exercise the option, I would not process a supplemental agreement to change the deadline. I would send you a letter or an email asking you to waive it and asking for confirmation of the waiver in writing signed by an authorized representative of your company. Upon receipt of written confirmation I would then issue a unilateral modification exercising the option. I see no CICA or other legal problem with that approach.

    As for changing the deadline from 24 months to 48 months, I am not sure whether the CO is ready to exercise now or if the 48th month would be at some time in the future. if the latter, I would change my procedure. I would do a supplemental agreement.

    However, you cannot renegotiate the terms of the option without an approved sole source justification in accordance with FAR Part 6. Renegotiation would be treated as a new procurement for which the CO must obtain full and open competition unless an exception applies.

    As for price redetermination, I think that contract term would still apply.

     

     


  8. On 7/14/2018 at 9:02 AM, Contractor123 said:

    My question relates to an IDIQ with an active base period of performance (Phase I) that will be expiring soon. The gov't missed the notice period requirement to exercise the option for Phase II and thus the option has lapsed. The CO believes we can execute a bi-lateral modification to change the notice period term so that it has not yet expired. We would like to use this opportunity to renegotiate terms, specifically pricing, if possible.

    Those remarks refer specifically to the "notice requirement," by which I presume the OP meant the "preliminary notice requirement" in FAR 52.217-9 or one like it. If that's not what he meant he should come back here quickly and clear things up. I also presume, since he wanted a prompt response from us, that he is monitoring this thread.


  9. 9 hours ago, Jamaal Valentine said:

    Generally, the Contracting Officer may at any time, by written order make changes within the general scope of a contract anytime before final payment.

    That's an incomplete paraphrase of the terms of the Changes clause, FAR 52.243-1, et al. What the clause says is:

    Quote

    The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:

    (1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications.

    (2) Method of shipment or packing.

    (3) Place of delivery.

    The list of things the CO may change by written order does not include the deadline for preliminary written notice.


  10. On 7/14/2018 at 9:02 AM, Contractor123 said:

    Can the contract option period for Phase II be modified to change it's notice period to retroactively make it appear to not have expired?

    What option clause is in the contract? If the clause is FAR 52.217-9, and if the only problem is that the government failed to give the "preliminary written notice," then the CO should ask the contractor to waive the preliminary written notice requirement in writing and then exercise the option before the end of the period of performance.

    On 7/14/2018 at 9:02 AM, Contractor123 said:

    We would like to use this opportunity to renegotiate terms, specifically pricing, if possible... can the parties negotiate a new option and add it to the contract via a bilateral modification?

    The CO must obtain an approved sole source justification in order to do either of those things.


  11. @PepeTheFrog @jayandstacey and @ others:

    I understand that some of you do not like the idea of a six-hour test of knowledge, understanding, and writing ability. What I do not understand is your obsessiveness. jayandstacey has posted three times to say just how much he/she does not like the idea and why. My reaction is: OK, I get it. I expected that some people wouldn't like it. But, really, must you go on?

    I was not trying to sell the idea of a six-hour writing test. I just wanted to use it to see if people would accept such a challenge. There is a theory that you can attract some people to want a status by making it hard to get. They want to be among the special ones and work with such people. The tougher the membership challenge, the more they want to go for it. Others will walk away. Certain organizations in our world, including some schools and business organizations, think that way. They think it's a way to separate the wheat from the chaff. Such organizations want the ones who want the challenge. They don't care about the ones who don't. I wanted to see how the denizens of Wifcon would respond.

    Twelve people out of the Wifcon membership have responded. It is clear that most of them didn't like the challenge that I posed. It's interesting though, that although Q2 is obscure because of the way Bob posted it in the poll, it's clear that some of the ones who didn't like the challenge would accept it anyway. I think I've learned what I wanted (and expected) to learn and I doubt that the poll percentages would change much as a result of more responses.

    I think my scenario was poorly designed and I give up on it. Among my failures was that my scenario wasn't clear. For example, I didn't mean that you would have to write for six hours, only that you would be given six hours to write. You could leave whenever you were done.

    But some of you can't get past the scenario itself and keep coming back to say just how much you don't like it. You can't seem to accept it as make-believe. It's as though you fear that someone might think it's a good idea. You would like the job, you just don't like it enough to devote six hours of your time. I get it.

    I abandon this thread.

    Thanks very much to all who responded.


  12. @jayandstacey

    You made it clear in your very first post in response to my scenario that you do not like the hiring procedure that I described, and I appreciate your comments. But in the above post and the one immediately before it you've gone overboard.

    LOOK, it is a thought experiment, and you've made your point.

    Frankly, I consider your latest objection absurd. Pepe's claims aside, there are not many $180,000/year + benefits government contract negotiator/administrator jobs that come with an administrative assistant. There will be plenty of competition for such a job, were it to exist, and a corporation would have every legal right to set up whatever selection process that it likes that does not illegally discriminate under applicable federal and state law. If you were worried about misappropriation of your written product, you could put a copyright notice on it.

    This is from an OPM webpage: https://www.opm.gov/policy-data-oversight/assessment-and-selection/other-assessment-methods/writing-samples-summary.pdf

    Quote

    Is writing a critical aspect of the position you are hiring for? You may want to consider having applicants complete a writing sample. Writing evaluations belong to a class of assessments referred to as "work sample tests," which require applicants to perform the types of tasks performed on the job. They can be very useful when writing ability is identified as one of the most critical competencies for the position. As with any other procedure used to make an employment decision, a writing assessment should be:

    • Supported by a job analysis,
    • Linked to one or more critical job competencies,
    • Clearly indicated in the Job Opportunity Announcement so that job candidates are aware they may be required to participate in a writing exercise and at what point this will occur, and
    • Based on standardized reviewing procedures (e.g., all candidates receive the same question(s) or prompts, same testing conditions, same amount of time, etc.).

    And from another site: https://www.thebalancecareers.com/writing-samples-for-job-applications-and-interviews-2061594

    Quote

    When Do Employers Request a Writing Sample?

    This is a common requirement for writing-intensive jobs in journalism, content development, publishing, public relations, communications, research, and consulting. However, you may be asked to provide a writing sample, or other examples of your work, for other types of positions. For example, if you are applying for a position as an executive assistant to the CEO of a Fortune 500 company, and he or she will need you to write some of their correspondence, your writing skills are key.

    Here's from another: http://www.ncsl.org/legislators-staff/legislative-staff/program-evaluation/writing-exercises-for-job-applicants.aspx

    Quote

    We've used a writing exercise for many years. Each candidate who is invited in for an interview is first given a one-hour exercise consisting of 3 parts. All 3 parts are based on an actual audit we did a few years ago, but the information has been heavily fictionalized.

    Part 1 is an "interview summary" with the executive director of the state's cosmetology regulatory agency. At the end, the candidate is asked a series of critical-thinking questions like, "Did any of the Executive Director's comments raise red flags in your mind? Did anything she said suggest possible lines for further investigation?"

    Part 2 is a table of inspection data dealing with inspection regions, number of hair salons in each region, how many inspections were completed, etc. The candidate is asked to write a couple of paragraphs explaining what the table shows, demonstrating analysis and writing ability.

    Part 3 is a series of spreadsheets dealing with timeliness of license renewals and inspections. The candidate is asked to answer a series of questions that demonstrate spreadsheet proficiency and ability to analyze data.

    The exercise is timed, and cut off at 60 minutes. The interviewers are provided with a printout of the exercises and an answer sheet before going in to the interview.

    I'm not sure how we'd measure a candidate's writing ability if we didn't do this type of exercise. Asking candidates for a writing sample has the obvious drawback that we don't know its provenance.

    Now, I know my thought experiment goes beyond a simple writing sample, but it's a THOUGHT EXPERIMENT. Get it? It's not real, and I haven't recommended it as a technique.

    If a job candidate for a position such as the one I described were to voice your concerns to me as the hiring official, I would think him stupid. I know a lot of smart people, including myself, who would be intrigued by such a challenge and eager to take it on for a chance at $180,000 a year and an administrative assistant. I've always liked working for demanding outfits. The only people I know who would turn it down would be someone who thought he or she couldn't cut it. Six hours a waste of time for a $180,000 a year job? Hell, man, the old Civil Service Exam I took in 1974 was three or four hours, and that was for $8,500 a year. I spent three weeks trying to qualify as a paratrooper for something like $2,000 a year. You've probably spent more than six hours binge-watching "The Office."

    Give it a rest. Please.


  13. 1 hour ago, C Culham said:

    No.  Addressing the subject I am fine with but the idea that it is a professional challenge escapes me when the requirement of 3000 words, etc. is attached to the challenge.  Evaluation "3)" is a disconnect with such a requirement in my view.  Let my ability in writing stand on its own especially if I could say it in 2000 words. I almost get the feeling that even though the position "includes no administrative or clerical tasks" throwing the 3000 words, etc. requirement in there is measuring on a clerical element.

    That's a good comment, Carl. Thanks. However, the specification of a minimum or maximum number or range number of words gives the writer some idea of the scope and depth of what is required. For any author, the size of the manuscript also suggests the organizational challenge. The lengthier the article, the greater the challenge of organizing the topic. Two thousand words is a different organizational challenge than than 3,000 words.

    I usually write for money. (According to Samuel Johnson, ""No man but a blockhead ever wrote, except for money." So I guess that makes me a blockhead sometimes.) Almost every periodical and many book publishers specify their requirement in terms of a minimum, maximum, range, or specific number of words. See, e.g., the submission guidelines for Writer's Digest:

    http://www.writersdigest.com/submission-guidelines

    Scientific American https://www.scientificamerican.com/page/submission-instructions/

    Defense Acquisition Review Journal https://www.dau.mil/library/arj/ARJ/arj84/ARJ Authors Checklist 5-23-2018.pdf

    So, while I understand your thinking and appreciate your comments, I do not agree that in this case the specification of a minimum number of words is a "clerical element."

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