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  1. Joel, You're being provoked by stolid antagonists, and you've fallen into the trap. You are seasoned practitioner. Heck, you were taking DAU classes in the 1990s when some of these guys were still playing beer pong or worse yet, getting/giving wedgies. There are a lot of unnecessary details in this debate, much like in Congress. But here's the bottom line and these things you actually already know. There is a rather short list of conditions that need to be met to have a legally-binding contract; this is Contracts 101, which I had the distinct pleasure of learning about from a beautiful blonde prosecutor in a night class. Included in that list is competency/clarity of mind/sobriety, i.e., I cannot draft the contract out on a bar on a cocktail napkin after imbibing several Tom Collins with the other guy, albeit I can have a binding contract scribed onto a cocktail napkin in the absence of wide-ruled paper [and] this is the big one, the terms of the contract must be entirely legal, which is to say, not contravening any statute. For instance, I cannot contract to sell you two large shipping containers full of illegal narcotics, nor can we contract with one another to go into partnership to offer a service that aids people in evading state or federal tax law. You get the point. I hope this served as a reminder of the rudimentary, as well as offering some degree of entertainment.
  2. If you a getting a signature from the contractor, why would you need to cite multiple authorities, doesn't their signature cover both the reduction in services, as well as the exercising of the option period at that point? If you just checked 13 E, "required to sign this document..." and obtained their signature, then you really don't need an authority. Your authority becomes the mutual agreement of the parties presumably acting in good faith. That said, the form does instruct the user to "CHECK ONE" and appears to refer to blocks 13 A - D, some of which are fill-ins. No judge is going to ding you if you have signatures from both contracting parties, with or without cited authority or checking any of those other boxes. I know that many COs I worked under asserted that it was always a good idea to cite something incorporated into the contract. Hence, they typically cited the commercial items changes clause. I do not think citing one of these clauses means the specialist did not think about it. To the contrary, maybe they overthought it. Perhaps in most cases it's just the user of the form trying to fill it out per its exact instructions.
  3. I was in a CLP class last month in which the instructor advised us not to include "marginal" as an evaluation factor, but rather move right from satisfactory to fail. Her reasoning was as follows--rarely has she seen an offeror win an award or even make the competitive range when one of their non-price factors has been rated as such. I always though similarly myself. In particular, I have had a longstanding problem with how we tend to describe "marginal" as an adjectival rating. Some agencies borrow the language right from CPARS-- Performance does not meet some contractual requirements. The contractual performance of the element or sub-element being evaluated reflects a serious problem for which the contractor has not yet identified corrective actions. If we are to take and interpret that first line of the rating, "does not meet some contractual requirements," that reads to me as "fail." Satisfactory performance of a contract means meeting all of its requirements. If we state in the SOW, "response within two hours, 90% of the time," then [well] that is what we mean. Eight-nine percent does not cut it. The contractor either performs successfully by meeting the mandatory minimum requirements, or it does not; there is no half-pregnant. Now a contractor can certainly exceed the performance metrics, but "marginal" as a rating has always seemed to me uncertain at best. However, Ji makes a point that offers a whole new perspective and useful application for the marginal rating, which is to say, as a tool of sorts when we are in a trade-off scenario. I realize that "low-confidence" and "marginal" have some distinction from one another. The first being predictive, while the latter seems more so an assessment after the fact. That said, the analogy is there for the taking. I am going to think on this a bit more for now, but I like it.
  4. The overwhelming major of what the Government buys today are commercial items, even when we COs make the mistake of classifying them otherwise. If you work for DOD, maybe you buy some non-commercial items here and there, and big ones at that. For civilian agencies, acquisition of non-commercial items should be quite rare. That said, I recently went through my agency's acquisition regulations (on my day off mind you), reading each one along with their prescriptions. I was [not] surprised how many clauses and provisions are prescribed for all actions regardless of conditions or dollar-amount. Lest we forget, we still employ teams of people to devise this additional language--2080 hours a year minus leave time, God bless them. Please do not misconstrue my words as I am not attacking policy folks, who we so often need. The point I make is how many clauses abound, which is to say extraneous language, that is either already encapsulated in the standard commercial clauses, statutes otherwise incorporated per the Christian doctrine, or which should be widely-known and self-evident, e.g., thou shall not steal. When I put together solicitations, I try to consider that each page adds time and costs, for both sides. Although we talk a good game, contracting offices continue to put out 150+ page solicitations. Concerning my point about the ubiquity of commercial item purchases, I include the following FAR citation as a reminder-- 12.301 -- Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items. (a) In accordance with 41 U.S.C. 3307 contracts for the acquisition of commercial items shall, to the maximum extent practicable, include only those clauses -- (1) Required to implement provisions of law or executive orders applicable to the acquisition of commercial items; or (2) Determined to be consistent with customary commercial practice. The FAR is clear, when another part of the regulation tells us something that contrasts with FAR part 12, the latter takes precedence--fairly straight forward.
  5. Bob, the italics were in select portions. You can remove them altogether, probably easiest. Thanks again.
  6. Carl, my agency publishes a list of deviations that it posts on its website via memoranda, which are signed by the chief procurement officer. The agency-specific invoicing clause at issue is not included within that list of deviations. Also, my agency has its own acquisition regulation that parallels the numbering in the FAR preceded by the number of my agency's designated chapter within Title 48 of the Code of Federal Regulations and followed by "-70" and higher for those clauses for which there are no counterparts. I have reviewed the AS invoicing clause again. There is no codification. It is plainly entitled "Invoice Instructions." So then, I would define the clause as a policy, likely specific to my component, and not necessarily other acquisition offices within the agency. That said, I will move forward and figure out how best to incorporate the clause in the RFP and contract vis-à-vis the invoicing language under 52.212-4(g). We often do what we have to do, as federal contracts and the associated body of guidance are imperfect. Is this an informal deviation of sorts? I suppose it could be considered as much. While that might not be what I would label it, I will not besmirch your attempt to apply an out-of-the-box label or explanation. Having spoken to my attorney, I feel confident that supplementing the commercial item invoicing language is wholly permissible, primarily because we are not seeking to remove any of the language mandated by statute. I think another way to look at this is, what was the legislators' intent and might they have a problem adding a few seemingly essential bits of information to make sure our hard-working contractors get paid on time? If the impetus behind the language to begin with was the Prompt Payment Act, then I would say that answer is a resounding "no," they would not have a problem with it. Thanks, Bob. Whatever you could do would be much appreciated. It does not have to be perfect. Thanks for helping to make my humble words readable to the masses.
  7. How is it a deviation? It is neither an individual deviation nor a class deviation, either of which would require authorization by the agency head. I am not aware that our agency head has signed anything authorizing a deviation to supplement or change FAR 52.212-4(g). Shouldn't the agency head sign a memorandum identifying it as such and authorizing it through her signature? I would think so. Again, I have worked at many agencies and every one had a agency-specific invoicing clause required to be incorporated into all contracts. This seems to me to be a CAAC and DARC issue. They need to get off their duffs and revise the prohibition on tailoring of the commercial item invoicing conditions. How about the increase in the SAT from $150k to $250k, as well as increases to the micropurchase thresholds. The applicable statutes were revised over a year ago. Why does the FAR still say $150k. Some folks are still confused and there are agencies that have not yet gotten around to authorizing class deviations, despite GSA handing them the language.
  8. Retread, thank you. How can it not be a drafting error? Any invoicing clause (terms and conditions) should be all-inclusive? Assume for a second that all I have in terms of invoicing instructions is what is written into 52.212-4(g). This is great guidance for creating an invoice under a uniform format, but where do I send it off to? Each agency is going to have a different physical address and email address/inbox. When we apply the dictionary definition of tailoring as the default definition, minus any definition under part 2, we see that the terms refers to any instance in which one changes, adds to or makes specific for a particular purpose or person. I had a few pairs of pants tailored recently. Sometimes the tailor adds fabric, sometimes they remove, other times they just readjust the seam or cuffs. I am not looking to die on any hill. But I believe FAR part 12 by far (NPI) to be the most important part, as the bulk of what agencies buy or should be buying are CIs. Since FASA and even before, part 12 remains the most applicable part. Part 12 always supersedes, takes precedence over any other part in which it is in contradiction. I know the FAR is an imperfect set of regulation, but 52.212-4 goes in the overwhelming majority of contracts nowadays. It was revised in October 2018. It could have been corrected then. There is also some overall frustration. Since last week I have two separate senior/supervisory COs tell me things such as, "not sure if that can be considered a commercial item, look at the dollar amount," and "ok, we can use part 12 if you want, we don't have to use part 15." Please do not even respond to these last two statements by telling me what I already know. I am simply injecting some morose humor into the conversation. But these comments were made and I shudder. Jamaal, I thank you for this GAO case. I am going to pass it on to some of my advisors. As we can see, the GAO ruled here that tailoring the invoice terms and conditions under 52.212-4(g) is acceptable because the alternate invoicing form was not made mandatory under the contract. Ok? So what shall I do in the case of the agency-specific "mandatory" invoicing clause? Should I say within the contract language that it is optional or discretionary? As Ji already recommended, I will likely just stick it in the RFP a few pages down from 52.212-4 and I am fairly confident it will never become a practical issue. What I am seeking to do here, is have an advanced practitioner's discussion about things in the FAR that don't make much sense and which probably ought to be changed. With respect to the commercial item practices, I intend to release a draft RFP and accept feedback from the industry. As Crescent Helicopters says, "There is no prohibition in the regulation against the granting of waivers following the issuance of the RFP."
  9. I apologize for the strikethroughs in my original posting. I have typed long posts on here before only to have the screen time-out and not refresh. To counteract this, I sometimes type my longer posts/contributions on a Word document first, then cut and paste. Evidently the WIFCon application is not completely tolerant of this approach. I do not have time to retype, so hopefully the readability is not too much an issue. ji20874, to answer your follow up question, all of the invoice content requirements, (i) through (x) are found in the agency-specific invoicing clause. However, the ASC adds some additional requirements, i.e., DUNS number, agency program office designated on the order/contract/agreement, mark invoice as "Interim" (Ongoing performance and additional billing expected) and "Final" (performance complete and no additional billing), and Invoice Supporting Documentation, which is, to ensure payment, the vendor must submit supporting documentation which provides substantiation for the invoicing costs to the Contracting Officer's Representative (COR) or Point of Contact (POC) identified in the contract. Invoice charges must align with the contract CLINs. Supporting documentation is required when guaranteed minimums are exceeded and when allowable costs [I see the inherent problem using this term in a commercial item contract, but again this is boilerplate per agency-policy] are incurred. Again, allow me if I may to highlight what I believe to be the crux of this debate--is tailoring only when you substantially remove or change/revise language to say something else or (as I have always presumed), does the term apply any time one adds new language or affects existing language in any manner?. We all know that when you add something, such as adding condition (xi) after (i) through (x), it can potentially make all the difference in the world. I do not see how adding language to a clause, or affecting it by presenting a different or somewhat longer version of it elsewhere in the solicitation is not akin to tailoring it, aside from that fact that you are not doing it properly by doing it as the FAR permits, which is through addenda. BTW, ji20874, I am a long-time reader, more recent contributor and I must say I have benefited from many of your insights. Without devaluing the contributions of so many other members, I find you to be one of the sharper, more insightful contributors (but don't let it get to your head). I appreciated that you chimed in on this so quickly. ---------------------------------------------------------------------------- Guardian: I just saw your post with the strike-throughs. The software had a hiccup. It's easy to correct but I am on my way out the door. I will fix your post when I am home again. Bob
  10. I request the forum’s input concerning Tailoring of Provisions and Clauses for the Acquisition of Commercial Items the basis of which is the guidance provided under FAR section 12.302. QUESTION #1: FAR 12.302(b)(4), prohibits the tailoring of paragraph at 52.212-4(g) Invoice, which “implement statutory requirements." My agency’s policy department requires the use of an agency-specific invoicing clause. Every other agency for which I have worked has required the incorporation of a unique invoicing clause. Whereas FAR section 2.101, Definitions does not define the term tailor[ing], I believe it to mean the process by which we not only change existing terms and conditions, but also by which we may append or add to them. My legal advisor indicated he does not see a problem with supplementing the commercial item terms as they apply to invoicing, as long as we do not omit any of the conditions implemented by statute; see 52.212-4(g)(1), “an invoice must include [emphasis added] – .” I have seen other COs simply incorporate in full text their agency’s specific invoicing clause, along with the requirements under Contract Terms and Conditions – Commercial Items, rather than through tailoring/addenda. Perhaps there is nothing inherently wrong with this method, assuming the terms and conditions in the agency specific clause do not conflict with those in 52.212-4. However, part 12 seems pretty clear that tailoring of T's&C's already addressed in the commercial item clause are to be effectuated through addenda. To simply sticking another set of instructions having to do with invoicing somewhere else in the solicitation strikes me as a contravention of this imperative. I tend to think that in creating our solicitation document, we should make it quite apparent to our readers that we have thoroughly read and are aware of all the commercial item T’s&C’s, and that any supplementation is done through allowable practices. Perhaps the most important terms included in the agency-specific clause are the electronic inbox, i.e., email address, and snail-mail address for invoice submission. How might the practitioners on this site reconcile the prohibition on tailoring of 52.212-4(g) with the agency’s published policy? QUESTION #2: FAR12.302(c) Tailoring inconsistent with customary commercial practice states the following, “The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures. I am seeking to tailor 52.212-4(a) Inspection/Acceptance to supplement the language in this paragraph with language substantially the same as that found in clauses 52.246-4 Inspection of Services – Fixed-Price and 52.246-6 Inspection – Time-and-Material and Labor Hour. These latter clauses require the contractor to “provide and maintain an inspection system acceptable to Government….” In consulting with my legal advisor, he questioned whether these additional requirements are in accordance with “customary commercial practice,” noting that if a case can be made that they are not, then I have not obtained an approved waiver through my agency as I am required. When I asked what he considered “customary commercial practice,” (“CCP”) he responded in so many words “who knows[?],” implying that the terms may be construed as ambiguous and subject to some debate. He went on to say that there is precedent whereby offerors have some window of time to call into question the tailoring of the clause and assert their belief that the inspection system runs afoul of CCP. Perhaps someone has a relevant legal and/or GAO citation. Do you believe that the inspection terms and conditions described in the FAR part 46 clauses comport with CCP?
  11. Hi Folks, I am here to confront you all with an age-old CO problem, how to get your COR to write and submit a decent statement of work. I have a rather large, high-visibility requirement for services. The COR started out by submitting the previous SOW, with six-year old data. I went through this monster of a document, plastering it with track changes and an abundance of comments. I gave the COR ample time to make corrections, but not too much time. I scheduled the submission of the revised document via Outlook, setting it up as a meeting. The COR initially accepted, but then asked for more time one day prior. The night before the rescheduled meeting, he called me distressed, making it apparent that he had yet again procrastinated. He is halfway across the country from my regular work site. Therefore, bringing him into my office and locking the door to keep him there until we can hammer out all the changes is a non-starter. With the exception of PhD-holding CORs with whom I've worked on R&D contracts, nearly every experience finalizing a SOW with a program office has been lackluster. The IT folks are smart in their own respect, but typically poor at explaining themselves on paper. Most other CORs exhibit significant shortcomings with the written English language. At the risk of sounding smug, I read about two books a week, typically non-fiction and pedantic novels. My first love has always been writing. I realize most people are not going to meet my fullest expectations. Accordingly, I have relaxed them a whit over the years. My director is appalled by what we have for the SOW after months of time. I figure after one spends two days going through a program office's document, offering innumerable comments, it gets the point in which you say, I have served up my best suggestions, the ball is in their court. I have done this dance at other agencies as well. It seems to always play out the same. The director bellyaches that the SOW is the COR'S responsibility. We take it as far on down the line as we possible can before that same director relents, calling me into his/her office to request that I put it in final form. Need I make the obvious comparison to our elected officials who grudgingly and with such pained display surrender the stake of taxpaying citizens? So then, the old standbys are either (1) to rework the document myself, sending it to the COR for approval, at which time they will say, looks great (all the while thinking to themselves, thanks for doing my job for me, sucker) or (2) have my director call their director, which may have some effect, but does little for the quality of our working relationship. I have never understood why the Government cannot employ professional writers to script these documents, particularly when the requirements they describe involve nine-figures of taxpayer funding. Other than these two fallback positions, is there an emotionally intelligent way to handle this that is likely to produce the desired results?
  12. The considered change would be content-based, not stylistic. Allow me, if I may, to adapt the scenario for this forum by describing in hypotheticals. Example: Original Statement of Need: Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 100 of them. Modified requirement: Evaluate a furnished sampling of workstations out of a total of 500 and provide summary reports on 110 of them. I appreciate your venture into cynical humor, but in deference to the season, may we suspend it until the new year ?
  13. By agreement of the parties, a supplemental agreement within scope. I heard back from the contractor. The report we are purchasing is clearly measurable in terms of units, given how we described it in the SOW. The contractor has offered to increase the individual units by 10%. I find that fair consideration for a POP extension of approximately 30-days. While the proposition of a price reduction is always worth keeping in mind, as has been so fluently suggested, consideration may be realized in various ways. The taxpayer sees the headlines. I recently re-read Federalist 10, wherein Madison posits the business of Government is often best left to the specialists. As a CO, I have to consider everything involved in returning funds to our budget office, which is to say, how much of a service I am really doing the taxpayers when we flaggingly pass through the administrative red tape for somewhat modest returns. Ji, the TO does not contain the Government Delay of Work clause, although its inclusion is worth considering in future actions. I judged this acquisition to be for commercial services, meaning the incorporation of that clause would have been optional. Jamaal, thank you for the previous thread. You are the only one who really answered my direct question by pointing me to a case citation/legal precedent. Thanks for reading my words.
  14. I hear you loud and clear, Don. You are preaching to the choir on that one. I have fought the good fight for long as I can remember. However, the cost of this report is such that the juice just ain't worth the squeezing. Put it this way, it otherwise should have been placed on a micro-purchase card. The story is convoluted and mostly uninteresting, but the end result was my recruitment to the effort. My position at this point is by and large to preserve the integrity of the component and my appointment. To strike some reasonable balance, I thought we could agree to them upgrading the product by at least a modest degree. We have spent enough time doing this; us "smart ones" have come to realize there are some occasions to flail fist and others when it best to play coy and strike a deal.
  15. They are last year's funds. I only stand to get them back if I Terminate for Cause (it's a commercial item). No one on the program side is going to care about a reduction in price at this point. That is why my mind was going the direction of a supplemented product/service. No, I do not think it's excusable.
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