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Vern Edwards

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Posts posted by Vern Edwards

  1. See "Fact Sheet on the Continued Thickening of Government" by Paul Light.

    https://www.brookings.edu/research/fact-sheet-on-the-continued-thickening-of-government/

    Light is famous for the book, The True Size of Government, in which he wrote about the "shadow workforce" of contractor personnel.

    If government sometimes fails us, the "Fact Sheet," though written in 2004, may provide some clues as to why. And the government has probably thickened some more since then,

  2. 18 hours ago, FAR-flung 1102 said:

    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. 

    Why must contracting officers be "given" tools?

    Hell, why don't they make their own?????

    The problem is that contracting officers in particular and contracting practitioners in general have not devoted any substantial time to thinking about what they buy when they buy services.

    FAR reflects government experience buying supplies. There is a 57-word definition of supplies in FAR 2.101, but there is no definition of services. In fact, there is no definition of services anywhere in FAR. The definition in FAR 37.101 is for "service contract," not for services. Yet we spend more money on services now than on supplies. Most contracting officers cannot give a coherent explanation of the concept of services.

    How many articles have you read from the voluminous literature on the unique problems of buying services? How much time have you spent thinking about the nature of services, about what kind of thing they are, about what all services have in common and of the different species of services? How much time have you spent discussing those things with your colleagues?

    Hmmm?

    As a class, contracting practitioners simply do not think deeply about their business. Not much at all, based on the evidence. So we see "lot" "LO" being used as a unit of delivery for services, even though it's generally inappropriate. The same could be said for "month." We see contract line item structures not properly aligned with work statement task structures. We see failures to think through the problem of price reductions for unacceptable task performance and to establish appropriate contract terms to supplement the Inspection of Services clause. 

    I have recommended books and articles about services. I have written a number of published articles about contracting for services. Here are some titles, all of which have appeared in The Nash & Cibinic Report:

    1.  PERFORMANCE WORK STATEMENTS: The Policymakers' Monster—Where Is Our Theseus? (February 2021)
    2.  IDIQ CONTRACTS FOR SUPPORT SERVICES: What Are They Really? (October 2018)
    3.  FIRM-FIXED-UNIT-PRICE vs. TIME-AND-MATERIALS: A Good Alternative For Services Acquisition (April 2015)
    4. COMPETITIVE PROPOSALS: What Is Their Predictive Value? (November 2014)
    5.  SERVICE CONTRACTING: Three Unsolved Problems (November 2011)
    6.  CONTRACTING FOR SERVICES: Challenges For The Next Generation (December 2010)
    7. “TRADECRAFT” IN SERVICES ACQUISITION: DOD's New Policies (November 2010)
    8.  NONCONFORMING SERVICES: What Are The Government's Rights Under Fixed-Price Service Contracts? (April 2008)
    9.  SERVICE CONTRACT QUALITY: We've Got More Thinking To Do (March 2008)
    10. OBLIGATING FUNDS FOR SERVICES UNDER IDIQ CONTRACTS THAT CROSS FISCAL YEARS: What Are The Rules? (May 2006)
    11.  THE ACQUISITION ADVISORY PANEL AND PERFORMANCE-BASED SERVICES: A Wasted Year
    12.  PRICING SERVICE CONTRACTS (May 2005)
    13.  A CHANCE TO FIX PERFORMANCE-BASED CONTRACTING (April 2005)
    14.  THE SERVICE CONTRACTING POLICY MESS (November 2001)
    15.   LONG-TERM SERVICE CONTRACTING IN THE YEAR 2000 AND BEYOND (September 1999)
    16.   PROMISES, PROMISES: SERVICE CONTRACT COMPETITIONS (November 1997)

    That list covers 25 years. Yet not one practitioner has taken up one of those articles as a starting point and run with it, not even to say they think it's wrong.

    Not one practitioner.

    Not one.

    But who reads? Who thinks? Who writes down their thoughts? Who shares their thoughts with colleagues? Who devises and experiments with solutions?

    No bleeping body, that's who! And old-timers like me are getting older every day. We're not going to be around forever. 

    WHO IS GOING TO PICK UP THE BLEEPING BALL?

    Give tools to contracting officers? Give?

  3. 13 hours ago, kburnett4112 said:

    Below are my core questions:

    1. If a firm-fixed-price contract or order is for an annual service, with performance and pricing specified by lot, can the buyer reject the entire lot and refuse to pay for any of it if just part of the work was unacceptable?

    2. If a reduction in the price of the invoice is required to account for the “services” not provided, how is thatreduction calculated given that the CLIN is FFP and is 1 lot?

    I cannot answer those questions without a lot more information about the nature of the service in question.

    I will say, however, that if a service "lot" consists of multiple and various tasks, and if the contractor's performance of only some of the tasks was unacceptable, then I doubt that a board of contract appeals or the Court of Federal Claims would go along with rejection of the entire "lot" and refusal to pay for any of it. If the tasks were independent of one another and could be separated for purposes of QA, then I think that the government could refuse to pay only for the ones for which performance was unacceptable.  How the parties would come up with the value of each task is something they would have to work out.

  4. @kburnett4112

    Next time, start with a clearly worded question, then go into the background. Starting with a long-winded (and confusing) background is a good way to lose readers before they get to the question.

    You make the reader's problem worse by not asking a clear question. I could find only one question mark in your post. It comes at the end of this sentence:

    50 minutes ago, kburnett4112 said:

    Additionally, if a reduction in the price of the invoice is required to account for the few items that were not provided, how is that reduction calculated given that the CLIN is FFP and is 1 lot.......so there is no item price per se or breakout of services associated with CDRLs, program management, SC Management, Program Meetings, etc. it's just one lump price for the lot?

    I think what you are trying to ask is this:

    If a firm-fixed-price contract or order is for a service with performance and pricing specified by lot, can the buyer reject the entire lot and refuse to pay for any of it if just part of the work was unacceptable?

    Is that what you want to know?

  5. 24 minutes ago, sackanator said:

    Whether its still a rated order without the clause could be an interesting side discussion but the question would still remain, if the IDC is rated, would the delivery orders be rated as well? 

    Yes. Assuming the DPAS clause applies, see FAR 52.216-18, paragraph (b): 

    Quote

    (b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

     

  6. 9 hours ago, here_2_help said:

    I read a good part of that particular decision, and found it to be depressing.

    Me, too, because it tells the story of an office that started a procurement in April 2019, enticed nine SDVOSBs to spend money in pursuit of its business, and then  made one mistake after another. And now, three years later, it's like Joe Btfsplk, with the thing still hanging over its head like a dark cloud and a wreck left behind it.

    How, oh how, do these things happen?

  7. Here is FAR 52.215-1, Alt I, (f)(4):

    Quote

         (f)(4) The Government intends to evaluate proposals and award a contract after conducting discussions with offerors whose proposals have been determined to be within the competitive range. If the Contracting Officer determines that the number of proposals that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the Contracting Officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals. Therefore, the offeror's initial proposal should contain the offeror's best terms from a price and technical standpoint.

    Emphasis added.

    According to The American Heritage Dictionary, 5th ed., intend means:

    "To have in mind; plan."

    I don't think "intends" states a firm and unswerving commitment.

    After pondering for a while, I think that an agency can say that it intends to conduct discussions and then, after evaluating proposals, decide that discussions would not result in improvement that would be worth the additional time and expense of discussions and final proposal revisions. It could then award without discussions. I think that including a notice to that effect in an RFP would not constitute a deviation from FAR 52.215-1, Alt. I, (f)(4).

    Of course, one can effectively do the same thing using the basic provision instead of the alternate.

    Thanks for your responses.

     

  8. 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):

    Quote

    The government intended to conduct discussions. AR 629 (§ M.1.2) (“The Government intends to hold discussions but reserves the right to make awards without discussion.”).

    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?

  9. 25 minutes ago, Guardian said:

    Much of the material the contractor is teaching in the DITAP course for FAC-C-DS is downright wrongful.  The following is an excerpt from our class readings:

    "Negotiations can be conducted in both sole source and competitive acquisitions. In a sole source acquisition, the FAR calls these exchanges “negotiations”; in competitive acquisitions, the FAR refers to them as “discussions.” In this lesson, we'll use the term “negotiations” to apply to both situations."

    Hmmm. What part of the quote is wrong? FAR 15.306(d) states:

    Quote

    (d) Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.

     

  10. 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?

  11. 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.

  12. 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.

  13. 1 hour ago, Jamaal Valentine said:

    I don’t know why I’m having so much trouble with this. I feel like I know what consideration is, but I don’t really understand it. 

    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.

  14. On 5/10/2022 at 6:50 PM, Susan P. said:

    I have a subcontractor who wants to submit receipts over $75 directly to the governement so as not to disclose their indirect rate to us.

    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.

  15. @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:

    Quote

    Something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act. 

    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:

    Quote

    Power to release or otherwise dispose of the rights and property of the United States is lodged in the Congress by the Constitution. Art. IV, § 3, Cl. 2. Subordinate officers of the United States are without that power, save only as it has been conferred upon them by Act of Congress or is to be implied from other powers so granted.

    One thing—You said:

    14 hours ago, Jamaal Valentine said:

    Consideration appears to be a two-way street. It seems consideration typically follows the promises or obligations of the parties. For example, the contractor’s promise (obligation) to render supplies/services and, after acceptance, the government’s obligation to pay (return promise). Both parties receive consideration.

    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:

    Quote

     

    (1) To constitute consideration, a performance or a return promise must be bargained for.

    (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.

    (3) The performance may consist of

    (a) an act other than a promise, or

    (b) a forbearance, or

    (c) the creation, modification, or destruction of a legal relation.

    (4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.

     

    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.

  16. 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.

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