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Vern Edwards

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Posts posted by Vern Edwards

  1. 8 hours ago, Don Mansfield said:

    I think the most remarkable part of the Logan decision was the DEA's rotation procedure.

    I agree.

    But is award of orders by rotation a competitive procedure? (Is rotation the same as, or a type of, "allocation"? See FAR 16.505(b)(1)(ii)(B).)

    And since DEA awarded only one BPA per geographical region they must have awarded orders without comparing competitive quotes. If so, was that a competitive procedure? Was it maximum practicable competition?

    8 hours ago, Don Mansfield said:

    [N]obody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely.

    Logan's (aka Envirosolve) attorney was a single practitioner. Their name appeared as representing a protester in only nine GAO decisions, all between 1999 and 2017. In one of those nine they represented an intervenor. In three of them they represented Logan versus the DEA. Of the nine protests only one was sustained in full (one of the Logan cases), and one was sustained in part (involving a different client). They represented two clients in three COFC protests between 2004 and 2007. They succeeded only once, partially, on a motion for discovery.

    They represented six clients (including Logan (as Envirosolve) in 20 BCA cases, in seven of which they represented the same client and in six of which they represented another client. The outcomes were mixed. Several were settled before coming before the board. I did not read them all.

    I cannot help but wonder how Logan might have fared had they hired an attorney with extensive bid protest experience. What issues and arguments  might a more experienced protest attorney have presented based on facts we don't know about? Also, the impression I have of GAO is that it does not always have a lot of patience with inexperienced lawyers.

    Be careful not to read too much in, and rely too much on, a single GAO decision that has never been cited on-point after eight years. But feel free to innovate experiment. 😀

  2. Unless I missed something, all Logan boils down to is that if you conduct a competition to establish BPAs and get competitive quotes, you don't have get new quotes from the BPA holders for each order. You can just use the quotes you already have. That strikes me as nothing more than common sense. I presume DEA included price lists in each BPA and that the work was fairly standard from one order to the next.

    Were the BPAs in Logan agreements or contracts? Take a look at footnote 4:

    Quote

    The RFQ also included a “minimum guaranteed amount” of work for each BPA holder for each contract area. AR, Tab 3, RFQ No. DEA-06-R-0002, at 4-6.

    Did the agency obligate funds to cover the minimum?

    There were untimely protest issues that the GAO did not consider. See footnote 6. There may have been protest issues that were not raised. 

    I don't like the Logan example because I think conducting competitions is a lot of work and protest-risky. Protests cost money and delay awards. We know that competitions under FAR Part 13 have generated sustained protests largely due to needless use of FAR Part 15 procedures.

    In 2006 JAN Army Law 9 (2008), in a description of the Logan decision, the author, a Lieutenant Colonel, described the DEA's BPAs as "noncompetitive." He did not explain why. Maybe he was thinking that BPAs were competitively established but that the placement of the orders was done without competition, which appears to have been the case. No need for new quotes, but shouldn't the quotes have been compared before awarding orders? It appears that they were not. The GAO dismissed that thought with a couple of simple sentences:

    Quote

    In this case, DEA complied with the statutory requirement to obtain maximum practicable competition when it established the BPAs for these small purchases. Under these circumstances, there is no requirement that DEA compete among the BPA holders each individual purchase order subsequently issued under the BPAs.

    Why not?

    I think that is a questionable statement. GAO might rethink that in dealing with a protester armed with experienced lawyers from a large firm.

    But if, as ji20874 suggests, an agency has top-notch people to think through and work out potential issues, plot a good course, and steer the thing through the rocks and shoals, they should give it a try.

    Experiment, by all means. What do you have to lose?

  3. The decision by GSA to adopt the term "BPA" in connection with schedule contracts created a lot of confusion. Before his death in 2005, Professor John Cibinic criticized that decision in "Contracting Methods: Square Pegs and Round Holes," The Nash & Cibinic Report, September 2001.

    I think that conducting competitions for the "award" of SAP BPAs is a needless complication of simplified acquisition. It is not clear to me what practical advantage there is in such a process. I think GSA's hijacking of the term has poisoned the well of common sense. But I am open to be educated.

  4. Just now, C Culham said:

    I would add clarity that I believe you are referring to FAR part 13 BPA's. 

    Yes. I'm talking about FAR Part 13 SAP BPAs, not the GSA FSS 8.405-3 things ("Schedule BPAs").

    Under the terms of 31 USC 3551 and FAR Part 33, protests are complaints about contract actions. See GAO's protest rules, 4 CFR 21.1(a):

    Quote

    An interested party may protest a solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; the cancellation of such a solicitation or other request; an award or proposed award of such a contract; and a termination of such a contract, if the protest alleges that the termination was based on improprieties in the award of the contract.

    Emphasis added. SAP BPAs are not contracts.

    Moreover, synopsis of a competition for multiple SAP BPAs does not free an agency from the statutory requirement to synopsize "each" contract action conducted thereafter. Any prospective order (or "call") against a SAP BPA that meets the criteria in FAR Part 5 must be synopsized. The existence of a SAP BPA provides no exception.

    However... Practice generally precedes regulation, and many new practices are based on faulty interpretations of the regs. I do not doubt that buyers today are using SAP BPAs in ways that the regulations do not contemplate.

    Anyway, I am still in the dark about what ji20874 and Don like so much about Logan with respect to BPAs. To me, what it says about maximum practicable competition is just a common sense reading of the FAR. Under Part 13, competitive quotes are competitive quotes, no matter how you got them. Having received competitive quotes through its (seemingly) pointless BPA competition, the agency did not have to get new quotes when placing orders against the BPAs. Big whoopee. (Apparently, the BPAs included prices. Agencies have been issuing "priced BPAs" since I entered contracting in 1974. They did that in order to permit no KO "ordering officers" to place calls without having to determine fairness and reasonableness.)

    I suspect that the agency in Logan may have been confused about the difference between SAP BPAs and Schedule BPAs.

    Another Wifcon wild diversion.

     

  5. I think establishing BPAs competitively might make you vulnerable to protests when you place orders ("calls") against the BPAs. Is rotating vendors consistent with competition? How do yo explain paying a higher price just because someone has come up on rotation? If you're going to do that, what was the point of the original competition?

    And remember, an order against a BPA is contract action, and each one that meets the criteria in 5.201(b) must be synopsized. I don't think you can restrict the competition to BPA-holders.

    A SAP BPA is just a charge account. It is not a contractual instrument.

  6. 11 hours ago, C Culham said:

    So what do you think?  Should an agency that competitively established multiple BPAs simply extend the BPA's established in the competition if the BPA's had a set "performance period" which has ended/expired and neither the BPA(s), nor the solicitation, carry or carried language, options or otherwise, that the BPA's would be extended beyond the stated performance period? 

    Well, if you're going to conduct competitions for SAP BPAs when you don't have to, why not conduct new competitions when they expire?

    BTW, I do not think GAO has protest jurisdiction over actions to establish or extend BPAs. See 31 USC 3551 and the definition of protest in FAR 33.101.

    Logan was not about the establishment or extension of a BPA.

  7. Why use competitive procedures to establish multiple BPAs? Why not just do market research and then enter into BPAs with vendors you like? Then seek competitive quotes from them. Maximum practicable competition is not full and open competition.

    Again... A Part 13 BPA is just a charge account, a billing arrangement. That's all it does for you. It's not a contract.

  8. I don't understand what there is to like so much about the Logan decision. That decision has been cited only four times, and never about the BPA competition issue. A few agencies have established priced BPAs for decades. Logan is just common sense in such cases.

    And I don't understand how the Logan decision answers my question: Why synopsize a competition for BPAs  when such competitions are not contract actions? What would it do for you?

    Clue me in, fellas.

     

  9. @Sascha KemperYou're welcome! One more thing. Let me explain in a little more detain about FAR 6.001.

    On 3/20/2024 at 12:59 AM, Sascha Kemper said:

    FAR part 6.001 states that it is not applicable to Part 13.

    Here's what FAR 6.001 says about Part 13:

    Quote

    This part applies to all acquisitions except—

    (a) Contracts awarded using the simplified acquisition procedures of part  13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial products or commercial services, under subpart  13.5)...

    Emphasis added.

    Now look a the definition of acquisition in FAR 2.101, which begins:

    Quote

    Acquisition means the acquiring by contract with appropriated funds of supplies or services (including construction)... 

    Now look at the definition of contract in FAR 2.101, which begins:

    Quote

    Contract means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds... 

    FAR Part 13 BPA's are agreements, not contracts as defined by FAR. They are not purchase orders. They're supposed to be "charge accounts", i.e., billing arrangements. They anticipate future buys, but don't buy anything. Orders (or "calls") may or may not be made later. They are paperwork reduction devices. Thus, the creation of a BPA is not an acquisition. (Who knows what GSA's stupid BPAs under 8.405-3 are. I am not addressing them.)

    Thus, nothing in FAR Part 6, which applies to "all acquisitions", applies to Part 13 BPAs, including FAR 6.001(a), which applies only to contracts awarded using SAP.

    So if you want to create or extend a BPA you can stop reading 6.001 after "This part applies to all acquisitions..." It's not paragraph 6.001(a) that takes us off the hook, it's the prefatory phrase.

  10. 6 hours ago, Sascha Kemper said:

    I think that I can extend the PoP by 5 years without having to do a J&A? Am I wrong? Please let me know if I need to provide additional details to assist with this question.

    @Sascha KemperFAR Part 13 BPA's are agreements, not contracts. Do you understand the distinction under FAR? As mere agreements, they are not binding on the parties, do not buy anything, and do not obligate any funds. That's why they are not "awarded" and don't have periods of performance. They need only be reviewed, and updated if necessary, on an annual basis.

    And that's why you don't need a J&A to extend the agreement.

     

  11. Seventeen pages to deny a motion to dismiss. The ultimate decision is going to be a whopper!

    Our legal system is a swamp of procedure, and there is nothing to be gained by complaining about it.

    In fact, our whole government is a swamp of procedure, administrative and legal. Consider the months-long (if not years-long) source selection process.

    Again, there is no point in complaining about it. All efforts to "streamline" procedure have failed.

    America is in the grip of a cult of procedure.

    See: "The Procedure Fetish," by Nicholas Bagley (2021):

    Quote

    Inflexible procedural rules are a hallmark of the American state. The ubiquity of court challenges, the artificial rigors of notice-and-comment rulemaking, zealous environmental review, pre-enforcement review of agency rules, picayune legal rules governing hiring and procurement, nationwide court injunctions — the list goes on and on.

    https://www.niskanencenter.org/the-procedure-fetish/

    For a longer version see Bagley, The Procedure Fetish, 118 Mich. L. Rev. 345 (2019).

    The article has been cited 103 times.

    https://repository.law.umich.edu/mlr/vol118/iss3/2/

     

  12. @joel hoffman You don't need to provide an example. The topic is fully discussed in the references I listed. All the questioner has to do is look them up. Their legal office should have access to them. It is rarely necessary to write "treatises" in response to questions here, unless you just want to. 

    But I agree that OP's don't know how to write inquiries, and I sympathize. It's pathetic, and makes you wonder what they're teaching people in college.

    I have long planned to write an article about how to ask questions, and have bought and read several books and papers about the topic (there are almost countless numbers of them), and made many notes, but I don't know that I will be able to do it now.

    Organizations like NCMA have sold the world on the notion that professionalism is a matter of "certification." But it's not.

  13. On 3/14/2024 at 11:26 AM, KelliB said:

    How do you descope for CPFF Clins if the govt no longer needs the requirements?

    Three ways, from least to most difficult:

    1. Supplemental agreement to delete the unneeded work.
    2. Deductive change order.
    3. Partial termination for convenience. 

    One more referece: "Deletion of Work 𑁋 Change or Partial Termination: Gotta Be This Or That," The Nash & Cibinic Report, August 1988. From the article:

    Quote

    When work is to be deleted, should a deductive change order be issued, or should the contract be partially terminated for the convenience of the Government? Either method will accomplish the deletion, however, the mechanism chosen can have a significant effect on the amount of the price adjustment. Although it is the Contracting Officer (CO) who makes the initial decision, the contractor is not required to acquiesce if an improper selection is made. Thus, both parties should understand the different pricing rules applicable to each technique and the circumstances which determine the technique to be used.

    This was an easy question, and a chance to educate. Wifcon needs a new set of people to answer questions. The Old Bunch is worn out. And my time is running out.

    Jamaal? I'm looking at you.

  14. Instead of "descope," the proper term of art is "deductive change."

    See Government Contract Changes (August 2023 Update), by Nash and Feldman.

         § 4:15, Deductive change vs. convenience terminations

         § 16:16 Separately priced contract items

    See also, Person, 01-08, Briefing Papers 1: "Deductive Changes" (2001)'

    See also, Nash et al., Administration of Government Contracts, 5th ed., "Deletion of Work Through Termination for Convenience, Changes, or Other Clauses," pp. 1071-72.

  15. I do not know of any commercial course that is advertised as a contracting officer"bootcamp", and I am in the acquisition training business. But there may be one of which I am not aware. I presume that you have done an online search.

    But I gave the response that I did because I do not think any week-long course taught by anybody can "prepare" anyone to be KO. But that's just an old man's opinion.

    Good luck with your search. Someone here will offer you some better info.

  16. A weeklong course will not prepare you to be a KO. Not a real KO. But in today's workforce you don't really need much to prepare you to be appointed a KO. Agency managers talk about KO knowledge, but it is mostly just talk. The are not insincere; they are not able.

    To be a competent KO you must know:

    1. concepts,
    2. principles,
    3. rules,
    4. processes,
    5. procedures, and
    6. techniques

    pertinent to the acquisition mission. But you cannot learn those things in a week. You must read books and articles. Many, many of them. Over the course of many years.

    Begin with concepts. Conceptual knowledge is crucially important and underlies everything else. What is a "contract"? If you had to get up before an audience of trainees and teach them the concept of contract in American law, how long could you talk? Fifteen minutes, an hour, a half-day, a week?

    Interrogate yourself, make a list, then go learn what you need to know. At home. With books.

    You will never be finished. Never! That's why people talk about "lifelong" learning.

    Start with a good book about contracts. There are lots of them.

    Start a professional reading group of 4 or 5 colleagues.

    Others here will offer different opinions.

  17. 16 hours ago, Retreadfed said:

    That might work in some circumstances. 

    Anything might work if the parties understand and agree to it.

    The key is the ability to define terms and agreememt on definitions.

    Thus, in order to conduct a transaction for the purchase of "effort" the parties should define it and agree to a method of measurement.

    But in competitive procurements the government likes to enter into contracts without discussions.

    Agreement without discussion is an interesting idea.

    Socrates died in 399 B.C. The government doesn't seem to have learned much since then.

  18. 19 hours ago, Retreadfed said:

    What would be a productive hour? 

    How about this?

    Productive hour means an hour of physical or mental activity devoted to the achievement of the principal contract objective as described in the contract work statement, excluding all administrative and clerical support such as purchasing and document preparation.

  19. Here is one definition of "direct productive labor hour," quoted from Department of Commerce FAR Supp. 1352.216-71:

    Quote

    DPLH is defined as actual work hours exclusive of vacation, holidays, sick leave, and other absences.

    And the following is from the EPA FAR Supp. clause, 1552.212-70, Level of Effort-Cost-Reimbursement Term Contract (APR 1984):

    Quote

    (b) Direct labor includes personnel such as engineers, scientists, draftsmen, technicians, statisticians, and programmers and not support personnel such as company management, typists, and key punch operators even though such support personnel are normal ly treated as direct labor by the Contractor. The level of effort specified in paragraph (a) includes Contractor, subcontractor, and consultant labor hours.

     

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