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Vern Edwards

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About Vern Edwards

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  1. Multiple-Year Funding

    Despite the title that you gave to this thread, it sounds like you have annual funds. When you wrote "FY16/17," I presume that the slash between 16 and 17 stands for and and that you meant that you used FY16 funds for one part of the contract period and FY 17 funds for another. (Otherwise, with respect to annual appropriations, there is no such thing as "FY16/17" funds. There are FY 16 funds and there are FY 17 funds.) If, in fact, you have multiple year appropriations, then disregard this post. The extension is a new procurement, even if you accomplish through supplemental agreement under the existing contract. If you (1) have FY17 funds, (2) make the extension a separate line item, and (3) accomplish the extension before the end of September 30, 2017, then you can use FY17 funds to fund an extension for up to 12 more months. See FAR 32.703-3(b) and the GAO Red Book, Vol. I, Ch. 5, Sec. 9a.
  2. Which is why coverage of commercial items contracting should be removed from the FAR, Chapter 1 of Title 48 of the CFR, and placed in a separate chapter of Title 48, which should expressly state that it is the exclusive coverage for commercial items. Hear that, Section 809 Panel? While you're at it, take simplified acquisition out of the FAR, as well.
  3. Mandatory E-Payroll

    So what? Perhaps they should be.
  4. Mandatory E-Payroll

    Well, in response to your wonderment: Emphasis added. The rest of the section goes on to prescribe procedures. It also allows waivers in "urgent and compelling circumstances." Now, it seems to me that forcing contractors to buy third party software in order to submit information to an agency under a statute that does not require the purchase of such software would have a significant cost or administrative impact on contractors or offerors. You have to buy, learn how to use, maintain, and troubleshoot the software, and do data entry, and you might have to change existing company data management and reporting practices. See 41 U.S.C. § (a)(1)(B). Congress enacted 41 U.S.C. § 1707, and the president approved it, in 1984, in order to stop agencies and offices within agencies and contracting officers from individually launching policies and procedures willy-nilly without giving the public a chance to comment and object. Don Mansfield has written about this. See Postscript II: Agency Policy Memos, The Nash & Cibinic Report (February 2014), in which he said: Now, a policy like "Mandatory E-Payroll" might be perfectly justifiable, which is what the public comment period is for, to give agencies a chance to explain what they want to do and why they want to do it. It gives the public a chance to complain to the agency and to its legislative representatives if they think the proposed policy is unreasonable or too burdensome. What if an agency decides to ignore the law or argue that the policy does not meet the standard in (a)(1)(B)? Well, a prospective contractor can protest and force the agency to try to persuade an independent tribunal that publication was not required. Really, government has to be under control and restraint or it will go crazy.
  5. Mandatory E-Payroll

    It does not matter by what authority the CO included the clause if the authority was granted in violation of the requirements of statute or regulation. I cannot think of any valid authority to establish a policy to use such a clause without first complying with 41 USC § 1707, FAR 1.501, and FAR Subpart 1.4. The agency should explain why it did not do so. (It did not. I checked with the agency today.) While the agency might have an argument that they did not need to do so under statute and regulation, a requirement for a construction contractor to buy, install, and use special software for payroll submission is not a minor matter, and any such argument should be put to the test before the CO's superiors, the GAO, or the COFC. Joel, the same goes for the USACE's use of any such clause.
  6. Mandatory E-Payroll

    I could find no authority for use of the clause in question. I, too, searched the Federal Register and the regulations. I also searched the United States Code. You could protest the use of the requirement and the clause to the agency, the GAO, or the Court of Federal Claims after the solicitation comes out, but before the date set for submission of bids or proposals. You could protest the requirement and the use of the clause on the ground that it is an unauthorized FAR deviation, see FAR Subpart 1.4, and that inclusion of the clause violates 41 U.S.C. § 1707 and FAR 1.501. Unless Don Mansfield or I have missed something, your protest would almost certainly be successful. You could, instead, make a formal written inquiry citing the references that I have provided. Such an inquiry might make the agency back off. A protest would be a public service,, but won't win any friends within the agency.
  7. Your first statement is not clear. What do you mean when you say that the CO "awarded a contract under NAICS 541110"? What does "under NAICS 541110" mean? As for you second statement, does the solicitation expressly require the provision of legal services by an attorney-at-law? If so, at what geographical location? When you say that the "company... do not hold a professional license in any jurisdiction where they are located," do you mean that none of the owners or employees of the company are licensed to practice law? Do the jurisdictions in which they are located require the company to have a law license of some kind, or does it require that persons in the company who practice law have a law license? A lot of people would argue with you about that. I won't, but a lot of people would. Maybe you meant that you cannot practice law without a law license. If you were to protest, you would protest that (a) the firm is nonresponsible, or (b) that the firm itself does not meet an express requirement of the solicitation that it be licensed, or (c) that the firm's proposal is unacceptable because it does not satisfy a material requirement of the solicitation, or (d) all of the above, depending on the facts. In re: protests against affirmative determinations of responsibility, see SaxmanOne, LLC, GAO B-414746, Aug. 22, 2107: I doubt that inconsistency with the NAICS code would be grounds for protest. But who knows? You'd have to make some kind of argument.
  8. page limitations on proposals

    I looked at the Report, and I get it. Thanks.
  9. page limitations on proposals

    Don: How are such determinations made? Are they made on the basis of objective assessments of recorded measurable empirical data or are they based on subjective, anecdotal "feedback"? If objective, who validates the measurements and assessments? How are causal determinations made? Are the data and verification reports published? Vern
  10. See this: http://www.wifcon.com/discussion/index.php?/blogs/entry/3401-streamlining-the-far/
  11. page limitations on proposals

    Agencies set page limitations (and font style, size, and spacing limitations, and page margin requirements, etc.) because they wrote vague instructions for the preparation of "technical" and "management" proposals. Offerors, not sure what agencies were looking for, resorted to what I call "recon by fire," an old infantry tactic. They wrote as much as they could about everything they could, hoping to score enough points to get into discussions, where they hoped to find out what the dummies wanted. Agencies never understood that they were to blame for proposal bloviation. Then agencies resorted to ridiculously small page limitations, like the one described in the opening post, too stupid to realize that they didn't need technical ("narrative") proposals at all. I wrote this in 2013: Acquisition personnel are often thoughtless about their work. It's maddening. They do the things they do because that's the way things have always been done, and they infect their trainees with cut and paste disease. Brain death is rampant in the ranks, from political appointees, through the ranks of the SES, down to the journeymen. All I can hope for is ruthless insurgency by the young. Okay, back to "Rick and Morty." TINY RICK!!!
  12. page limitations on proposals

    I wrote the following in 1994. It was published in a professional newsletter in October of that year. In December 1994 the newsletter published two letters, which it received in response to my article: In December of 1998, Profs. Ralph Nash and John Cibinic wrote this about proposal page limitations: And now, 23 years after my 1994 article, think of the conversation that you all have been having in this thread. What does it tell you about your profession?
  13. What's the point of continuing this discussion if you won't provide a straightforward answer to the question: Why target = ceiling? You should be able to answer that in just a few simple sentences, without the irrelevancies. Why is target = ceiling an essential feature of your use of FPI? How is it in the government's best interests? Give me the contract number(s) or name the project. Let's take a break until Tuesday. It's a holiday weekend.
  14. Because you're not really thinking of an FPI(F) when you propose a target and a ceiling that are the same. That's not a concept that I know to have been used in the entire history of FPI(F) (which goes back to WWII). There is nothing that "specifically" (expressly) provides for such a thing, including the instructions for completing the incentive price revision clause. The FAR is silent about what you want to do, so, legally, it can be done, but why do it? See FAR 1.102-4(e): Why is identical target and ceiling, something that as far as I can determine is inconsistent with 57 years of written guidance in FPI(F) structuring, in the best interest of the Government and sound business judgment? Here's what you said in your opening post: The first sentence is the real rationale. As for the second, why would FPI(F) do those awful things for a DB construction project when it didn't do them for the first GPS satellite development project in 1977, which used an FPI(F) with a 75/25 share ratio and a 120 percent ceiling? The launch and spacecraft performance were a great success. Come on. The only rationale you have provided since (that I can remember) was this: Now, Joel, be fair. Read what that says. That's not a rationale (argument) for identical target and ceiling, which is a radical departure from long-standing FPI(F) guidance and practice. The fact that you were asked to research and develop guidance is not a rationale for the guidance you are developing. True, FPI(F) is simpler than FPI(S), but how is that a rationale for identical target and ceiling? What comes after that "thus" in the last sentence of your second paragraph does not logically follow from the three sentences that go before it. The fact that CM@Risk isn't suitable isn't a rationale for identical target and ceiling, either. Talk about bureaucratic resistance. I can tell you now that if you recommend that without a better rationale than you've given here you are likely to face a long, uphill struggle to get anybody to write that into any regulation or guidance. Why would they? If I were at a meeting with you in which you made that recommendation I would ask you to tell us when such a thing would be appropriate and why? And you'd be done for if your only explanation was that it would be appropriate because it would match what's in the DBIA Manual of DB Practice. I would ask, if you're trying to match DBIA's guidance, why not simply recommend that we adopt the GMP contract type that they use? Why corrupt the FPI(F), which we think has worked well. (Actually, there is no evidence that it has.) Joel, how hard would it be to identify a target cost and profit, add the contingencies to set a ceiling price, and set a share ratio that you think would motivate the contractor to manage the contingencies and control their costs? Do that and you don't have to recommend or justify anything to anybody. If you want to use FPI(F), why not just use a standard-practice FPI(F)? Joel, I'm not trying to be difficult. I'm trying to help you prepare for questions you might get from the conservative, cautious staffers you mentioned earlier. After all, you were concerned enough about the identical target and ceiling yourself to post a long thread asking if it would be okay. If I were a staffer and you brought this to me for review I would hone right in on that identical target and ceiling and not let go until you hollered, relented, or provided a reasoned argument in support. You don't have to agree with me about FPI(F), just gin up a decent argument for what you want to do. Don't wreck your cause by constructing a rickety framework for it. If I were in your place I would recommend Government adoption of GMP. I'd find a Government sponsor. Vern
  15. D&F Signature Authority over $1Billion

    The word billion does not appear in the FAR. It appears only five times in the entire FAR System: three times in the DFARS and twice in the DOE supplement. None of those five relate to any D&F for a multiple award IDIQ.