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Vern Edwards

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Posts posted by Vern Edwards

  1. 42 minutes ago, Voyager said:

    Vern!  Am I tracking with your reasoning here?

    Yes. If you are going to use "hour" as a unit of effort, I think you should specify what you mean by effort. Is it any activity done by anyone doing anything? Or is it activity in direct pursuit of the contract objective, excluding support activity? Or is it something else?

    If you exclude support activity from the LOE you will still include it in the contract price or estimated cost, but you will not credit it against the LOE as service received.

    There is more to this that I will write later.

  2. @formerfed

    Thanks!

    Your response is entirely consistent with your definition of "effort" as exerted energy.

    The reason I asked my OP question is that contracts like the FFP/LOE/Term (FAR 16.207) and the CPFF Term form (FAR 16.306(d)(2)) often, if not always, specify the level of effort in terms of hours. That's the only set of rules and guidance in FAR about LOE contracts. That's a convenient unit of measurement, easy to use, but it gives rise to issues. Is "hour", without additional definition, a true unit of effort? Any old contiguous 60 minutes counts?

    The first contracts I negotiated as a GS-05 Copper Cap trainee in the mid-1970s were sole source ("selected source") FFP/LOE lump sum contracts under the old Armed Services Procurement Regulation (ASPR) for research (but not development). We specified LOE in terms of hours, but defined "hour" in the contract as an hour of "productive labor" (physical and mental) devoted to pursuit of the contract objective by persons with specified qualifications𑁋 sometimes by specific persons (Dr. So-and-so). But we did not explicitly define "effort". In any team endeavor, some people must wait for other people to complete their work before can do theirs. I was taught that we did not count "wait time" or "idle time" or "down time" towards fulfillment of the LOE. 

    Our FFP/LOE lump sum contracts did not include hourly rates, and the contractor did not bill on the basis of hourly rates. The contractor was entitled to payment of the lump sum upon delivery of the LOE and an acceptable report. There was a clause providing for acceptance of the work and payment of full price, without adjustment, if the contractor's actual hours inadvertently fell short of or exceeded the LOE by no more than five percent, as long as the research report was acceptable.

    Because the price was lump sum, there was no monthly billing. If the contract term was lengthy the contractor might receive progress payments based on costs. The work of administrative and support personnel ("ancillary" or "support") were expressly excluded from the hours that counted toward delivery of the LOE. Their costs, and the costs of materials, were negotiated and included in the lump sum price. Today I call such LOE contracts "project LOE contracts." The contractor is hired to perform a specific task with a specific scope to the LOE within a specific time.

    But there are also what I call "support service staffing LOE contracts", under which the LOE specifies the amount of staff the contractor must provide to perform some support function during a certain period. Those contracts account for very large number of annual actions and percentages of contract obligations. Yer FAR says nothing about them and published guidance is minimal.

    A recent article, Bodner and Midboe, "Speeding Up Services Procurements: Strategy and Tools to Award Quickly, Survive Protest, and Execute Efficiently," Public Contract Law Journal, Vol. 53, No. 1, Fall 2023, pp. 1-94, addresses those kinds of LOE contracts at length, and the authors say what I considered to be surprising things about the idea of "level of effort" and hours. See Section II.B., "Describing the Government's Contractor Workforce Needs," 16 - 49. See, especially, Section B.1., "Total Hours: An Essential Element of Any LOE Service Competition," pp. 17 - 21.

    I have also read some RFPs posted to SAM.gov that seek to procure such services. They are often advertised as LOE contracts, but they do not conform to the descriptions in FAR 16.207 and 16.306(d)(2). I have also read several court, board, and GAO decisions that involve what are called LOE contracts. And I have read some old GAO reports congressional hearing transcripts. The article, the RFPs, the decisions, the reports, and the transcripts have led me to question whether I have always known what I was talking about when I have talked about LOE contracts. It also explained some of the questions and comments I have seen at Wifcon.

    FAR does not explicitly address such LOE contracts, nor did the ASPR before it. I have not found any published comprehensive guidance. (What's the difference between a project statement of work and an LOE support services statement of work, if any?) The article I cited above is exclusively about support service LOE contracts, which are nowhere mentioned in FAR or in any agency FAR supplement. However, I have learned that NASA appears to have been a pioneer in their use.

    It is what I read in that article and in those RFPs, decisions, reports, and hearings that prompted me to ask my OP question: What is a level of effort?

  3. Please, Carl.

    You have said that you think the three men exerted 27 hours of effort. Thank you for your response.

    I am waiting for formerfed's response because he gave a coherent definition of effort as exerted energy, and I want to pursue that thought by engaging with him.

    Agains, thanks for your response.

  4. @C Culham

    37 minutes ago, C Culham said:

    They have exerted 27 hours of effort for which measurement for the purpose of payment will only be nine hours.

    I did not state the basis for pricing and payment; I'm not interested in the basis for pricing and payment at this time; and I did not ask about pricing and payment.

    I am only interested in and asking about the meaning of the term "effort".

    Thanks for your response, but I asked formerfed and I'll wait for his. He defined effort as exerted energy.

     

  5. @formerfed

    9 hours ago, formerfed said:

    Effort is the physical or mental energy exerted to achieve a purpose or result.

    Thanks! So effort is expended energy𑁋exertion.

    Government contracts typically, though not always, measure effort in units of hours. Let me pose a scenario and ask a question.

    Three men are hired to dig up the stump of a gigantic tree. They have one axe and one shovel. The location and position of the stump are such that only one man can get at the stump at a time to dig earth away and cut roots. So one man at a time digs and cuts while the other two watch and wait for their turn. They change places once an hour. After nine hours of that process a tractor is able to pull out the stump. Each man spent a total of three hours digging and cutting and six hours watching.

    Have the three men exerted nine hours of effort or 27 (3 x 9) hours?

     

  6. @C CulhamI wasn't offended. I just explained how I got my number. It's not an issue with me, and the difference in our counts is not important to me.

    11 hours ago, C Culham said:

    I can answer but I won't as it is my belief you have now taken the thread beyond intent of Beginners.

    I'm the Beginner here. 

    I have never seriously thought about the meaning of "effort" in "level of effort." But something has come up that has made me ask myself the question: What does "effort" mean? What is a unit of "effort"? It seems to me that those are questions that you must be able to answer if you are going to state a "level of effort". And I have spent several days trying to come up with a suitable answer.

    Is an hour a legitimate unit of effort, even if the work of one hour is more difficult than the work of the next hour or the previous hour? In such a case, is the amount of effort in each hour the same? And, if not, then is an hour a true unit? Are we confusing a pricing technique with an appropriate term of specification?

    I'm looking for answers and I'm trying to prompt thought. And you are going to refuse to answer because you think I posted my question in the wrong category?

  7. 8 minutes ago, C Culham said:

    No biggy but I got 34 results back in my search.

    Carl, I downloaded FAR as of FAC 2024-03 in pdf form from acquisition.gov. I did an Adobe Acrobat full search for "level of effort" (unhyphenated) and got 21 mentions. I searched for "level-of-effort" (hyphenated) and got nine mentions. 

    I did the search several times. I cannot explain the discrepancy in our counts, and I'm not interested. The key point is that FAR does not define "level of effort".

    Now, do you have or want to propose an answer to my question: What is a level of effort?

    All, Let's not get distracted. I'm looking for an answer to my question.  If this thread becomes a typical Wifcon all-over-the-map free-for-all, then I'll leave the thread. It's not easy for me to type here, and I won't be bothered.

    Focus, dammit. What is a level of effort?

    What is an "effort" How is it measured?

    It's okay to propose your own answer, but if you don't have an answer, don't post. 

  8. My question was: What is a "level of effort", as in "level of effort contract"? The question was not what is a level of effort contract?

    The phrase "level of effort" appears 21 times in FAR, but FAR does not define the term.

    The answer to my question requires, first, a definition of "effort", then, a definition of "level", which is presumably some kind of measure. 

    So, first, what is "effort", as in "level of effort contract"?

    FAR does not define "effort".

    There are four kinds of things we must learn in order to learn "contracting";

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

    My question is about a concept.

    We either know what we're talking about when we talk about "level of effort" or we don't.

     

     

     

     

  9. 5 minutes ago, REA'n Maker said:

    I do agree that the current system incentivizes protests and is wasteful and expensive. 

    I don't know that it "incentivizes" protests. The biggest problem is time and cost, both the cost of the protest process and the costs of delayed contract awards. Protests hamper agencies' ability to get what they need to do their job for the American people. The benefits of the protest system are largely theoretical, rather than established in fact.

  10. 25 minutes ago, C Culham said:

    I never understood why FAR 12 departed from UCF for commercial product/item as in my experience there is no real uniform contract format in the commercial market place.  I guess I could be wrong but the commercial terms and conditions I have viewed suggest no consistency across the commercial market place.

    The idea was to streamline the solicitation process by enabling combined synopsis/solicitation. The UCF did not lend itself to that process. However, the original concept of combined sysnopsis/solicitation has long been laid by the wayside.

  11. On 3/6/2024 at 1:03 PM, Me_BOX_Me said:

    That's the conclusion my agency arrived at 5 years ago. Now we either do 1) "management approaches" that are so high level they might as well not exist, 2) a basic technical approach to contract transition, or 3) what I did on my last SEB which was to only evaluate Key Personnel and Past Performance. 

    The use of the word approach in RFP statements of evaluation factors and proposal preparation instructions is quite old. It probably dates back to the design competitions conducted by the Army and Navy under the Air Corps Act of 1926 and was carried forward in the use of negotiated procurements after passage of the Armed Services Procurement Act of 1947. It originally referred to aircraft design approach (two-engine, like the B-25, or four, like the B-17), but thanks to cut-and-paste practice it is now used in all sorts of procurements and means who knows what. "Proposed [technical or management] approach" is a very common evaluation factor and proposal preparation instruction term.

    The concept of management approach was adopted in the early 1960's, because preliminary designs were not good predictors of performance. The emphasis shifted to contractor capability. See Peck & Scherer, The Weapons Acquisition Process: An Economic Analysis, pp, 361 - 385..

    I just downloaded from SAM.gov the following instruction in a combined synopsis/solicitation for human resources support services, RFP W91CRB-24-R-0014:

     

    Quote

     

    Technical: (Technical proposals shall not exceed 15 pages)

    Offerors shall provide sufficient information for the Government to determine the ability of the Offeror to perform the requirements of the RFP. The Offeror's proposal shall describe in detail its technical approach to performing the requirements of the Performance Work Statement (PWS) in meeting the following:

    Note:  The Technical Proposal shall not include any cost or pricing data.

    Technical Approach 

    The offeror’s proposal shall demonstrate a clear, concise, comprehensive understanding and methodology for the following specific tasks on part 5 of the PWS:

    1. Development of a Plan of Action and Milestone (POA&M)
    2. Management of Civilian and Army Personnel
    3. Leadership Development
    4. Management of HQDA workers compensation Program
    5. Management of Service Contract Reporting

     

    The PWS is 32 pages long (no table of contents). Offerors get 15 pages in which to address five topics, so that's an average of three pages per topic. The second topic is PWS Task 5.2.2, entitled, "Civilian and Military Personnel Management." It is takes up about three quarters of a page and consists of six subtasks. So the space available is about 1/2 page per subtask. Subtask 5.2.2.3 says:

    Quote

    Review and monitor HQDA organization Request for Personnel Action (RPA) as required using AutoNOA. This task includes validating RPAs against approved organization structures and in compliance with HQDA civilian strength management policy; advising the Director, Human Resources Management Directorate (HRMD), or HRMD Government personnel on appropriate action; and monitoring RPAs to ensure they are processed as approved. a) Provide monthly report on the RPAs reviewed when requested by the HRMD Director. (CDRL A010 – Monthly Report).

    What are the offerors expected to say about that in 1/2 of a page?

    Can you all see how utterly stupid this is?

     

    Whose fault is this kind of thing?

    THE CONTRACTING OFFICERS'! THEY ARE SUPPOSED TO BE THE "BUSINESS ADVISORS," THE SOURCE SELECTION EXPERTS. THEY ARE SUPPOSED TO BE THINKERS!

    What does approach mean? What do the evaluators want to know? When you ask someone to describe their "approach" to some undertaking, what do you want them to describe? What specific questions do you want them to answer?

    According to definition of approach in the Oxford English Dictionary (the OED--the 20-volume dictionary, not some "college" dictionary), definition 5b, approach means:

    Quote

    figurative. A way of considering or handling something, esp. a problem.

    Most contract specialists will say, "We want them to describe how they plan to do the job?"

    What does "how" mean? According to the OED it means:

    Quote

    In what way or manner? By what means?

    Approach is not specific. Asking "how" is not being specific. What, specifically, do you want to know? What specific information will affect your selection of an offeror and acceptance of its offer?

     So the next time the "technical people" write a cut-and-paste proposal preparation instruction, sit down with them and say:

    "What questions do you want answered?"

    And then, instead of writing a "proposal preparation instruction", write a questionnaire. If you want page limits, write an appropriate limit for each question.

    Think!

  12. On 3/6/2024 at 3:56 AM, joel hoffman said:

    The UCF is suitable for service and supply contracting.

    The UCF is one of the best things in the FAR. It was in the ASPR and FPR before FAR. It is an excellent way to organize the content of a solicitation and contract.

    On 3/6/2024 at 5:15 AM, C Culham said:

    Other than commercial product or service.

    FAR 12.303 prescribes a format to be used "to the maximum extent practicable," but its use is not strictly mandatory, and some agencies now use the UCF to organize commercial item RFPs and contracts.

    I recommend use of the UCF for large commercial item RFPs and contracts, because it works. Otherwise, RFPS for commercial items are sometimes badly organized, even chaotic, because contract specialists receive next to no training about organizing and writing RFPs and contracts, and important task.

  13. 17 hours ago, Seeking2Award said:

    I'm in search of documented authority (U.S.C. / FAR etc.) that would support the below statement:

    "As a general rule, a CO does not need a contract clause in order to grant a request for a "no cost extension." But the CO must obtain consideration in return if the contractor is not contractually entitled to an extension." by @Vern Edwards

    I am aware of FAR 50.103-2(a), however, is there something that can be cited when arguing in support of the government receiving considerations for a schedule change (proposed by the contractor that does not benefit the government)? The contractor insists consideration is not warranted, and short of terminating the contract, I am looking for ways to move the conversation forward. We do not want to simply ignore the request and leave dates on contract "as is" because we do not want to waive our right to pursue a termination if needed in the long run nor inadvertently render the contractual schedule of no effect.  Thank you in advance for your consideration in this matter!

    Emphasis added.

    See "Consideration for Time Extensions: Now You See It Now You Don't, The Nash & Cibinic Report (September 1990):

     
    Quote

    The Consideration Rule

    COs ask for consideration for two reasons. First, they know about, or are advised of, the basic common law rule that consideration is required to make a contract modification binding on the parties. While this rule has been dropped in the Uniform Commercial Code (see Section 2-209), it is still alive in many other contractual situations and is generally believed to be applicable to Government contracts. Second, they know about the Government contracts rule that no officer or employee of the Government has the authority to give up “vested rights” of the Government without receiving consideration. See Simpson v. U.S., 172 U.S. 372 (1899); Joseph Pickard's Sons Co., ASBCA 13585, 73-1 BCA ¶10026. The major exception to this rule is the amendment of contracts without consideration permitted by P.L. 85-804, 50 U.S.C. App. 1431-35; but there is no mention of the use of this authority to negotiate schedule extensions in FAR Part 50 (governing use of the authority) and no reported instance of its having been used for this purpose.
     

    Thus, the request for consideration is alive and well in most procuring agencies--even though the entire problem is ignored by the FAR. And such request is certainly in accord with accepted legal principles when the time extension is being negotiated before the time of delivery or completion has occurred. See Comp-Con Technology & Manufacturing, Inc., ASBCA 21150, 78-1 BCA ¶13152, recognizing this as the preferred course of action. However, after that time has passed, there may no longer be any need for monetary consideration because the Government may have waived its rights to terminate the contract for default. This is the best explanation for the course of action spelled out in FAR 49.402-4(a) above.

    That's the answer to the highlighted question, but there is more to it, so read the whole article. Read the cited board decisions. Read other board decisiopns.

    And do not ask me how to find the article or the board decisions. If you don't know or do not know how to find out you shouldn't be in the contracting business.

    I only answered this because the  OP cited me.

  14. 17 hours ago, Seeking2Award said:

    I'm in search of documented authority (U.S.C. / FAR etc.) that would support the below statement:

    "As a general rule, a CO does not need a contract clause in order to grant a request for a "no cost extension." But the CO must obtain consideration in return if the contractor is not contractually entitled to an extension." by @Vern Edwards

    I am aware of FAR 50.103-2(a), however, is there something that can be cited when arguing in support of the government receiving considerations for a schedule change (proposed by the contractor that does not benefit the government)? The contractor insists consideration is not warranted, and short of terminating the contract, I am looking for ways to move the conversation forward. We do not want to simply ignore the request and leave dates on contract "as is" because we do not want to waive our right to pursue a termination if needed in the long run nor inadvertently render the contractual schedule of no effect.  Thank you in advance for your consideration in this matter!

    Emphasis added.

    See "Consideration for Time Extensions: Now You See It Now You Don't, The Nash & Cibinic Report (September 1990):

     
    Quote

    The Consideration Rule

    COs ask for consideration for two reasons. First, they know about, or are advised of, the basic common law rule that consideration is required to make a contract modification binding on the parties. While this rule has been dropped in the Uniform Commercial Code (see Section 2-209), it is still alive in many other contractual situations and is generally believed to be applicable to Government contracts. Second, they know about the Government contracts rule that no officer or employee of the Government has the authority to give up “vested rights” of the Government without receiving consideration. See Simpson v. U.S., 172 U.S. 372 (1899); Joseph Pickard's Sons Co., ASBCA 13585, 73-1 BCA ¶10026. The major exception to this rule is the amendment of contracts without consideration permitted by P.L. 85-804, 50 U.S.C. App. 1431-35; but there is no mention of the use of this authority to negotiate schedule extensions in FAR Part 50 (governing use of the authority) and no reported instance of its having been used for this purpose.

    Thus, the request for consideration is alive and well in most procuring agencies--even though the entire problem is ignored by the FAR. And such request is certainly in accord with accepted legal principles when the time extension is being negotiated before the time of delivery or completion has occurred. See Comp-Con Technology & Manufacturing, Inc., ASBCA 21150, 78-1 BCA ¶13152, recognizing this as the preferred course of action. However, after that time has passed, there may no longer be any need for monetary consideration because the Government may have waived its rights to terminate the contract for default. This is the best explanation for the course of action spelled out in FAR 49.402-4(a) above.

    That's the answer to the highlighted question, but there is more to it, so read the whole article. Read the cited board decisions. Read other board decisiopns.

    And do not ask me how to find it the article or the board decisions. If you don't know or do know how to find out you shouldn't be in the contracting business.

    I only answered this because the  OP cited me.

    Some of you guys said you'd take care of things after I "retired."

  15. 2 hours ago, Fara Fasat said:

    n other words you have considered the reasons for the fence, determined that they don't justify the fence, and recommend tearing it down.

    Actually, I say that the fence is excessively costly to maintain and does more harm than good.

  16. 51 minutes ago, formerfed said:

    One thing that really bothers me is there’s no individual accountability for contract award decisions.

    See FARR 15.303. By the book, agency heads are responsible. When they delegate SSA to someone else, that person is responsible.

    Maybe what you mean is that no one is held responsible. No one is reprimanded or punished for process mismanagement when something goes wrong. Avoiding responsibility for that for which you are responsible is a very old, very human thing. And superiors are reluctant to hold anyone responsible because they would be responsible for that person.

  17. I am often discouraged by how infrequently "professionals" in our business question underlying assumptions, theories, and doctrines. The OJT training they most receive does not encourage them to engage in self-interrogation, to inquire beyond official sources of information, to think deeply, and to ask challenging questions.

    The motto of the acquisition reformer is: Question all assumptions, conclusions, explanations, doctrines, policies, rules, factual assertions, processes, and procedures.

    The questions you must ask yourself everyday are: What do I really know about that?

  18. On 2/29/2024 at 4:54 PM, Fara Fasat said:

    Yes reform is needed, but is the answer to eliminate protests completely? What about the harm to the government? If fraud or corruption, or even just a poorly-conducted acquisition, leads to the government not getting the best product or the best services, how does "pay their costs" remedy that? Sure the harmed bidder gets compensated, but the government is stuck with a second-best, or worse, product or service. Should the government have to accept inferior products or services because we took an ax to the protest system?

    Emphasis added.

    Get real about your work world.

    There is no evidence whatsoever that the current methods of contractor selection and contract award other than sealed bidding produce "best value." The average SSA could not give a coherent 15-minute presentation about concepts like value and risk. They could not provide a coherent explanation of the concept of evaluation factor. In most services acquisitions and many acquisitions of supplies the supposed "best value" determination is generally based on tradeoffs grounded on essay-writing  contests ("describe your proposed approach" " demonstrate your understanding of the requirement")—"proposals" that are even now being produced in part with technology like ChatGPT—and on half-baked analyses of "key personnel" and "past performance" based on scant information.

    Conclusions about "value" are usually described in vague adjectival terms such as: Outstanding, Good, Acceptable, Marginal, or Unacceptable. See W. Edwards Deming's 1975 essay, "The Logic of Evaluation":

    Quote

    Any adjective that is to be used in evaluation requires an operational definition, which can be stated only in statistical terms. Unemployed, improved, good, acceptable, safe, round, reliable, accurate, dangerous, polluted, flammable, on-time performance (as of an airline or train) have no meaning except in terms of a stated statistical degree of uniformity and reproducibility of a test method or criterion.

    What on earth does Good mean when applied to different proposals of various content? What is the margin of difference between Good and Acceptable?

    Evaluation documentation is often poor and is often destroyed. At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment. In many agencies the winning proposal is not seen again after the source selection.

    And we have known for decades, since before WWII, that proposals are often based on desperate imagination and bull----. That knowledge is well documented.

    And lastly, where is the evidence that protests have made acquisition better in terms of the value actually received? On what facts (not suppositions) do you base that notion? What they mainly do is ensure compliance with administrative laws and regulations. 

  19. 4 hours ago, Retreadfed said:

    Vern, how would your system handle those rare situations where the SSA acts unethically or criminally...

    I think an injured contractor should be able to seek B&P costs and attorney's fees by submitting a claim for breach of implied contract to evaluate proposals in compliance with law and regulation and the terms of the solicitation. The SSA should be prosecuted for any criminal violation. If there is misconduct short of a criminal violation the SSA should be disciplined (demoted or fired) in accordance personnel rules.

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