onliberty

Vern, I must be misunderstanding you. We must be talking past each other. Assuming I’m understanding you correctly, I completely disagree. I would never advise a CO to use some general reasoning for a modification when the specific reasoning is contained within that very contract. Clauses are put into contracts because the parties anticipate things might come up that those specific clauses address. When one of those things does come up, we say, “ah, we have anticipated this and put this clause in the contract for precisely this reason.” Then, when we modify the contract, we cite that clause. Now, if something comes up that wasn’t previously anticipated, maybe there is a clause in the contract that addresses it, maybe there isn’t. If there isn’t, then we rely on some means outside of the contract, such as statute or general contracting principles or whatever. But that is our second best option. What I’m reading is that you think it’s “dead wrong” to cite the clause in the contract that addresses the very action you’re doing. It sounds to me like you’re saying because the SF30 uses the word “authority” in section 13C, and because the authority to enter into bilateral modifications in commercial contracts technically doesn’t result from 52.212-4, it’s “dead wrong” to cite that clause in that box even though that clause was written and included specifically for this purpose. It seems to me you're saying it’s wrong to cite the clause because it doesn’t technically comply with the strict, technical definition of one word in the instructions on the form? A form to which you even state you’re not sure why it was written that way? The form is a means to an end. I feel like we’ve totally lost sight of the forest for the trees again. Wouldn’t it seem more reasonable to simply say you wish they would have used a word other than “authority” in block 13C rather than go against the plain basic intent and established best practices of contracting?

Don, I had to remove my avatar, because that philosophy doesn't seem to be welcome here. I will tell you I retract my bemoaning of entering bizarro-world. I think it's good to enter there sometimes. I know I've learned a lot from reading discussions such as these, and if the respective parties hadn't taken the arguments into bizarro-world, I probably never would have known where reality ended and bizarro-world began. So it's good to engage in these intellectual hyper-theoretical discussions that have no real basis in reality, but by being exposed to them, you at least know when you've left reality. That in itself is very educational. As for your deal, how about we compromise and do both? We will recognize there are bizarro-world weirdos on here (which includes me) and thus always write with Don Mansfield's linguistical preferences firmly in mind , and we'll practice the skill that's essential for any hermeneutic and read with discernment, recognizing that context is the best interpreter. If we don't at least commit to this, then no matter what we write, even if it's 10 pages of dense legalese full of every qualification imaginable, we'll be sure to find some semantical (I made that word up) disagreement, pull it out of context, and we'll be in bizarro-world every time! I read things on here all the time that, if I were to get super-technical, I could quibble with, including what you and Vern write. But I understand the milieu and recognize sometimes people speak colloquially. You know, like a conversation? Don't get me wrong, I see the value of ensuring common interpretation and clarifying things that sometimes require more precise definitions. But there's a difference between that and claiming someone is misinformed, hasn't checked their facts, or has used erroneous reasoning just because they answered in a way that didn't use the exact words in the exact order that I would have preferred. Let's let common sense, if not prevail, at least have a seat at the table. And Don, believe me it's nothing personal. I appreciate your style and of course your knowledge!

Don, How about we try this: 1. You or I (hereafter "we") read a post. 2. Within that post, there is a word or phrase we take umbrage with. 3. We remember we're reading a discussion forum and not a carefully crafted, technical legal document. 4. We go back and re-read entire post (including previous posts for context, if necessary). 5. We see if we can discern the overall point the entire post is trying to make (considering context). 6. We check to see if our umbrage goes away, even if we remain slightly annoyed at poor author's unfortunate (and clearly idiotic) word choice. 7. If (6) proves successful - we offer our clarifying remarks. They will be welcome and beneficial. 8. If (6) proves unsuccessful, we go back and re-read step (3). 9. If (6) still proves unsuccessful - we ask for further clarification about what the overall point of the overall post was (while trying our hardest not to not scream the poor fool into oblivion for not "getting it.") Deal?

Don, relax. I didn't mean any offense. Just an attempt to lighten the mood. But those clauses don't do a lick unless they're actually in the contract.

Vern, "So if you want to be 'clean,' why would you cite 52.212-4(c ) in SF 30, Block13C, as authority to make a change by mutual agreement?" To your point, the clause, and thus the contract, require that mutually agreed-to changes be written. The SF30 is your written agreement. You (well, me - you can do whatever you want) cite 52.212-4 to clearly demonstrate that this mutually agreed-to change is done in a way that complies with the terms of the contract. I'm curious - as a practical matter, what do people put in block in 13 (it may not be 13C) of the SF30 when executing a bilateral change to a commercial contract? Citing 52.212-4 is not wrong (despite the seeming tone of this thread) and is one option. There are certainly other options. I would argue that 52.212-4 is the best option, but I wonder what other people do and why.

Don, I completely understand your point (and Vern's and Joel's). I agree with you! I'm making a separate point. The point I was making is that authority comes not from the clause, but from the contract. True or false: If 52.212-4 is in the contract, the CO has the authority to negotiate a bilateral change? (I know what you're going to say - the CO has that authority regardless - I get it!) If 52.212-4 is negotiated into the contract, then the contract itself gives the CO the authority to make the changes - yes, this in addition to the authority he has anyway just by the nature of a mutually-agreed to change. If you're going to negotiate a change to a commercial contract, in the modification, cite the authority the contract itself gives you - in this case 52.212-4. This is much cleaner than saying, "because I can anyway." And of course this principle is true of any clause. The clause itself never gives the CO authority to anything unless it's incorporated into the contract. And then the authority comes not from the clause, but from the contract.

Here's an example of how to make the same point without entering bizarro-world. Imagine I'm Don (*puts on fake scruffy beard and looks really angry*) (as Don) "onliberty said. 'the authority for changes is in 52.212-4.' While this is true, I think there is an important distinction to be made that can be valuable in teaching us all the differences between commercial and non-commercial contracts. In the commercial world, mutual agreement of the parties is all that is needed to modify the contract. No express contractual authority is required. Oh, and I love onliberty's avatar."

Vern, Thanks, and yes I get that. I fully understand that in the commercial world, mutual agreement of the parties is all that is needed to modify a contract. The only point I was trying to make, in relation to mtclymer's question, is that if it's a commercial contract, 52.243-1 shouldn't be in there. Instead, 52.212-4 should be. Then, if he wanted to execute a formal mod, in block 13 of the SF30, instead of just stating "mutual agreement of the parties"(which he could do), it's best practice to cite the specific authority from the contract itself, that is, 52.212-4. I'm a firm believer that specific is always better than general. If the contract itself gives you specific authority to do an action, use it! ---------------------- *steps onto soapbox* And the why does matter. It's a valid question. Why would a CO ever take out that paragraph, especially since the FAR says not to do it? Why would a CO take out that paragraph if it's a completely neutral change? The reason that paragraph is in there, is because the FAR is designed (I use that term loosely) so that contracting officers should cite the contract itself (to the extent possible) as their authority for changes. This keeps things clear-cut (to the extent possible). Entering bizarro-world and speculating about weird "what-ifs" that would never happen only muddles the issue and confuses everybody. (See how many qualifications I have to put in front of every single thing I say?) *steps off of soapbox* ------------------------------------- All that said, I totally see the value in clearly delineating the difference between changes to commercial contracts and non-commercial contracts (but is there a way we can do it without entering bizarro-world?).

Vern, I'm not sparring. Why would a CO take that paragraph out? Whether it's in or out, the responsibilities of the parties remain the same. And I answered the question the first time he asked it. I said, "And obviously if both parties agree to change the terms and conditions, there is nothing preventing them from doing so."

Don, I thought you meant if the clause itself wasn't included. I didn't realize you were getting into weird hypotheticals. Why would a CO take that provision out? FAR 12.302(c ) states, "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 [except by waiver]." It's customary commercial practice that if both parties agree on the changes, they can make changes.

Don, That clause is a "significant or deeply ingrained strand of public procurement policy," so I would say even if it were left out, it would be read-in via the Christian Doctrine. And obviously if both parties agree to change the terms and conditions, there is nothing preventing them from doing so. But, it's just good contracting practice to cite your authority from the contract itself, so if changes need to be made, the CO should cite the appropriate clause, in this case 52.212-4 if it's a commercial contract.

"This has thrown me for a loop...I've been thinking on how I can miss your point. Or maybe your point is that there's not point to whether the changes clause is in the contract or not..." mtclymer, I certainly don't mean to speak for Joel, and I'm sure he'll answer you himself, but I think he was pointing out that in commercial contracts, the authority for changes is in 52.212-4. 52.243-1 is only applicable to non-commercial contracts.

napolik "Later, I learned to read very carefully cover letters accompanying bids and proposals to assure there were not words buried in them that modified the content of 'technical' proposals' and of solicitation Ts and Cs." For this reason (among others), I like to tell contractors not to include any information that is not part of their actual proposal. I don't care about your cover letters, your business-development history, how awesome you are, or how fancy your colored charts are. In addition to wasting the Government's time, contractors are hurting themselves because they take up 10-20 pages of the page limit of their proposal. If it's not directly pertinent to meeting the terms of the RFP, don't include it. They hardly ever listen though.

Did you look at any of the alternates to 52.243-1? If it's a services contract, Alternates I and II also allow for changes to "the description of work to be performed." Could a change in the period of performance, from a Contracting Officer-caused delay, count as a change in the description of work to be performed?

Vern, Yes, thanks. There is a lot that goes into it. We as COs have to balance giving the losing offeror as much information as we can with also protecting the proprietary info of the other offerors. My agency chooses to strike that balance by following the processes I've described in my previous posts. If other agencies strike the balance differently, good for them. Regardless, the way we do things today might change by tomorrow.

Retreadfed, I agree with Don too. I'm not sure if you've read the entire thread, but if you do you will find the context. Somebody asked what our process was for debriefings. I explained the way I do it and the rationale for why. That's it. I never stated anything was mandatory or law or required or even preferred. I don't know what agencies people are from, but everything I'm saying is straight out of the FAR, the DoD Source Selection Procedures, GAO case precedent, and my agency's interpretation and implementation of those documents. Nothing novel. Nothing unique. If your agency (or anybody else's agency) interprets and implements them differently, great. I very highly recommend that you follow your agency procedures. Also earlier in the thread, I stated I provide everything in FAR 15.506, which includes the technical rating of the successful offeror only and any rankings, if any were developed (this is pretty rare). None of the ratings of the other offerors are provided. The FAR explicitly says that the debriefed offeror gets only their own past performance ratings. If you do LPTA or PPT, there's not much else to give them. I'm guessing 90% of the readers of this forum, if they ever do a source selection, will do it either LPTA or PPT. As for questions of whether or not we complied with the evaluation criteria, if it's LPTA it will be apparent by the price and technical rating of the winning offeror. If it's a tradeoff, regardless if their price is higher or lower than the winning offeror, we explain that any potential tradeoff either was or was not enough to overcome the price premium.

Don, I would say for a few related reasons: 1) The losing offeror wasn't rated against other offerors. They were rated against the evaluation criteria. So we debrief them on how they fared against the evaluation criteria. 2) The FAR prohibits a point-by-point comparison of proposals. Revealing other offerors' ratings could very easily digress into comparing and/or debating features of proposals. 3) And similarly, the FAR prohibits revealing protected or privileged information, some of which could be discerned from other offerors' ratings (for example, quality ratings).

Vern, I fully understand your point and your argument. And really, I think we agree on just about all of it. I'm no apologist for GAO and I get that their opinions are advisory only (although it's a rare day that anyone has enough top-cover to go against them). And I totally agree about them being the author of the very confusion they claim they're trying to clear up. It would almost be funny if it weren't so dang annoying. I was speaking forest-level, you were speaking tree-level, but I think we actually have the same opinions. You just seem to prefer more precise semantics. I agree words and definitions are important, so we need to use them correctly. I was just trying to make a larger point at the moment so I may have been guilty of using imprecise semantics. Perhaps I misled you, but I also think you missed my main point. I never "[Referred] to the GAO's statement about the purpose of debriefings as if it had some legal force." In fact, I explicitly stated the opposite. I closed that post by saying, "Obviously there are very few hard and fast rules and each agency/office may do things differently, but I've found this works well for what we do." Regardless, I've thoroughly enjoyed this debate and have learned a lot from it, so thank you!

ji20874, Yeah it came through a little confusing. It would have been more clear if the 3:01 posting was first, followed by the 12:58. The reason we strive so hard to communicate clearly, keep offerors informed, be transparent and prepare well throughout the entire process is because of the limitations described in the 3:01 posting. Because we can't divulge other offerors' ratings, it becomes that much more important that we freely divulge what we can release, but have typically been hesitant to - like the government estimate for example. The key, I think, is knowing exactly where the line is between what we can release and what we can't. Then, release everything on the releasable side of the line. Don't be cryptic or coy. Just tell them what you can tell them, and explain that you can't release ratings of any other offeror. They'll recognize you're being straight-up and they'll appreciate it. The way I look at it, we should be preparing for debriefings from day one of the acquisition. If we wait until the end to start preparing, we've missed a thousand opportunities along the way to demonstrate that we're sincere, transparent, and we pay attention to detail. If the losing offeror has no idea what we've done along the way or how he's been evaluated, of course he's going to be suspicious that he's been evaluated incorrectly. So we nip that in the bud from the very beginning. If the offeror has confidence in the process and the Government team evaluating them, I've found that they're not nearly as preoccupied with the other offerors' ratings anyway.

Vern, Noted, and thanks. I assure you no offense was taken! Iron sharpens iron - it's how we all learn and improve. That said, the point remains. This is actually one of my biggest pet peeves with Government contracting. We get so wrapped around the axle that we lose sight of the big picture. Why we do something matters. If we ignore why we're doing something, we inevitably mess up how we accomplish it. You may think the why of debriefings is irrelevant. I don't. I hate the fact that in Government we have totally lost sight of the forest for the trees. Sometimes GAO is my ally in this, sometimes they aren't. So, zooming out to the forest for a moment, the point remains that GAO decisions inform practical implementation of the FAR and agencies react accordingly. It's a moving landscape. The bare-bones language of the FAR may be interpreted differently as time goes on as we learn from our mistakes and make new ones. And, I'm not so sure GAO hasn't "held" it. This isn't simply the opinion of some lowly attorney in some back-woods office. This holding (if I may be so bold) is the basis for the concept of "extended debriefings." Entire agencies are moving out on this, which is a major paradigm shift in how debriefings are accomplished.

Vern, The facts you post are interesting and useful. Thanks for posting them. As for your editorial, I respectfully disagree with some of it. "Don't believe everything your lawyer tells you or states in a memo, and don't pass it on, like a bad cold or the flu, until you've checked it out." You seem to have overlooked the fact everything I said was true. Nowhere did I say I believe everything my lawyer tells me and nowhere did I say I didn't check it out. If someone were to do those things, I would agree that would be silly behavior. As it stands, I did check it out, found it to be true and useful, followed it, and found it to be helpful. Curmudgeons notwithstanding, I will continue to pass along true and helpful information to help others navigate the complex world of Government acquisition as others have helped me. Regardless of whether GAO is a "real court" or not, their decisions still serve the purpose of implementing statute by building the body of common law. The FAR implements the skeleton of statute and case precedent helps flesh it out. It would be foolish to ignore sound legal opinion and established case history. As for your statement, "The notion that government people can help offerors improve their proposals is something of a laugher, since the government folks don't do all that well with their own solicitations." On this I agree. And that's another benefit of doing debriefings with purpose and integrity - we as the Government can learn how we can do it better.

Vern, I'm not a lawyer so I cannot speak to "held" vs. "in dicta." However I can tell you that our Legal advisor explicitly used the word "held." My sentence below, "GAO has held that the point of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future," was literally cut and pasted from email correspondence with JA. The guidance came from AWD Tech., Inc., Comp. Gen. Dec. B-250081.2, 93-1 CPD (para) 83, at 6, n.2.: "The primary function of a debriefing is not to defend or justify selection decisions, but to provide unsuccessful offerors with information that would assist them in improving their future proposals." Perhaps a more precise rendering of the statement above would be, "GAO has held that the point primary function of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future." Cheers.

ji20874, Everything is definitely tailored. GAO has held that the point of debriefings is to allow the unsuccessful offeror to improve their own product and have a better chance of award in the future. Therefore, the focus is only on their proposal and they get very little, if any, information about the other offerors, successful or not. So we tailor the redactions of all the documents so that each offeror only sees their own information. They don't get any information about other losing offerors and the only information they get about the winning offeror is their name and overall total evaluated price - no other ratings, unit prices, strengths, weaknesses etc. If a tradeoff was considered we simply say *if* there were any differences (we typically don't confirm whether there was or not) it wasn't enough to overcome the best value gained by the winning proposal. Obviously there are very few hard and fast rules and each agency/office may do things differently, but I've found this works well for what we do. But we always make sure we have heavy Legal buy-in regardless of our approach.

ji20874, Not sure exactly what you're asking or to whom it's directed, but what I usually do is provide all offerors their own rating charts at each step of the process (after initial evaluations and prior to requesting final proposal revisions). That way they can see how they've been rated along the way, where the movement was, and how to revise their proposal. It also gives them insight into how the Government is rating them in case they think we've missed something. (It's also a hedge against protest risk because we don't wait until the end of the process to give them a peek into our evaluations. This way the "known or should have been known" criteria in FAR 33.103(e) is met earlier). Then, after conferring with Legal, during debriefings we provide them a redacted copy of the SSDD and a redacted copy of the Final Decision Briefing to the SSA. This way there are no surprises when we explain how we rated them because they've been told every step of the way and we've proven that we're transparent and our processes are above reproach.

Vern, I agree wholeheartedly. When I do debriefings, I explain the limitations of FAR 15.506, but also sincerely let them know that I will share absolutely as much information as I can. I use similar reasoning to you: if they're going to discover it through a protest anyway, might as well tell them now, so long as it isn't specifically prohibited. I've found this process beneficial because 1) the offerors are reassured that you're sincere and are not hiding anything, and 2) they can tell that you're prepared, knowledgeable, competent, and confident. This is usually enough to assuage any doubts they may have had about the integrity of the process.