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Vern Edwards

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Everything posted by Vern Edwards

  1. For those of you who have access to law review articles through their office, the internet, or a library, look up Macneil, "A Primer of Contract Planning," Southern California Law Review, Vol. 48, page 627 (1975). See Section II, Lawyer Functions: The Process of Performance and Risk Planning; C. Drafting: Reducing Planning to Media of Mutual Communication. It's one of the best things of its kind ever written.
  2. I checked Westlaw. The Federal Circuit decision was the end of the road. You might want to read about the Totten Doctrine.
  3. There is an associated law review article citing the case (footnotes 74 and 119) and addressing the issues. See Radsan, "Second-Guessing the Spymasters with a Judicial Role in Espionage Deals," Iowa Law Review (2006). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=877180
  4. @FAR-flung 1102 Everybody seems to have an opinion about such things. But do you know about Military Handbook (MIL-HDBK) 245E, Preparation of Statement of Work, 14 JUN 2021? If not, Google the name, download it, and read it. That venerable guide has been around since the 1960s. It is far from perfect, but it is widely used. Start there. Here is the Foreward: Moreover, there is a ton of "guidance" available online. Just Google <statement of work guide>. Then take your pick. Here's a link to an old NASA handbook: https://ntrs.nasa.gov/api/citations/19750015297/downloads/19750015297.pdf Here's a link to a State of Texas guide for SOWs for IT services: https://dir.texas.gov/it-solutions-and-services/buying-through-dir/statement-work-sow Here's a GSA guide: https://www.gsa.gov/cdnstatic/SOW_Application.Services.and.Component.Framework.pdf This is not a new or unique work challenge.
  5. FYI, Bryan Garner, the expert on legal language and general English usage, says that shall is more likely to give rise to ambiguities than must. See the entry, "Words of Authority" in Garner's Dictionary of Legal Usage, 3d ed. Discussing shall, he says, "This word runs afoul of several basic principles of good drafting." About must, he says, "The advantage of must over shall is that its meaning is fastened down more tightly in any given sentence." FAR apparently puts the issue to bed by defining must as meaning the same as shall.
  6. @FAR-flung 1102 Emphasis added. Allow me to point out that FAR 2.201 requires insertion of the clause at FAR 52.202-1, Definitions (JUN 2020), in all solicitations and contracts valued at more than the simplified acquisition threshold. That clause says: So the definitions in FAR 2.101 are contractually binding in accordance with the terms of all contracts that include the definitions clause. Now look up the words "must" and "shall" in FAR 2.101 and tell us why you think "must" is more definite than "shall."
  7. @WifWafI ordered the book on your recommendation. Vern
  8. Did the "customer" tell you that it was going to award on the basis of initial proposals, without discussions? Is that what you meant by "one step"? If so, did the government then amend the RFP to add work and then ask for proposal revisions?
  9. What do you mean by "weekend work"? Is the worker being paid at overtime rates?
  10. @HitTheNutz Okay, well, buy in to those interpretations and don't do any audits—"no nothing." What more can anyone say?
  11. @Jamaal ValentineThere is a wealth of scholarly literature about consideration available through Google Scholar that goes back more than a century. Don't try to learn about legal concepts by reading Comptroller General decisions. They are often carelessly written and confusing. They are not written by scholars. Access Google Scholar and search for <doctrine of consideration contract law>. Be persistent. Ask yourself questions. And Jamaal, you won't learn by reading just one article. You must read many, and sort things out. Enjoy the journey.
  12. For more about consideration, see Gordon III, "Dialogue About the Doctrine of Consideration," Cornell Law Review, No. 5, July 1990. Very amusing. Read the footnotes. https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3464&context=clr
  13. A reference would be nice. See FAR Part 50, Extraordinary Contractual Actions and the Safety Act; Subpart 50.1, Extraordinary Contractual Actions; Section 50.103, Contract adjustments; Subsection 50.103-2, Types of contract adjustment; Paragraph (a), Amendments without consideration. (Note the use of the word "amendment" instead of modification. Once upon a time contract modifications were referred to as amendments.) Such adjustments were authorized by Public Law 85-804, 50 U.S.C. §§ 1431-35, which was enacted in 1958. According to an article in the Public Contract Law Journal: See Tolan, Jr., Environmental Liability Under Public Law 85-804: Keeping the Ordinary out of Extraordinary Contractual Relief, 32 Pub. Cont. L.J. 215 (2003). Keep in mind that a contractor may be relieved of liability for late performance in the face of an excusable delay. See, e.g., FAR 52.249-8, paragraph (c), and Administration of Government Contracts, 5th ed., pp. 487-521.
  14. See Administration of Government Contracts, 5th ed., pp. 843-57, Waiver of Right to Terminate: But the law of waiver is complicated and confusing, so read the enter section of the book.
  15. Yes. Option clauses to add work items are not uncommon in construction contracts. Just create a line item for each optional work item and write a clause about the process of exercising the option.
  16. Mastery of IT is essential to our nation's survival and prosperity. That means that IT acquisition is essential to our nation's survival and prosperity. It should be conducted by a streamlined bureaucracy pursuant to special and streamlined rules, not FAR. It should be done by a special corps of expert acquisition personnel, who do no other kinds of buys—a kind of acquisition special forces. They should have their own excepted service series and receive special education and training. However, our clunky, incompetent government could never pull off such a thing.
  17. You'd have to look in the Congressional Record and at the transcript of any committee hearings.
  18. With respect to Section 4, I doubt that much will come of it. It assigns various training responsibilities to OFPP, a moribund office that does not have a leader (just an acting) and isn't likely to have a long-term leader in the near future, if ever again. As far as I can tell, "experiential learning" is just a fancy term for a kind of OJT.
  19. Well, now you can join the conversation about when it would not be appropriate to evaluate past performance in source selection. Any ideas?
  20. It was my description of my state of thought. It described what I have begun to think, but not finally concluded. It's not something you should agree with or disagree with, unless you think I'm mistaken about my own state of mind.
  21. @joel hoffman What do you understand the difference of opinion to be? My opinion is that past performance can be important, but is not always important, and that you should not evaluate something just because you can, but because you have a reason specific to the acquisition at hand. In an earlier post I suggested some reasons why it might not be appropriate in a particular case. I will go further and say that I agree with Carl that in many if not most acquisitions (think about the number and variety of acquisitions) evaluation of past performance serves no real purpose. I have long taught students that when it comes to past performance most companies are in what I call "the muddled middle." Evaluating past performance when there is little likelihood that it will be a significant discriminator adds needless time and cost to acquisition. So is it your opinion that agencies should evaluate past performance in every acquisition? Is that the difference of opinion? If not, what is the difference?
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