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Jamaal Valentine

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Everything posted by Jamaal Valentine

  1. Being clear about each party’s mission and purpose is a great place to start. Fundamentally, parties team to improve their ability to get what they want (fulfill their mission and purpose). Having a clear understanding of mission and purpose can reveal the overlap where teams can come together. For example, the negotiation game where each party wants all the shrimp, but if you talk you’ll find out one party actually needs the shells and the other needs the meat.
  2. Who has noticed the new embedded ‘definitions tool’ at acquisition.gov? You will notice that certain terms are underlined throughout their online FAR. If you hover over the dotted-underlined terms they will highlight in yellow, but if you enable the ‘definitions tool’ it will also show the relevant FAR 2.101 definitions. So far it has been pretty convenient and definitely helps readers know that a special definition may apply. However, readers cannot rely on the embedded underlining as identifying all FAR defined terms because some terms are not underlined (e.g., FAR part 12 unevenly underlines ‘commercial items’).
  3. Why would FAR 36.204 be more on point? Here’s what the OP asked, in relevant part: The OP is asking about the estimated dollar amount in a sources sought notice - not estimated price range. We don’t know if this is an acquisition of construction services. However, the question could seem to involve an advanced notice (e.g., source sought) although that term is not defined in FAR Part 2, 5, 10, or 36. Releasing the budget and/or government estimate in a competitive acquisition makes sense in many cases. I’m not sure what all the concern is about. We should have more in-depth and candid dialogue with our industry partners.
  4. There is not a general prohibition that I am aware of. What supplies or services is the acquisition for? For example, FAR 36.203(c) discusses specific limitations on releasing estimates for construction contract actions.
  5. I like anything that reduces the evaluation and documentation burden or brings us closer to the concepts for the acquisition of architect-engineer services. The government struggles to adequately document their evaluation, comparison, and ranking of all offers. In my experience, the evaluation team can easily select a offeror and offer they like or deem suitable, but they struggle documenting the rationale - especially priced tradeoffs. The burden increases with number of offers received. How can we further simplify documenting selection of the most promising offer? That is where the government seems to spend a lot of time with varying degrees of success.
  6. Compare each offeror and their offer to each other?
  7. @Vern Edwards Not a general proposition. My major systems experience was on the industry side of things. In my Government and industry experience, change orders—in general—take a long time because of formalizing the changes in writing (changes to specs, drawings, SOW), internal reviews, securing funding and routing it in the financial and contract writing systems. I wouldn’t say that a changes clause isn’t needed; its usefulness likely varies from contract to contract. I know the Air Force used an interagency acquisition under the Economy Act to partner with an agency to develop their latest contract writing system. They essentially change things on the fly via mutual agreement.
  8. It seems like acquisition teams (including the contractor) for systems development contracts would rely on regular interactions (not so performance based). A team could quickly* establish and agree to some parameters to move forward with changes and funded amount; especially if the contract or modification uses a firm-fixed unit prices or a time-and-materials structure. After all, bilateral modifications are used, in part, to reflect other agreements of the parties modifying the terms of contracts. This is in addition to making negotiated equitable adjustments. *relative to how long the Government would take to reach internal agreement on what a change order should look like
  9. @Vern Edwards thank you...that’s what I presumed, but I wanted to be sure.
  10. Does it seem odd because you’re thinking it should be a partial termination for convenience, constrained by fiscal years, or something else?
  11. What do you mean that (2) through (5) are directly related to (1)? The semicolon let’s us know they are related in thought, but independent. I’m not sure why you’re mentioning typical service contract to inspect or repair ... I never raised that and only was seeking to better understand something you stated:
  12. Excludes real property as an item (supplies under paragraph 1), right? Construction is a service. What about the other commercial paragraphs? For example, commercial services under paragraph (5).
  13. I provided a link to it in my earlier response to Joel.
  14. Agreed. FAR Part 36 includes concepts and principles that align with commercial construction.
  15. They seem to meet the FAR Part 2 definition to me. That’s not to suggest that FAR Part 12 should be used for FAR Part 36 construction. Where do you find they don’t meet the definition? https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/procurement/far/far_part12.pdf Does FAR Subpart 8.4 include construction? You are correct. I wasn’t commenting on the construction discussion that followed; I was just responding to ji’s commentary up to that point.
  16. If the OP, metrics, is DoD they will use FAR Subpart 8.4 with FAR Subpart 15.4. (DoD Class Deviation 2014-O0011) Also, this can be a little misleading. FAR Subpart 8.4 involves FAR Part 12. “To the extent there is any perceived inconsistency between FAR Subpart 8.4 and FAR Part 12, FAR Part 12 controls.“ (CGI Federal, Inc. v. United States, CAFC No. 2014-5143, March 10, 2015)
  17. Sometimes the sunk cost fallacy or plan continuation bias is hard to overcome even when a new course of action is appropriate. The drafters can take a retrospective look at what happened and use this event to focus on learning and growth. I’m sure they’ll identify areas for improvement (process, tools, decision making, etc.) and not let this go to waste. I know I’ve elevated my awareness of potential issues and things to consider, when communicating, as a result.
  18. Here’s a list of writing awards and examples of winners. Maybe the FAR Councils could host a ‘No Gobbledygook’ challenge and crowdsource a FAR rewrite. https://www.plainlanguage.gov/examples/awards/
  19. Looks like it’s time for me to get an updated copy.
  20. @Gov Researcher, I believe contracting officials must follow FAR based on their delegated authority; however, “[n]o contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.” (FAR 1.602-1(b)) In my experience, agencies wait until FAR implements new laws either through an amendment or some type of deviation. You have responses to your specific questions, but based on the question, I think you’d get some useful information reading these: The Contract Attorneys Deskbook 2020, Chapter 3, Authority The Federal Acquisition Regulations: Answers to Frequently Asked Questions
  21. I’m not against reordering the events; keep in mind FAR 11.002 policy, which states “...agencies shall [s]pecify needs using market research...” It makes sense that we start with an identified capability gap or innovative opportunity that triggers market research. Market research helps determine how we should describe the agency need(s) for synopsis and solicitation purposes.
  22. What’s noticeable is the express exclusions found at FAR 19.304 (HUBZone), 19.404 (Service Disabled Veteran Owned Small Business), and 19.504 (Woman Owned Small Business). ”Orders under indefinite-delivery contracts (see subpart 16.5). (But see 16.505(b)(2)(i)(F) for discretionary set-asides of orders)”
  23. It seems like a procedural step in the contract formation process. For now, let’s agree that’s the contract formation process is as follows: 1. Initiation of want or need 2. Market research (FAR Part 8 and 19 considerations) 3. Describe agency needs 4. Acquisition planning Market research includes determining if sources capable of satisfying the government’s requirement exists and whether the acquisition should utilize any of the small business programs in accordance with FAR Part 19. Presumably this includes checking required sources of supply and services. FAR Parts 10 and 8 logically occur before considering FAR Part 19. (You can’t consider a small business program until you identify capable sources) Skip to FAR 8.004, which reads, in part: ”When satisfying requirements from non-mandatory sources, see 7.105(b) and part 19 regarding consideration of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business (including 8(a) participants), and women-owned small business concerns.” I’m willing to argue that when using a non-mandatory source such as a MATOC, that consideration of FAR Part 19 small business programs is required. However, when the MATOC is also a MAC (multi-agency contract) I think the Rule of Two is applied to the MAC. Agencies are encouraged, by FAR, to consider satisfying requirements from or through MACs before going to commercial sources in the open marketplace. That being said, its long-standing practice to apply a similar response (apply the Rule of Two) to MATOCs and not the open marketplace. Doesn’t seem SBA has an issue with it unless I missed something. If the FAR is silent (at least not expressly requiring) and there is long-standing practice, it might be okay until SBA or the FAR Councils, or legislative branch decide otherwise. This discussion reminds me of the Kingdomware and Latvian decisions and resultant legislation - Things change, stay awake!
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