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Vern Edwards

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Posts posted by Vern Edwards

  1. 1 hour ago, PATRICK3 said:

    I have a contract that had 5 proposals submitted for award under a LPTA format.

    Questions:

    1. Is this acquisition being conducted pursuant to FAR Subpart 15.3, Source Selection?

    2. Have you determined that the proposal is technically acceptable?

  2. 3 hours ago, ji20874 said:

    You do not need to comply with all the other rules in the FAR that relate to contract formation, as your contract is already formed.  Just follow FAR Subpart 16.5 and issue the order.

    That statement seems to be incorrect with respect to the nonmanufacturer rule (NMR). It's more complicated than that. But I'm prepared to be corrected through explanation.

  3. 4 hours ago, joel hoffman said:

    the significant differences between between the evaluation and ratings between the TET and the SSA should have warranted a face to face meeting and point by point discussion for this large task order. It should have been obvious that such a radical difference between 42 strengths (TET) and (9) SSA would need to be well documented or resolved/adjusted to survive possible protest.

    What it indicates to me is a broken FAR 16.505 fair opportunity planning process.

    It also shows that the ill-defined and troublesome FAR terminology of "strengths" and "weaknesses" should be reconsidered and either clarified or discarded.

    I think this is probably a devastating outcome for the contracting officer, whose decision to discard the TET's evaluation findings and make his own must have been controversial. I probably would not have done something like that in such an acquisition. If I had, and if I had suffered this outcome, I like to think that I would have left the agency.

    This does not speak well of the Department of Homeland Security's acquisition process in this matter. Maybe too much procurement innovation and not enough attention to rules and details.

     

  4. On 1/25/2023 at 7:34 PM, PolicyNerd said:

    I really am just curious.  Who is still using sealed bidding?

    Just go to sam.gov and search in business opportunities for "sealed bids." I just found 596 results.

    The very first one indicates that West Point is using sealed bidding to buy packing and crating services. Bids are due Feb. 14. Letterkenny Munitions Depot is using sealed bidding to buy repairs at its munition center. Bids are due March 15. The Federal Highway Administration is buying bridge repair. The State Department is buying carpet for the American Consulate in Dubai. The Army is buying digital display board maintenance and repair. Veterans Affairs is buying an exam/procedure chair. The Department of Energy is using sealed bidding. The Department of Veterans Affairs. The National Park Service.

    The Federal Bureau of Prisons and the State Department are using it a lot. So is the Army.

    And almost everybody is using sealed bidding to buy construction of some kind or other.

    There is no good reason to ban sealed bidding. It works just fine as it is.

    Competitive negotiation, on the other hand, needs a major overhaul. It's awful. But I don't think that the agencies that use it understand what needs to be done.

  5. Commercial item. No changes clause. Right?

    You'll need one or more supplemental agreements that specify the added and the deleted work. You'll need an agreement for any settlement, including any termination settlement. You could do one supplemental agreement that covers everything, or one for the added and deleted work, and one for any settlement. You could combine them into a single agreement.

  6. Quote

    The basis for assessing the debt against Mr. Martino was the lack of evidence that he conducted or relied upon any kind of market survey in signing the contract extension as required by regulation.

    I remember that case! I taught about it for the GWU program in Panama! And John was one of the students! He was a GS-15 as I recall.

    Procedure matters.

  7. My (ancient) recollection is that if a CDRL is CLIN 0002, Exhibit A, the CDRL items are numbered A001, A002, etc.

    Now see the PGI:

    (c) Numbering exhibit line items.

    (1) Criteria for establishing. The criteria for establishing exhibit line items are the same as those for establishing contract line items (see DFARS  204.7103).

    (2) Procedures for numbering.

    (i) Number items in an exhibit in a manner similar to contract line items.

    (ii) Number line items using a four-position number.

    (A) The first position or the first and second position contain the exhibit identifier.

    (B) The third and fourth positions contain the alpha or numeric character serial numbers assigned to the line item when using a double letter exhibit identifier. The second, third and fourth positions contain the alpha or numeric character serial numbers assigned to the line item when using a single letter exhibit identifier.

    (iii) Exhibit line item numbers shall be sequential within the exhibit.

    Emphasis added.

  8. I know that there is a difference between compliance with specified procedures and what is sometimes done for the sake of expediency. I've taken the expedient course myself, several times.

    I also know that while the expedient course is sometimes, perhaps usually, approved, it is sometimes not. Everyone reading this thread should know that, keep it in mind, and make good decisions.

    Contractors should be especially wary. Government personnel who would break their own rules might not be reliable promisors. It's one thing to ship based on an oral order from someone with whom you've done business many times and found to be reliable; it may be another thing entirely to do that for someone you do not know, who works for a boss you do not know, who works in an agency office you do not know.

    Weeks v. U.S., 144 Fed. Cl. 34 at 48 July 24, 2019:

    Quote

    Indeed, it is well settled that “agency procedures must be followed before a binding contract can be formed.” Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1433 (Fed. Cir. 1998) (citing New Am. Shipbuilders, Inc. v. United States, 871 F.2d 1077, 1080 (Fed. Cir. 1989); Am. Gen. Leasing, Inc. v. United States, 587 F.2d 54, 57-58 (Ct. Cl. 1978)). In American General Leasing, for instance, the parties allegedly reached an oral agreement that was confirmed in writing but never became a binding contract. 587 F.2d at 57. The United States Court of Claims (“Court of Claims”), the predecessor to the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), observed that (1) a letter confirming the oral agreement included a notation that additional prerequisites needed to be met before the parties could “sign a contract in accordance with the proposal” and (2) applicable regulations required any contracts to be in writing. Id. at 57-58. The Court of Claims explained that “[t]he parties may have completed the negotiations that would have led to a contract, but they had not taken the final and essential step of executing an agreement,” and found that no valid contract existed. Id. at 58.

    ***

    In Doe v. United States, another judge of this court relied on Harbert/Lummus when examining whether a valid oral contract existed. See 58 Fed. Cl. 479, 488-89 (2003), aff'd per curiam, 112 F. App'x 54 (Fed. Cir. 2004) (unpublished decision). Under the plaintiff's theory of the case, certain government officials entered into an oral contract with him in violation of agency regulations forbidding such contracts. Id. at 489. Accordingly, the court found that “no contract [could] exist” because those officials “lacked the requisite authority” since “agency procedures were not followed.” Id.

    In American General LeasingHarbert/Lummus, and Doe, the government officials involved all lacked the authority to enter into oral contracts because agency guidelines proscribed such contracts; thus, the purported oral contracts were held invalid. Here, the HUD officials involved in the June 24, 2011 negotiations similarly lacked the authority to enter into a binding oral agreement based on the HUD Litigation Handbook's requirements that HUD approval must be in writing, and include the regional counsel's concurrence, following receipt of a written proposal containing justifications for its adoption. Failure to satisfy any of these three requirements was sufficient to deprive the June 24, 2011 meeting participants of the necessary authority to enter into such an agreement. See Flexfab, LLC v. United States, 424 F.3d 1254, 1263 (Fed. Cir. 2005) (“[A]ssurances from a government agent, having no authority to give them, cannot expose the government to risk of suit for nonperformance of an obligation that it did not intentionally accept.”). Therefore, as in American General LeasingHarbert/Lummus, and Doe, the purported oral agreement at issue in the instant case is not a valid contract.

    Why make an oral "agreement" today that is not binding, if you are going to issue a written contract tomorrow? Talk it over with a prospective contractor, yes. And let the contractor proceed at its own risk if they choose to do so. But wait until tomorrow to call it and think of it a contract.

    I was confronted with that question, and I made up some answers. They were likely a lot of hooey.

  9. 😊

    5 hours ago, MileHighAcq said:

    As a reviewer (I'm a PA), I'm not going invalidate an entire contract just because the CO missed a step or two in the process (e.g., failed to synopsize, did not document market research, missed a required D&F, etc.).

    @MileHighAcqYou "youngsters" crack me up. I'm an old (you're all youngsters to me) and battered contracts warrior, and I've learned many things at my own foolish expense. One of the things I've learned is that the contracting bureaucracy doesn't always have as much say as they think they do.

    Who says that you, a procurement analyst, as a reviewer, has the final say? All it takes is one higher staff review, legal review, or (God forbid) IG report to put you off your feed.

    See the decision of the Federal Circuit Court of Appeals, one step below the Supreme Court, in HARBERT/LUMMUS AGRIFUELS PROJECTS, Harbert International, Inc., Abb Lummus Crest, Inc. and Lummus Crest, Inc., 142 F. 3d 1429, April 21, 1998:

    Quote

    As we have held before, agency procedures must be followed before a binding contract can be formed. See American Gen. Leasing, Inc. v. United States, 218 Ct.Cl. 367, 587 F.2d 54, 57–58 (1978) (holding that express oral agreement with government agent was not binding because, among other factors, applicable regulations required contract to be in writing); New Am. Shipbuilders, Inc. v. United States, 871 F.2d 1077, 1080 (Fed.Cir.1989) (“Oral assurances do not produce a contract implied-in-fact until all the steps have been taken that the agency procedure requires; until then, there is no intent to be bound. Thus, it is irrelevant if the oral assurances emanate from the very official who will have authority at the proper time, to sign the contract or grant.”). 

    Emphasis added. Now, there are contrary decisions. But my advice is: Don't be too sure of yourself. 

    Look, I think that 999/1,000 times CO's oral agreements will stand, especially if they make sense and the agency wants them to stand. But the notion that such an agreement will always stand, or that you can blithely waive the rules, is not supported by experience.

    I would make an oral deal if I thought that it was essential and unavoidable. But I would be ready for trouble if the deal were questioned.

    Also see Cibinic, Nash & Yukins, Formation of Government Contracts, 4th ed., Contracts Varying from Statutory and Regulatory Requirements, pp. 69 - 81.

  10. Just now, ji20874 said:

    In my opinion, a contracting officer's oral purchase order is not an unauthorized commitment, as that term is defined in FAR Part 1, and his formalizing it on paper the next day does not require a ratification.  

    Pursuant to FAR 1.602-3, if a contracting officer places an oral order without authorization to place oral orders, and the contractor ships immediately, has the CO made an unauthorized commitment?

    If so, would the CO's written formalization of the oral order the next day constitute a ratification of his oral order?

    If so, would the ratification be within the CO's authority?

  11. See Weeks v. U.S., 144 Fed. Cl. 34, July 24, 2019 (a decision of the Court of Federal Claims):

    Quote

     

    Indeed, it is well settled that “agency procedures must be followed before a binding contract can be formed.” Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1433 (Fed. Cir. 1998) (citing New Am. Shipbuilders, Inc. v. United States, 871 F.2d 1077, 1080 (Fed. Cir. 1989); Am. Gen. Leasing, Inc. v. United States, 587 F.2d 54, 57-58 (Ct. Cl. 1978)). In American General Leasing, for instance, the parties allegedly reached an oral agreement that was confirmed in writing but never became a binding contract. 587 F.2d at 57. The United States Court of Claims (“Court of Claims”), the predecessor to the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), observed that (1) a letter confirming the oral agreement included a notation that additional prerequisites needed to be met before the parties could “sign a contract in accordance with the proposal” and (2) applicable regulations required any contracts to be in writing. Id. at 57-58. The Court of Claims explained that “[t]he parties may have completed the negotiations that would have led to a contract, but they had not taken the final and essential step of executing an agreement,” and found that no valid contract existed. Id. at 58.

    In Harbert/Lummus, another decision that bears on the instant dispute, the Federal Circuit held that a purported oral contract was invalid because it was not authorized under applicable regulations:

    "It appears evident that, if [the plaintiff] had examined the [contracting officer's] delegation of authority, it could not have reasonably believed it had entered into a binding contract with the government in the absence of the required written approval by the [contracting officer]. Because there is no evidence of such prior, written approval by the [contracting officer] ..., we hold that the [contracting officer] lacked the authority to enter into the oral contract and it is therefore not binding upon the government."

    142 F.3d at 1433.

    In Doe v. United States, another judge of this court relied on Harbert/Lummus when examining whether a valid oral contract existed. See 58 Fed. Cl. 479, 488-89 (2003), aff'd per curiam, 112 F. App'x 54 (Fed. Cir. 2004) (unpublished decision). Under the plaintiff's theory of the case, certain government officials entered into an oral contract with him in violation of agency regulations forbidding such contracts. Id. at 489. Accordingly, the court found that “no contract [could] exist” because those officials “lacked the requisite authority” since “agency procedures were not followed.” Id.

    In American General Leasing, Harbert/Lummus, and Doe, the government officials involved all lacked the authority to enter into oral contracts because agency guidelines proscribed such contracts; thus, the purported oral contracts were held invalid. Here, the HUD officials involved in the June 24, 2011 negotiations similarly lacked the authority to enter into a binding oral agreement based on the HUD Litigation Handbook's requirements that HUD approval must be in writing, and include the regional counsel's concurrence, following receipt of a written proposal containing justifications for its adoption. Failure to satisfy any of these three requirements was sufficient to deprive the June 24, 2011 meeting participants of the necessary authority to enter into such an agreement. See Flexfab, LLC v. United States, 424 F.3d 1254, 1263 (Fed. Cir. 2005) (“[A]ssurances from a government agent, having no authority to give them, cannot expose the government to risk of suit for nonperformance of an obligation that it did not intentionally accept.”). Therefore, as in American General Leasing, Harbert/Lummus, and Doe, the purported oral agreement at issue in the instant case is not a valid contract.

     

    Footnote omitted.

  12. Bingo!

    I once worked for an agency that established emergency purchase teams. Each member was given a small briefcase in which they were to keep a copy of their CO warrant (certificate of appointment), some SF 44s, Purchase order, invoice, voucher, and some other items that I don't recall. The idea was that in case of nuclear war we would be able to go out and buy stuff that our agency would need. (I would say that it was crazy, but given our apparent determination to start a nuclear conflict with Russia it might not be so crazy after all. Why worry about small arm "assault" weapons when you can have mass killing on a nuclear scale?)

    Once a month the duty officer would call me at home in the middle of the night to verify that my phone number was valid and ask for confirmation that I had my satchel and my government ID at home.

    I think some FEMA teams carry something like that.

    In short, I cannot think of a justification for strictly oral purchase orders. But if I had to try to do it for a good reason, I wouldn't worry about getting into trouble. But the seller should worry about getting paid.

  13. 7 hours ago, govt2310 said:

    What I don't understand is, I am familiar with stories ("cautionary tales") of these types of inadvertent disclosures happening at various federal agencies.  The information disclosed in many of those instances seemed to fit the term "trade secret," yet I do not recall ever hearing of a federal agency firing the federal employee that disclosed the information. 

    What does that suggest to you? In another thread, Carl Culham provided a link to the Army Staff Judge Advocate's Contract Attorney Desk Book, 2022. In its 1,521 pages it mentions the Trade Secrets Act nine times, each mention being very brief. A sentence or two.

    You obviously have access to the internet. If you are curious, do some research. But you can learn something from the ongoing brouhaha about two presidents and a vice president (and probably more to come) who mishandled information that they should have properly safeguarded. Instead of researching the Trade Secrets Act, which is only one of myriad laws about the handling of information, I suggest that you and your coworkers focus on making sure that you don't mishandle contractor and government information in your possession, because you can't afford the number and quality of lawyers that those guys have.

  14. Anyone selling or buying commercial items to the government should read the 43-page decision of the Armed Services Board of Contract Appeals in the matter of FlightSafety International, Inc., ASBCA No. 62659, Nov. 29, 2022. The case concerns a dispute with a commercial item subcontractor over rights in technical data.

    Bob has provided a link to the decision:

    FlightSafety International, Inc., ASBCA No. 62659, November 29, 2022.

    The prime properly flowed four DFARS technical data clauses down to a sub. Altogether, the clauses were 33,671 words in length. Based on a sentence in one of the clauses the government claimed unlimited rights in the sub's technical data, which the sub had marked as proprietary because the data were developed exclusively at private expense. The government did not dispute that the data were developed exclusively at private expense, but challenged the contractor's markings. The subcontractor disputed the government's action. The board ruled for the government.

    The government says it yearns to do business with innovative commercial contractors. This case shows why innovative commercial contractors should be wary of government contracts and subcontracts. The case is also very educational for government contracting personnel. Although about a subcontract for commercial items, it shows (1) the level of knowledge and skill required to do government contracting at a professional level, (2) why the professional standards promulgated by OFPP, and the training that agencies provide to their contracting personnel, are inadequate, and (3) why career-long personal study is essential if you really want to be a pro. It also shows why people who say there is too much focus on regulations are fools.

    Professor Nash has written about the case in an article that will be published in The Nash & Cibinic Report next month. He says: "[H]ow many commercial companies are equipped to walk through this maze? A more rational response might be for a company reading about this decision to "just say no."

     

  15. @govt2310See FAR 3.104-2(b)(5) and 18 USC 1905:

    Quote

    Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311-1314), or being an employee of a private sector organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.

    You've been around long enough to have been able to find that for yourself.

    If you did it inadvertently, tell your boss and call your lawyer. If the government doesn't come after you the contractor might. They both might.

  16. 12 hours ago, C Culham said:

    In the end what has been most helpful to me is this document and its various discussions of forbearance - 2022 CONTRACT ATTORNEYS DESKBOOK.  Find it here https://tjaglcs.army.mil/publications

    The link didn't work for me, but if you are interested in forbearance, save yourselves the trip. Here's what is helpful about our topic in that 1,521-page pdf publication, which mentions the word forbearance all of six times:

    Quote

    1. Waiver of the right to terminate for default occurs if: a. The government fails to terminate a contract within a reasonable period of time after the default under circumstances indicating forbearance, and b. Detrimental reliance by the contractor on the failure to terminate and continued performance by him under the contract, with the government's knowledge and implied or express consent.

    2. As a consequence, detrimental reliance usually cannot be found merely from government forbearance and continued contractor performance.

    3. Forbearance = Reasonable Time Period... General Rule. The government may “forbear” for a reasonable period after the default occurs before taking some action... 

    4. (although forbearance for 42 days after show cause notice was “somewhat long”... )

    5. Government actions inconsistent with forbearance may waive a delivery date.

    6. Contracting officers should use show cause notices to avoid waiver arguments. Show cause notice is inconsistent with waiver. See Charles H. Siever Co., ASBCA No. 24814, 83-1 BCA ¶ 16,242 (using timely show cause notice preserved right to terminate despite four month forbearance period).

    That's all I found via an Adobe Acrobat search of the document. 😐 You'll learn more from Cibinic, Nash, and Nagle's one-page discussion. 

    The issue in this thread was whether an agreement, a mod, and consideration are necessary in order for a CO to forbear T for D if the contractor breaches. THEY ARE NOT NECESSARY!

  17. On 1/19/2023 at 2:58 PM, MileHighAcq said:

    Is there such a thing as a verbal [oral] purchase order? Can a CO issue a verbal [an oral] order, and later follow up with a written purchase order? 

    Do you guys really think you're done with this topic? Is this just a barroom discussion over some beers? Are we pros or amateurs?

    Better check out the GAO Red Book, Chapter 7, Obligation of Appropriations.

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