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Vern Edwards

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  1. The answers to your questions will depend on the terms of the OTA contract, which are negotiable. Traditional data rights clauses don't apply. See this Briefing Paper by Jay DeVecchio: https://media2.mofo.com/documents/190701-dod-data-rights-ip-simplified.pdf
  2. I brought it up because of something described in a new Court of Federal Claims bid protest decision, ENGlobal Government Services, Inc. v. U. S. and KBR Services, LLC, No. 21-2317C, May 12, 2022. (May 13, 2022): That was not an issue in the protest, but it caught my attention. It was inconsistent with long-standing practice, which is that if you say you are going to conduct discussions you cannot change your mind after receipt of proposals and decide to award without discussions. But inconsistency with practice would not make it improper. The issue is whether the above sentence in the RFP is inconsistent with statute or regulation. Don't get me wrong. I don't think it would be unreasonable. In fact, I think it makes sense. But is it consistent with law and regulation?
  3. GSA adopted the term "blanket purchase agreement' (BPA) for use under FAR Subpart 8.4 because it lacked imagination. Those BPAs are very different from the BPA's described by Part 13. GSA should have come up with a different term, because it has caused a lot of confusion. Have you seen this? https://www.gsa.gov/cdnstatic/BPAs_Student_Guide_w_Cover_FEB_2017.pdf
  4. Hmmm. What part of the quote is wrong? FAR 15.306(d) states:
  5. Opinions, please. See 10 USC § 3303(a); 41 USC § 3703(a); FAR 15.306(a)(3); FAR 52.215-1(f)(4); and FAR 52.215-1 (Alt. I) (f)(4). QUESTION: Given those USC and FAR provisions, may an agency state in a FAR Part 15 RFP that it intends to conduct discussions but reserves the right to change its mind after receipt and evaluation of proposals and award without discussions?
  6. In this thread, ji20874 and I have engaged in a little back and forth about contracting officer exercises of professional judgment and discretion. And I think that ji will agree with me that the proper exercise of CO judgment and discretion requires knowledge of not just the what and the how of the rules, but also the why. I'm talking now about the conceptual ideal of the CO. On May 11, Bob notified us about a recent bid protest decision by the U.S. Court of Federal Claims, Seventh Dimension, LLC v. U.S., No. 21-2275C, May 11, 2022. The protester challenged the CO's decision to cancel a solicitation after receipt of proposals, which was based on FAR 15.206(e). The court held if favor of the protester, vacated the agency's decision to cancel, and enjoined the agency from proceeding with any procurement actions "until further notice." It ordered the agency to either award a contract to the protester or issue a new cancellation decision within 60 days. The agency must explain its decision to issue a new cancellation decision. The court retained jurisdiction over the case for the time being. The reason I bring the case up in this thread, which is about a different matter, is that Part V of the decision, pp. 14 - 37, is a beautifully-written textbook illustration by Judge Solomson of the kind of deep reading and interpretative analysis and thinking that I believe COs should be able to do (with advice from their lawyers, of course) when exercising judgment. It is one of the best examples I have seen in a bid protest decision. It should be mandatory reading by all procurement analysts, contract specialists, and contracting officers. Reading it is an exercise in learning the why, instead of just the what and the how. Whether Judge Solomson would be upheld by the Federal Circuit if the Army appeals is another matter. His explanation of his analysis is simply wonderful. For anyone who enjoys thinking—serious acquisition practitioners who want to express well-reasoned and respected opinions and who don't just want to be told what to do by their lawyers—it is a joy to read.
  7. Setting aside change orders and equitable adjustments, many supplemental agreements are made because the parties want to make an out-of-scope change. Such changes are like new contracts. One party makes an offer and the other party accepts. The parties might not speak of it in those terms, but transaction analysis will usually show that's is happening.
  8. Everybody has trouble with this. The easy way to think of it is this: In order for there to be a contract there must be a bargain. In order for there to be a bargain there must be an exchange between the parties. In government contracts other than those created by purchase order the parties exchange promises. The offeror makes a promise called an "offer" seeking a promise in return. The Government makes a promise in return, which constitutes what the law calls "consideration." Imagine this conversation: Offeror: I promise that I will do what your SOW requires if you will promise to pay me $1,000,000 for doing it. Government: I accept your promise, in consideration for which I promise to pay you $1,000,000 for doing what our SOW requires. Both parties: We have a bargain! Easy-peasy. Works the same way for bilateral mods.
  9. If I were the CO I would refuse to accept invoices, vouchers, or "receipts" directly from a subcontractor, especially if the prime contractor has not seen them.
  10. Yes, but, at least in theory, civil servants bring a professional commitment to the taxpayer and engage in disinterested decision making.
  11. @Jamaal Valentine In addition to the Wondrium course, see the lengthy entry on consideration in Black's Law Dictionary, 11th ed. The basic definition is as follows: Another terrific resource is Google Scholar. Go there and search for "doctrine of consideration" in quotation marks and you'll get a long list of scholarly writings about consideration going back to the beginning of the 20th Century, including many that recount the history of its origin and development. But don't expect the articles to make everything clear. As you'll see, many legal scholars think the doctrine is almost impenetrable. Reading about it has made my head hurt from time to time. But try this one: "The Principles of Consideration" by Eisenberg, Cornell Law Review (1982): https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4281&context=clr And this: https://verkerkecontractsone.lawbooks.cali.org/chapter/the-consideration-doctrine/#:~:text=(1) To constitute consideration%2C,in exchange for that promise. Prof. Nash briefly discussed consideration in return for a contract modification in a short article in this month's (May 2022) issue of The Nash & Cibinic Report, entitled, "Revising A Fixed-Price Contract: Consideration Required." In it he discusses the source of the long-standing rule that a contracting officer cannot give away a Government right without getting something in return. He thinks it may be based on a 1941 Supreme Court decision, Royal Indeminity Company v. U.S., 313 U.S. 289, in which the court said: One thing—You said: That's incorreect. Only one party gets consideration—the offeror (promissor). One party makes an offer, the other party receives it (the offeree or promisee). The party that receives and decides to accept the offer must provide consideration to the party that made the offer in order for the contract to be binding. Consideration flows from offeree to offeror. When a Government contract is formed through an exchange of promises, from offeror to Government, consideration takes the form of a return promise by the Government. See the Restatement 2d, October 2021 Update, § 71: A purchase order is a Government promise. The consideration is performance by the offeree, which accepts the Government's offer by performing. Modification transactions may require analysis in order to identify offeror and offeree. If you're reading the student edition of the Restatement you should know that the Restatement has been updated.
  12. As contracting offices award ever more support services contracts so the government can avoid hiring more civil servants, they are functioning as personnel offices of sorts, and they are looking for ever more adaptable contractual devices. Arrangements based on on burdened hourly labor rate schemes must seem the most adaptable, since burdened rates are a convenient pricing mechanism and eliminate the need to audit indirect costs. Some such contractual concoctions do not match any of the traditional FAR Part 16 types, and though many are not true T&M contracts, the use of burdened hourly rates makes them seem T&M-ish, and calling them T&M means they are available for the purchase of commercial services. The U.S. Marines call that kind of thing improvising, adapting, and overcoming. The COs who know exactly what they're doing call it innovating. The ones who don't know what they're doing think they are following standard practice. Our modern contracting statutes—TINA, CICA, FASA, and the rest—lock us into 19th Century thinking about contracting. OTAs and CSOs are band-aids. But good luck trying to get the attention of the D.C. crowd, getting it to pay attention to what's happening, persuading it to let us into the world of modern business practice, and convincing it to give us capable and inspiring long-term leadership at the top.
  13. Think offeror (promisor) and offeree (promisee). Offeror makes a promise. Consideration flows from the offeree to the offeror. So... 1. The offeror, a business firm, promises to act by a certain date for a price. The offeree, the Government, accepts it, and as consideration makes a return promise to pay the stipulated price. The contract is formed accordingly. 2. Contractor fails to perform, has no excuse, and asks for an extension to a new date. 3. Government offers to extend to the new date as requested for a price reduction of $X. 4. Contractor, the offeree, accepts the offer and as consideration makes a return promise to perform by the new date at the reduced price. The price reduction is necessary consideration, because the Contractor's promise to do what it is already obligated to do cannot, alone, serve as consideration.
  14. 😂 Yes, Joel, I know you said that. You get an attaboy for pointing that out. I just wanted to point out that the "change (contract modification)" would have to be a supplemental agreement unless the contract prescribed a different procedure.
  15. It would be a contract change that, assuming the contract does not specify a procedure, would require a supplemental agreement. Just cut the deal, write the S/A, sign, and go about your business. Contracting 101.
  16. This sounds like a case of a contracting office that didn't know what it was doing. But we're getting our information from an OP that we do not know, and we all know that the information provided by OPs is often incomplete or otherwise misleading.
  17. It is incorrect from the standpoint of the FAR and the DFARS. But I don't know what agency you work for and what rules it may have established. You don't need a new subclin when you increase the total amount allotted to an incrementally funded contract. You just write a funding mod that states that the total amount allotted is increased by $_____ from $_____ to $_____ and states the new period of performance expected to be covered. I believe that you are trying to do your best. But it appears that your superiors haven't shown you how. Maybe they don't know.
  18. @Contract Noob I can't grasp why you created a contract line item for "Estimated Costs," and I don't grasp why you created a new subline item (SLIN) for the costs over target. That strikes me as looney. You didn't learn that from anything I ever wrote or even thought. You—or someone in your organization, or maybe your entire organization—do not understand the rules about establishing contract line items and subline items. CLINs and SUBCLINs are supposed to identify contract deliverables—items of supplies or services—and the prices or estimated costs and fees associated with them. See FAR Subpart 4.10, Uniform Use of Line Items, especially sections 4.1003, Establishing line items, and 4.1004, Establishing subline items. If you work for DOD, see the corresponding DFARS rules. Costs are not deliverables, dammit! Costs, including overruns, are to be charged to the deliverable (CLIN) for which there were incurred. I presume that your moniker means you are new to contracting. If so, find someone who knows what they're doing—if any such person exists in your office—to explain CLINs and SUBCLINS. And read the regulations.
  19. I don't stalk you, Carl. 😄 That's giving yourself way too much credit. You're just out there sometimes, and I have standards. But I'm glad you're not mad.
  20. Carl: I know better than to try reasoning with you. You're mad because I criticized you. Well, stay mad. I will not go back and forth with you. I will not explain further to you. I will not waste my time.
  21. Nonsense. The correct answer is Yes. A CO must ensure that someone performs contract QA. That someone will either be the CO or a representative of the CO. Most COs don't perform contract QA. Anyone who thinks that FFP contracts don't need one or more CORs is ignorant. What happened in this thread is that the very first responder to the OP, reading "COR," thought only in terms of FAR 1.602-2(d), instead of thinking of the nature of the problem and what other parts of FAR require. That first responder knew only part of the What and none of the Why. Once they mentioned FAR 1.602-2(b) everyone else focused on 1.602-2(b). I fired a shot across the bows when I posted "Criminy," but no one paid attention.
  22. Almost everyone knows that something has gone wrong in American government, including in the contracting function. Many are calling for innovation as one solution. Where does innovation come from? Researchers think that curiosity is the key, and they have written a number of papers about the role of curiosity in the effectiveness of business and government and the need for curiosity in organizational culture and among workers. See, e.g.: Kashdan, et al., "The Five Dimensions of Curiosity," Harvard Business Review (Sep. - Oct., 2018). https://hbr.org/2018/09/the-five-dimensions-of-curiosity I want to recommend a good book: Curious: The Desire to Know and Why Your Future Depends On It (Basic Books, 2014), by Ian Leslie, 216 pages. Available via Amazon.com. A Zen Koan: —From Zen Master Raven: The Teachings of a Wise Old Bird, p. 19, by Robert Aitken. In Zen Buddhism, zazen is "the seated practice of focused inquiry and attunement."
  23. Paragraph (d) is not a principle. It is a rule. Rules are based on principles, which are basic truths or assumptions. Rules apply principles to practices. In this case, the principle that underlies the rule at FAR 1.602-2(d) is that the Government should make sure that what it receives and pays for is what it was promised and is entitled to. Thus, the rule in FAR 1.602-2(d) that the CO should appoint someone in writing to make sure. The same principle underlies a broader rule. FAR 46.102, Policy: FAR 1.602-2(d) focuses on contracts and orders other than FFP because it is based on a statute about cost-reimbursement contracts in the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. But bureaucratic interpretations of FAR 1.602-2(d), with its focus on other than FFP, are uninformed. FAR 1.602-2 begins thusly: The broader rules at FAR 1.602-2 and 46.102, quoted above, should inform COs that if they are going to buy something they must make sure that they or someone else makes sure that the Government receives and pays for what it was promised and is entitled to. Since COs are responsible for contract administration, whoever makes sure is a COR, whether appointed by CO letter or interoffice or interagency agreement.
  24. The professional answer to that question is an unequivocal YES! Because it seems likely that a COR appointed for a services contract is not qualified to be a COR for an order of supplies. For the curious, assuming there are any such, here's some deep background. The OP's question appears to have been prompted by concern that the contract is for services and that, for some reason, the agency is issuing orders under a service contract to buy supplies. The OP wants to know if his office must appoint a special COR for the supply orders. With respect to FAR 1.602-2(d): Why is it there? What is it about? How is it supposed to be applied? FAR is not a textbook. It states the What, but not the How or the Why. I'll leave the How to first-level supervisors of the clueless. I'll explain the Why for curious professionals. When COs award contracts they must perform contract administration. One of COs' most important tasks during contract administration is to ensure that the government gets what it pays for by means of contract quality assurance (QA). (QA is distinct from quality control (QC), which is the contractor's responsibility.) FAR 46.101 defines contract quality assurance as follows: The purpose of contract QA is to ensure that supplies, services, and construction conform to the contract requirements. Contract QA is a technical function, not just an administrative function. It must be done by persons who understand the contract technical requirements and the things being purchased and understand how to inspect them. They must have technical know-how. Now read FAR 42.202(a); 42.302(a)(38) and (68)(ii); 46.103(d) and 46.104, and 46.401. Historically, most of what the Government bought was supplies, and the Government, mainly DOD, employed professional inspectors to perform contract QA during manufacture or upon delivery. Most DOD inspectors worked for a large regional organization called Defense Contract Administrative Services or DCAS. Certain contract administration functions--such as inspection and acceptance and payment--were delegated to DCAS and its subordinate organizations via standing agreements. DCAS offices would appoint the inspectors, who were--guess what--CORs. They were called that long before I was born. Many civilian agencies relied on DCAS for contract QA. When buying construction, agencies used civil engineers and experienced construction workers as CORs for contracting QA. When buying services, persons in the requiring activity checked the contractor's work. But services were a small part of Government contracting, and there was no systematic approach to performing contract QA. In the years after the Reagan administrations, Government contracting became dominated by services, gradually at first, and then quickly as the Government awarded more and more service contracts for performance of its work. Such contracts were generally referred to as "support services," and were highly diverse. Moreover, most such services were performed at "source" (see FAR 46.402). For those reasons it was, and is, difficult to centralize contract QA as had been done through DCAS. (DCAS is gone. It has been replaced by the Defense Contract Management Agency (DCMA). See https://www.dcma.mil/News/Article-View/Article/2100501/a-history-of-defense-contract-administration/ ) There has never been a centralized system for performing service contract QA. That makes sense, because most services are "local," i.e., performed where needed, at "source." The Government personnel at source should understand their requirements best. So it is mainly left to local contracting offices. But as service contract obligations grew as a rapid pace after during the late 1980s and the 1990s, both the Executive Branch and Congress began to worry about whether the Government was getting its money's worth. Moreover, services required more than just QA, they required more coordination between the requiring activity and the contractor, because unlike hardware specifications, statements of work only rarely specify services in detail. Requirements often had to be clarified ad hoc, during performance. During the late 1990s-mid-2000s, concerns about service contract management became elevated in light of a huge surge in service contracts. The surge became a tsunami after 9-11 and the start of our wars in Afghanistan and Iraq. See GAO, DEFENSE ACQUISITIONS: DOD’s Increased Reliance on Service Contractors Exacerbates Long-standing Challenges, GAO-08-621T (April, 2008). The document is the text of GAO testimony to the House of Representatives. Three quotes: In the wake of the report by the DOD's Panel on Contracting Integrity and the the GAO testimony, the FAR councils issued FAC 2005-50, 74 Fed. Reg. 14545, March 16, 2011, which, by interim rule, added paragraph (d) to FAR 1.602-2. The interim rule was finalized by FAC 2005-56, 77 FR 12925, March 2, 2012. The councils expanded on the COR requirement in FAC 2005-67, 78 FR 37675, June 21, 2013, which created the current text of FAR 1.602-2(d). The FACs that created that requirement didn't tell the story that I have just told you. Bottom line: The coverage in FAR 1.602-2(d) is really aimed at ensuring proper service contract QA, which is not effectively covered by FAR Parts 42 and 46. As is typical, FAR does not explain the Why of anything. Thus, if the OP's office is going to use a service contract, with service contract inspection clauses, to buy supplies—which is truly, deeply stupid—it should at least appoint a special "COR" to perform supply contract QA. And now you know why. It is not about the interpretation of FAR 1.602-2(d). It is about sound professional practice. So, YES! The office that is buying supplies under a service contract—which is the kind of practice that has screwed up the contracting system and that, if practiced too widely, results in more regulations—should make sure that it can perform adequate contract QA before buying, accepting, and paying for those supplies. And any CO who doesn't understand that should have their certificate of appointment taken away. P.S. Some of the responses to the OP in this thread have reflected an almost profoundly bureaucratic mentality.
  25. Sigh. No one can provide leadership in Government contracting until they know the what, how, and why of: the pertinent concepts, the pertinent principles, the pertinent rules, the art of curiosity, the art of inquiry, the art of analytical reading and interpretation, the art of explanation, the art of communication (oral and written), the art of argument, the art of process design, the art of procedure design, and the art of insubordination. If you don't know the what, how and, most especially, the why of those things, then you cannot lead. You cannot learn those things by taking classes sponsored by DAU and FAI. You learn them by training your mind to think and by studying systematically, deeply, and persistently throughout your entire working life. Study by reading, observing, analyzing, experimenting, and critiquing. It's a do-it-yourself endeavor. After you have done that for a number of years you will know a lot and can begin to lead. You lead by teaching other people that they have to think, read, observe, analyze, experiment, and critique. You don't lead by telling people how to do things or giving them things to cut and paste. You lead by showing them the arduous path to competence. And you have to accept that while you'll have a few successes in return for your efforts, the biggest part of what you'll get in return will be disappointment.
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