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FAR-flung 1102

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  1. If DoD, see also https://www.acq.osd.mil/dpap/policy/policyvault/USA005039-13-DPAP.pdf
  2. I'm watching to see what will become of the Open DFARS Case 2019-D034, Preference for Commercial Construction Services, which has not had a status update since April 2021.
  3. GABE, When is notice not required by FAR 5.101?
  4. Krimz, Things might be a little easier if it's the case that both are Defense Agencies (within DoD), so please let us know if that is the case...
  5. Thanks All for hitting the target very well. Vern, you for prompt me to renew discovery of that SOW preparation guide. Not too long ago I had the same concern that formerfed brought up (needless overlap between work statement and CDRL) and found that SOW preparation guide by serendipity. The guide did help me with that issue...yet it left me to wonder why I had not seen it years earlier in training or topical resources on in some other breadcrumb trail. When I checked out the guide I was happy to see that earlier revisions are also available, so at least through comparison I can learn a little of the history of things. I'll also check out the other links. Joel, you nailed an immediate concern...the need to clearly and simply establish the performing party. As for elimination of shall statements, I think I may have some unlearning and unwinding to do.
  6. Joel, would a list under the heading Contractor Duties, each of them in a numbered paragraph (and maybe with sub-paragraphs as well), all using the active voice and no shall statements, fit what you are describing?
  7. Thanks. So, I just now got an online version of Bryan Garner's Legal Writing in Plain English, Second Edition. It has an entire section titled, "Delete every shall."...it comes with exercises, too.
  8. I no longer think that. You're right, I had not been going with FAR definitions...and I've been taught in the past to check on that to! Thank you. I'll do my homework better. That's a quick lesson...
  9. I really like the effort to do the Government's business in plain language, but find myself foot dragging rather heavily on a major tenet: The historical Government use of "shall" vs the plain language use of "must". Please first see https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/ I've reviewed quite a few draft work statements over a number of years. It's easy to spot and deal with a lot of ambiguous wording up front. I won't say anything more about that. My concern is with the ambiguities which can emerge later during performance as unforeseen circumstances arise (to be clear, I'll call these, latent ambiguities). I'm of the opinion that widespread replacement of the term "shall" ("the contractor shall") with the the command "must" ("the contractor must") in the spirit of implementing plain language in work statements, would have a downside not touched upon in the linked article. I think that using "must" in place of "shall" in work statements would run a considerable risk of prompting thoughtless or given human nature, even sometimes malicious, compliance on the part of the contractor in situations where latent ambiguities arise. Let's contrast the two approaches: First, let's consider the current commonplace contracting environment with the contractor performing under a "shall" statement. When the contractor encounters, due to previously unforeseen circumstances, a latent ambiguity, my view is that the contractor is more inclined to turn to the Government for clarity before performance and this can more quickly result in simple resolution of a latent ambiguity. In fact, the contractor might even see foresee the circumstance earlier than the Government, for example when reading through the work statement with the Government at a Post Award/Pre-Performance Conference. Next, let's consider a contracting environment where the government routinely prepares a statement of work with many, perhaps hundreds, of "the contractor must" statements within the statement of work. By using "must" the Government is being both more definite (though not necessarily correctly so) and less open to other considerations. A contractor faced with the same latent ambiguity may see (indeed may actually have) less need to seek clarity from the Government before performance. The full result of the latent ambiguity will surface only after performance and given the conventions of contract interpretation may be the Government's responsibility to bear. When iterated for years over many performances on many contracts, I think the cumulative effect of a decreasing use of "shall" and an accompanying increased use of "must" would be significant and not in a good way. The risk of harm from latent ambiguities seems to me to be both greater and more common than the incremental benefit from any amount of Government wins before deliberative bodies that could reasonably come from universal adoption of "must" over the current use of "shall". Maybe the chief benefit of "must" over "shall" is an avoidance of conflict that I have yet to see and understand. If any of you see that as the case, then please help me see how it is so. Otherwise, it would seem that the linked article should really be counter-balanced by the kind of marginal analysis I've hinted at in this paragraph. Even a little practice in this field will quickly show us that it is hard when preparing work statements to adequately cover all situations that could arise, whether in the fog of war or other emergent conditions. So, latent ambiguities in a work statement are both a hazard and a fact of life. Prevention measures against latent ambiguities in a work statement (by way of spending additional time to consider more careful, particular language, yet avoid pedantry) will have a modicum of success, but will also serve as a time sink, a cost to be paid now toward an uncertain benefit to be paid back later in greater or lesser amounts, and as such would not and should not be a 100% solution. if we're efficient and smart we'll always recognize this ever-present tradeoff...and so we don't want to just assume away the harm from latent ambiguities. It will always be with us to one degree or another, to serve as a counterpoint to any agressive use of "must" language in the work statements written by the Government. i understand that what I have stated is largely notional and I haven't provided evidence, but what else is weak with this thinking? We really are faced with this decision and, unless i've missed something, we aren't likely to get meaningful data for a while... What will you decide to do? Why?
  10. Guardian, if your agency's specific statutory authorization is not a help, you may want to check out what the DoD Financial Management Regulation (FMR) has to say about miscellaneous advance payments. It includes the exception that you have mentioned for subscriptions to periodicals, among other things. You'll find it in Vol 10 chapter 4. at https://comptroller.defense.gov/Portals/45/documents/fmr/current/10/10_04.pdf.
  11. A few ideas. Read, think and think again. Seriously consider volunteering for the assignments that others don't want. Learn something (strike that, learn everything) well enough to share it with others. Look for opportunities to do so. You'll gain more than one skill if you do that right. Repeat often. Pick a special skill to focus on and do that better and more reliably than anyone else. For example, for a newcomer taking exceptional notes and minutes can come in handy. Agreeable to who is running a meeting with a contractor, be the note taker... Arrange to distribute a draft for correction and follow up with a final version. Pay careful attention to details like dates and actions for follow up from each party. Find out whom to in include in the Distri (contractor?). Record everything you learn now as a newbie so you can be a help to the next newcomer. Do your homework...before asking a question look for answers...you may find what you are looking for or it may help you ask a better question. See here:
  12. https://www.govexec.com/management/2022/06/white-house-just-pulled-its-nominee-fill-still-vacant-job-federal-procurement-chief/367921/
  13. I have a bone to pick for some of the sharp tools that might have been included, but instead are lacking in the typical assortment given to the Contracting Officer when they deal with nonconforming services. As I understand it, the 2-in-1 Invoice most often used in WAWF (Wide Area Workflow) for FFP Services, does not allow for partial acceptance (it's all or nothing) on invoiced quantities. And often the Unit of Issue modeled in a template or routinely used for the sake of convenience in a line item is "Month" instead of something that might allow for acceptance of lesser quantities such as "sq. feet" or "acres" to give just two examples. I've seen a procedure to make a Govt estimate ahead of time based on such useful measures, but still accompanied by a suggested CLIN structure that specified "month" as the unit of measure...go figure? Let's think it over. What kind of signal are we sending? What kind lessons might be learned by the contractor if the Contracting Officer does not have the readiest tools available to deal promptly and effectively with nonconforming services which fail inspection and for which reperformance is not possible?
  14. If Govt was of the opinion that discussions are most likely, but not most desirous, could the Govt truthfully include "the Govt intends to conduct discussions" in the solicitation?
  15. Thank you, Vern, the history prior to DCMA is almost all news to me. Knowing this backstory will help when I'm facing divergent views on a need for COR Appointment in DoD where particular facts about a requirement show it might be wise to appoint a COR, but is it's still not required by DFARS PGI 201.602-2(d)(v) (a) or (b), for example a supply contract without reimburseable line items.
  16. You did not state, but I will assume for a moment that you are with DoD and that this is a locally issued IDIQ contract. If so, then why not be satisfied with appointment of a COR at the contract level and not appoint a COR at the order level? See DoDI 5000.72 Section 3, specifically the pertinent parts of paragraph b and c. "3. POLICY. It is DoD policy that:... b. Contracting officers will designate a COR for all service contracts, including construction, unless the contracting officer retains and executes contract oversight responsibilities..." "c. A qualified COR is designated for all contracts or orders placed for DoD requirements, regardless of whether or not contract actions are executed by a DoD or non-DoD contracting officer"... Emphasis added.
  17. So, to make clear for folks who have not run across this before, the FAR Council is pointing not only to criteria for "small" as most folks might expect, but also to criteria for "business concern" or "concern" when deciding whether to set-aside a services acquisition outside the United States; the Contracting Officer would need to consider not only whether the entity is small, but also whether it satisfies one of the two criteria of a "business concern", at 13 CFR 121.105. A small business entity that is not located within the US may none the less meet the criteria of a business concern in that it "makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor."
  18. Personally, I'd use "an FFP", but did some market research anyway on Google Books to see what a search of edited texts had to show about this; I ended up a bit surprised at pretty strong showing for "a FFP". Caveat: The search results are a mixed bag and not just contracting related: "a FFP" showed up in 486 results and "an FFP" showed up in 537 results
  19. Thank you for providing that. Back when I worked utilities contracts at Ellsworth AFB I had a set ASPRs on my shelf because at least one of my contracts was created under them. I wish I'd looked it over the ASPR in my spare time then...if so, I'd have had at least a bit better ballast if not wind in my sails. Do you know how I can find the ASPR now? I did a cursory search and didn't find anything.
  20. Vern, thank you...I can now take away a sharper tool from this discussion. It's interesting how the ability to make such useful distinctions is (or should be) the acquisition professional's stock in trade. It might be the only thing that no one else is equipped to do.
  21. Vern, given DoD's wave of adjustments in the past 10 years or so in pursuit of audit readiness and what Dr. Carter called "CLIN Integrity", is this informational subclin format still available to DoD? DFARS 204.7104 seems to me to allow informational sublines as long as doing so has no effect upon delivery, performance or amounts that have contractual significance... DFARS 204.7104 quoted below (Sorry, I won't be able to highlight pertinent portions from my phone):; "Contract subline items. 204.7104-1 Criteria for establishing. Contract subline items provide flexibility to further identify elements within a contract line item for tracking performance or simplifying administration. There are only two kinds of subline items: those which are informational in nature and those which consist of more than one item that requires separate identification. (a) Informational subline items. (1) This type of subline item identifies information that relates directly to the contract line item and is an integral part of it (e.g., parts of an assembly or parts of a kit). These subline items shall not be scheduled separately for delivery, identified separately for shipment or performance, or priced separately for payment purposes. (2) The informational subline item may include quantities, prices, or amounts, if necessary to satisfy management requirements. However, these elements shall be included within the item description in the supplies/services column and enclosed in parentheses to prevent confusing them with quantities, prices, or amounts that have contractual significance. Do not enter these elements in the quantity and price columns. (3) Informational subline items shall be used to identify each accounting classification citation assigned to a single contract line item number when use of multiple citations is authorized (see 204.7103-1(a)(4)(ii))."
  22. DoD implemented Full Replacement Value coverage in 2007 and so DoD personnel who do have a paid personal property move are not in a similar situation. https://www.federalregister.gov/documents/2006/12/15/06-9729/mandatory-provision-of-full-replacement-value-coverage-by-department-of-defense-personal-property
  23. I'm confident Vern already knows this, but I thought I would mention for those looking on that the FAR at 1.107 also cites 41 USC 1304 on the subject of Certifications.
  24. If the unintended outcomes of Acquisition Reform and Organizational Change were likened to a Star Trek alien species, which would it be? The Borg Tribbles The Ferengi Why? The Borg: https://en.wikipedia.org/wiki/Borg?wprov=sfla1 Tribbles: https://en.wikipedia.org/wiki/Tribble?wprov=sfla1 The Ferengi: https://en.wikipedia.org/wiki/Ferengi?wprov=sfla1 Bonus: Ferengi Rules of Acquisition https:https://en.wikipedia.org/wiki/Rules_of_Acquisition?wprov=sfla1
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