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Jamaal Valentine

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Everything posted by Jamaal Valentine

  1. I’m not sure if the contracting officer could or should include such a requirement? What’s the reason for inclusion? Is the requirement even enforceable/appropriate since it appears to be under a competitive RFP issued to commercial sources in the open market?
  2. I’m not sure that we’re clear. Some posters have suggested issuing a modification citing a changes clause and others have stated changes in site availability could be done as a sovereign act. In your scenario, is the government acting as a contracting party or a sovereign? If its as a contracting party, which is what I presume, contractors can rely on the terms of the contract and can argue that the change is not within the general scope of the contract and the changes clause (e.g., changes (1) Description of services to be performed; (2) Time of performance; (3) Place of performance of the services). As previously stated, I believe there are arguments for and against such an action being within scope. However, making the site unavailable can make contract performance untenable. This can raise arguments for a governmental breach of contract. My point is that there are arguments for and against it being within scope; and how best to incorporate the new requirement. I wanted to pull on the string to see where it went. Who knows what the courts or board of contract appeals would find? To be clear, I like the approach and argument ji posted. The question is how to go about incorporating it into a contract: as a contracting party via a formal modification in a way that could survive a dispute (e.g., change in the statement of work or clauses); or incorporating compliance operative of a sovereign act.
  3. @WifWaf Scope analysis differs in bid protest forums and contract dispute forums and you have referenced a bid protest. Can we first agree on the common factors used to determine if a modification is out-of-scope [of the contract]? 1. Changes in the Function of the Item or the Type of Work. 2. Changes in Quantity. 3. Number and Cost of Changes. 4. Changes in Time of Performance. 5. Acceptance of a Change. The new COVID clauses add new requirements that remain indefinite. These indefinite requirements evaluated through the lens of contractors—not wanting the additional responsibility of performing and funding the new work—could be argued as out of scope. Also, what is the consideration in this modification action? I presume monies, but how much? What is the government’s estimate for the new obligation? (Thinking ADA)
  4. I believe @Retreadfed is concerned that nothing expressly requires the predecessor contractor to identify which employees are in danger of losing their jobs because of the loss of the contract.
  5. @Retreadfed, Would you agree that the contracting officer and successor contractor are provided enough information to find out who may be affected? Successor contractors have done so in the past, in my experience. I guess we can always find a problem if we look for one. But you are right in that the FAR Council has an opportunity to clearly address the perceived flaw. @FAR-flung 1102 I mentioned 52.222-17 after Retreadfed brought up the old EO. It’s the one I think was in effect at that time. I could be wrong.
  6. Change orders are unilateral. Period. Otherwise they are just supplemental agreements (e.g., bilateral). Because the plain language doesn’t confer any authority. In fact, it restricts authority. Not in my opinion. However, scope is much broader than that (scope of the competition; and scope of the contract). The changes clause talks about scope of the contract and your question involves scope of the competition. I wasn’t leaving. I was just thanking you for further explaining your thoughts so that I could follow. My disagreement or agreement was irrelevant; I just wanted to better understand and learn something. Again, thanks and Merry Christmas.
  7. Based on your earlier post, I was assuming you were talking about change orders (i.e., unilateral actions), which would nullify 52.212-4(c), which I don’t read as an authority anyway. As for the 52.243-X clauses, those clauses only permit the contracting officer to “make changes within the general scope of this contract”…I think one could make reasonable arguments for and against inclusion of the new terms and conditions being in scope. Thanks.
  8. Have you read the entire clause and its prescription? If not, I think you should before we go on about it.
  9. Okay, so what ‘changes’ clause do you believe is applicable (i.e., provides authority for the mod in ji’s scenario)?
  10. What about 52.222-17(d)? “(d)(1) The Contractor shall, not less than 30 days before completion of the Contractor’s performance of services on the contract, furnish the Contracting Officer with a certified list of the names of all service employees working under this contract and its subcontracts at the time the list is submitted.”
  11. @WifWaf Typically, authority to change a contract follows basic sources of authority to contract: constitutional, statutory, regulatory, and delegated [actual] authority (including contract terms and conditions). When a contract is formed the authority to make changes is narrowed, but surely the authority to change a contract need not only be based on a Sovereign Act or a contract clause, right? Help me understand what you are talking about or thinking in your most recent post.
  12. I wonder who the PIL’s target audience is within the DHS? I know a lot of people outside of DHS reference their work when making arguments for or against a practice.
  13. Do you mean the example I provided of the assertion/guidance found in the PIL Workbook? Why is it inapt? The Workbook’s technique doesn’t qualify or provide rationale for its assertion. Moreover, nothing in the FAR system—that I’m aware of—requires ratings so the technique is not a novel idea for limited application where the limitation would clearly make sense. Comparative evaluations are not limited to direct comparisons without ratings. I’m not sure what you have limited your discussion to but, comparisons were first mentioned in the eighth post and the original poster mentioned comparison language in the ninth post. The comparisons mentioned related to qualitative evaluation of responsibility type factors (e.g., not pass/fail or unacceptable/acceptable). I assumed, seemingly correctly, that the original poster was under the belief that comparative evaluation [of factors] weren’t allowed under FAR part 15. The original poster’s reference to the PIL Workbook is not surprising even if you believe it’s misapplied.
  14. I believe this comment is based on common guidance from policy offices and other authoritative sources. The Procurement Innovation Lab (PIL) stops short of saying that comparative evaluations are prohibited and states that comparative evaluations are “Not recommended for use under FAR part 15.” I believe the problem comes from the lack of a standardized definition and usage of the term. After all, it should be clear that comparisons are commonly used if not necessary in any competitive acquisition … FAR 15.308 and the DOD SSP expressly talks about comparative assessments and analyses. So what do you mean when you say ‘comparative’?
  15. I’m not against relocating it…especially, since I didn’t get the ‘yes’/‘no’ voting button options that I wanted. (I originally wanted a quick and easy view of how many votes for ‘yes’ and how many for ‘no’.)
  16. @C Culham 41 USC 1906 and 1907 limit what new laws (Executive Orders are not law, but have the force and effect of law). “A provision of law described in subsection (d) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of law required by paragraph (1) unless theCouncil makes a written determination that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of commercial products or commercial services from the applicability of the provision.” (41 USC 1906) Also, DFARS 212.301 and the DFARS convention govern what clauses are applicable to commercial item acquisitions. For example, DFARS prescriptions usually say something like “Use the clause at 252.XXX-XXXX, Title, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items…”.
  17. Does DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors, apply to solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items (services)?
  18. 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.
  19. 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’).
  20. 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.
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