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Vern Edwards

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Everything posted by Vern Edwards

  1. Vern Edwards

    SCA

    I commend Carl for finding and providing a link to the article. Note that the article is dated 1998. In Spectrum Sciences and Software, Inc., ASBCA 49769, 00-1 BCA ¶ 30663, decided in 1999, the year after the article was published, the ASBCA denied the contractor's claim for an equitable adjustment based on the DoL's rejection of a proposed conformance. The decision was grounded in a clause in the pre-FAR Defense Acquisition Regulation (DAR), DAR 7-1905, Labor Price Adjustment. From the decision: Emphasis added. I have not done extensive legal research. A quick search found only three BCA decisions dealing with the issue. I found only one pertinent Court of Federal Claims decision, the Burnside-Ott decision mentioned in the article. The Court found for the government on all counts in that decision. The Federal Circuit overruled, apparently on procedural grounds, and remanded the case to the claims court. There has been no subsequent decision, so maybe the parties settled out of court. I don't know of any way to find out at this late date following the Federal Circuit's 2003 ruling. There is no indication that the board or the claims court decision has subsequently been overruled on the merits. So if, in fact, it hasn't been overruled, then lotus is "hosed," at least until he can find a lawyer who can win a case that makes new case law, perhaps based on mutual mistake. lotus needs legal advice and should contact an attorney.
  2. In an article in the June 11, 2018 issue of National Review, "Upside of The Upsized," Ike Bannon reviews a book entitled, Big Is Beautiful: Debunking the Myth of Small Business, by Robert D. Atkinson and Michael Lind, published in March by MIT Press. According to Bannon: I love it, because, speaking as the owner of a small business, I'm sick of FAR Part 19 and everything associated with it. According to the description of the book at Amazon.com: I'm going to buy it, even though I understand that the members of Congress will pay no attention to it.
  3. @FrankJon How weird. You string together a series of loosely connected phrases and sentences like a Timothy Leary and then say that you've tried to describe something. It's Friday night and that makes it all right so what have you got to lose? Is that it? You have to work hard to develop an idea and communicate it to others. You are not putting in the work. I have not entertained any of your recent thoughts in this thread, because you have been incoherent. Get some rest. Try again later.
  4. @FrankJon Frankly, I have no idea what you are talking about.
  5. Vern Edwards

    SCA

    That's wrong. The CO is an agent of the U.S. with limited powers. Certain persons in the DoL are agents of the U.S. with different limited powers. The CO has no power with regard to worker classification. He or she merely implements DoL policy. DoL is the ultimate decisionmaker. I know that you are distressed by your situation, and I understand. But we are now edging into the realm of ignorant silliness, so I think it's time for me to say good luck to you and goodbye. I hope it works out.
  6. @PepeTheFrog Pepe, all you have done is repeat H2H's assertion without making an argument in its support accompanied by evidence or based on sound theory. It is not enough to say that something or other is a competitive advantage, you must explain on whom the advantage it works and how it works. Some of you people think you can just say stuff and claim it's true without making an argument in support. Well, you can, but you won't get away with it as long as any of us can think and are willing to spend (or waste) time arguing with you. I'm not going to waste more time on this side issue. Go back and read my post of Monday at 10:16AM and then respond. That, or although it might seem early, perhaps it's time for you to hibernate. Actually, to take H2H's approach, you don't have to do anything, but please don't waste our time with more yakkity yak. (Tony, Did I spell yakkity right? Help!)
  7. Vern Edwards

    SCA

    The fact that the mapping was shown in the proposal is irrelevant. The contractor is responsible for setting its price. The contractor should know whether it will have to conform some labor classifications and knows or should know that the DoL has the final say and might conform the classification to one with a higher minimum wage. It must take the chance, which is a reason to classify/conform conservatively and price accordingly. The agreement between the parties on the contract price is not an agreement on individual elements of cost. The CO's agreement with the conformance proposal does not constitute a warranty that the DoL will approve the proposed conformance or that the contract price will cover the contractor's labor cost. It merely expresses agreement or disagreement with the contractor's conformance decision. Finally, I believe (but am not sure) that the DoL's approval or disapproval of the conformance proposal is the government acting in its sovereign, not its contractual capacity, and the contractor will have to live with it, just as it would if the federal or a state government raised taxes or fees.
  8. See the following at Federal News Radio: https://federalnewsradio.com/defense-main/2018/05/aiming-to-speed-procurements-dod-wants-to-reduce-data-demands-on-contractors/
  9. Yes. That's one relevant question. Let us know when you have the numbers.
  10. Vern Edwards

    SCA

    Right.
  11. Vern Edwards

    SCA

    I'm not interested in offering an alternative. I don't think there is a problem that needs to be solved. The OP asked if the contractor would be hosed. The first response to that question, from someone else, was Yes. Then you proposed a solution. I've been interested in figuring out whether your solution would work. You have obviously taken my questions and thinking to be a hostile challenge. To the best of my recollection the conformance procedure has been around and unchanged for as long as I've been in government contracting. I've been involved in such procedures several times and they were always routine. I never had a problem. I have not heard that it's been much of a problem governmentwide. But lotus is worried about something and wants to know if there is a way out. You have proposed an interesting solution, but one that requires foresight that lotus and colleagues apparently did not apply, and one that raises questions in my mind about CO authority to establish what to my mind would be a new policy. I've explained my thinking as well as I can. I don't want to go on with you about this, rehashing what was and was not said, because I sense a rising tension on your part. I've tried to have a civil, analytical discussion about this, and now I'm done with it. Go on as you please.
  12. Some of you will remember the thread in which our resident agent provocateur, Pepe the Frog, posted many controversial comments about negotiation ethics and tactics. (Said with affection, Pepe.) Well, I was wandering about in a bookstore yesterday (a Barnes and Noble in southern California) when my eyes fell on the following title: Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level, by Sevenius, Burns, and Mnookin (Harper 2018). Dust jacket blurb: "In this groundbreaking, definitive guide to the art of negotiation, three Harvard professors---all experienced negotiators---offer a comprehensive examination of one of the most successful dealmakers of all time." I bought it, of course. While the book is about diplomatic negotiations, at least some of its points and tactics ought to be applicable or adaptable to contract negotiations. In any case, it appears that it will be a fascinating read. You might want to take a browse in a bookstore near you.
  13. Back in the 1970s, I worked for a year as a contract specialist in the Procurement Assistance Division of the Los Angeles District Office of the SBA. My office was in the downtown World Trade Center. My job was helping 8(a) contractors. One of the things that I noticed about the 8(a) Program was that nobody wanted to graduate. They would fight graduation tooth and nail. And once graduated, firms generally did not survive for long, much less succeed, although there were exceptions. The program helped 8(a) firms win contracts, but it did not teach them to be successful business persons and to succeed on their own. We couldn't teach them, really. We were government employees, and no one in the office that I worked in had ever run a successful business. What did we know about it?
  14. Vern Edwards

    Negotiation Skills and Tactics

    "Harnessing the Science of Persuasion," by Cialdini. Harvard Business Review, October 2001: http://www.coachfinder.club/downloads/Influence by Cialdini.pdf It's actually about selling, not negotiation. But it's better than most of what we're reading here.
  15. @Tony Bones You're right about snarky. Damn! But thanks for the spell check. 😎
  16. Vern Edwards

    SCA

    It has everything to do with it in the scenarios that lotus gave us. You have described a different set of facts than lotus described. In both of lotus's scenarios there is no discussion/negotiation of conformance classifications before contract award. Conformance and referral to DoL begins after contract award and is thus governed by the clause. Those were the scenarios on which I based my analysis. It seems to me that those scenarios are the bases on which we should discuss this, but you have chosen a different course. The wording you used to describe what you would do confuses me a little, but I think I get the general idea. You appear to have described a sole source acquisition. The parties would negotiate an agreement about price adjustment prior to contract award and an agreement on price adjustment terms pertaining to the outcome of the conformance process. I presume that the parties would negotiate a special clause to implement their agreement. That might work, it's just not what lotus presented us with. If I were a reviewer I'd ask why you want to agree to such an adjustment when FAR and 52.222-41 do not provide for it. I suppose you'd say something about "fairness." If the acquisition were competitive, then what you propose might work if you described your procedure in the solicitation and did the same with all offerors in the competitive range. I'm sure that the offerors would welcome it. The risk is that you might get an outside-the-scope-of-the competition protest when you modified the winner's contract to adjust the price if the adjustment changed the winner's price standing and raised an issue about the technical/price tradeoff on which the decision were based.
  17. Vern Edwards

    SCA

    So you have a time-and-materials service contract with a number of service employees who must be paid at least the wage specified in a wage determination. Suppose that the contractor decides to conform certain of those employees to the classification "General Clerk 1." The wage rate/hourly rate for that classification is $16 per hour. The CO agrees to that classification and forwards SF 1444, Request for Authorization of Additional Classification and Rate, to Department of Labor (DOL) for review. DOL rejects the conformance and determines that a classification with a wage rate of $20 is applicable. The question is whether the contractor can get an upward adjustment of its hourly rates. FAR 52.222-41 specifies the conformance procedure. The CO's agreement to a conformance, as indicated by signature on SF 1444, is not a contract price agreement. It is just an classification agreement between the parties that is subject to DOL approval. The parties hope, but do not know, that DOL will approve. The Service Contract Act clauses, FAR 52.222-41 and, as mentioned by bremen, FAR 52.222-43, prescribe the conformance procedure and make no provision for a contract price adjustment in the event DOL rejects a conformance agreement and imposes a different classification with a higher wage rate. In the case of the scenario described in my first paragraph, suppose that the contractor asks for a price adjustment. Can the CO agree, as proposed by Carl: Presuming that the contractor read the contract, it knows what the conformance procedure is to be and that there is no provision for an adjustment in the clause that prescribes the procedure. A wage determination does not specify the contract price for an employee's work. No standard contract clause conditions the contract price upon DOL approval of the proposed conformance. The CO's signature on SF 1444 does not indicate that the contract price is conditioned upon DOL approval. Thus, contractually, the government is not obligated to agree to an adjustment. So, even assuming that the CO has authority to agree to such an adjustment, the CO would have to get consideration from the contractor in return. The CO couldn't just agree to an adjustment out of the goodness of his or her heart. He or she would have to get something in exchange. But I question the CO's authority to agree to such an adjustment. The CO would, in effect, be making policy, and I think it would be a FAR deviation, because FAR addresses conformance and makes no provision for an adjustment in the event of DOL disapproval. If I were a reviewer or an approving official, I would reject any agreement to an adjustment. I have not consulted the Service Contract Act literature or case law, and I don't know that I'm right on the basis of rules or past decisions. I'm just thinking out loud, so to speak.
  18. Vern Edwards

    SCA

    Here's lotus's 1st scenario: Note: 1. "No requests for SCA wage conformance are made." 2. "Questions about the proper wage arise. Eventually the decision is made by DoL and hence the contracting officer that $20.00 per hour is appropriate." I don't understand 2. It does not appear that the WD was wrong. It appears that the contractor's link between its workers and the appropriate wage rate was wrong. If that's true, then the contractor is "hosed." lotus's second scenario, seems to be what Carl was addressing. There is a wage conformance, but DOL disagrees with it. I still think the contractor is "hosed," even if the CO agreed with the contractor's conformance.
  19. Vern Edwards

    SCA

    I don't know. I don't necessarily think it would be a deviation. I'm just trying to consider every possible angle and anticipate any possible objection by staff upon review. FAR 52.222-41(c), Compensation, subparagraph (2) discusses the conformance procedure and makes no mention of an adjustment to the contract price if DOL rejects the conformance and requires a higher rate of pay. The only mention of price adjustment in the clause is in paragraph (c)(3), which says nothing about a price adjustment in such a case. FAR 1.102 does not say you can do anything as long as it's not prohibited. FAR 1.102(d) says: FAR 1.102-4(e) says: Well, FAR 52.222-41 does specifically address conformance, compensation, and price adjustment, provides for a price adjustment in a specific instance, which does not include cases such as the one presented by lotus. So how would you explain and justify such an adjustment if someone argued that it would deviate from the clause? I think a CO would want to be prepared to show that agreeing to such an adjustment was in the government's best interest. What would the CO cite as authority on the SF30 under which the adjustment is made. She couldn't cite FAR 52.222-41. It she wrote "mutual agreement," what would she cite for authority to make such an agreement. I'm not objecting to your idea. I'm just trying to think it through. You have to anticipate objections.
  20. The prime contract clause doesn't answer your question, does it? That clause says "similar," not identical. So what makes sense? It seems to me that it makes sense to require the sub to retain records until three years after final payment on the subcontract. If you can't buy that, then ask the DOE contracting officer.
  21. Vern Edwards

    Negotiation Skills and Tactics

    From Kissinger the Negotiator, under the heading Genuine Empathy or Duplicity, pp. 219-222: But how should that inform us about negotiating government contracts?
  22. Vern Edwards

    SCA

    Suppose you do that and lotus's scenario comes about. Would the record of negotiations enable the contractor to get a price adjustment? On the basis of what contract clause or legal doctrine could the contractor lay claim to a price adjustment?
  23. Vern Edwards

    Negotiation Skills and Tactics

    I think some people are making a distinction between what is often true and what should be true, and I don't consider that to be a sign of naiveté. It's one thing to say that people do engage in deception. It is another thing entirely to say that they should. It seems to me that the question at this point ought not to be what people do, but what they should do in government contract negotiations. Does anyone think that people should engage in deception in government contract negotiations? Should contractors try to deceive contracting officers in pursuit of a favorable deal? Should contracting officers try to deceive contractors? If so, please explain what you mean by deception and what limits, if any, ought to apply. If you don't do this, the silly, pointless back and forth that you're having will continue ad nauseam. It's pretty much at that point now.
  24. Vern Edwards

    SCA

    In writing? Have you ever seen that done? Would that be a FAR deviation? I'm not challenging, just asking.
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