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Vern Edwards

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Everything posted by Vern Edwards

  1. I know of no such "multitude." And FAR does not explain the distinction. But there are a multitude of 1102s who issue purchase orders every day and who do not know of and cannot explain the distinction between a unilateral contract and a bilateral contract and the significance of that distinction. I know of no such "requirement." Of course, a CO should know of and understand the distinction, but COs should know and understand a lot of things that they don't.
  2. I don't know the answer to your question. In legal practice a "confer session" or "meet-and-confer session" is a court-ordered proceeding in which the litigants and their attorneys must meet in an attempt to resolve certain issues. The COFC has ordered "meet and confer" sessions in several protest cases. See, most recently, Dolphin Park TT, LLC v U.S., 159 Fed. Cl. 658, 664 (2022). The GAO does not order meet-and-confer orders. It may be that GSA is using the term "confer session" in order to distinguish what it plans to do in conference from the "discussions" described in FAR 15.306(d). If so, it may be planning to limit the topics to protest issues, and otherwise refuse to permit offerors to make unrelated proposal revisions.
  3. @formerfedYes. And where does FAR provide guidance about doing that when a CO issues a purchase order, other than the brief mention at 13.302-3? Where do 1102s learn about the distinction between unilateral and bilateral contracts and the significance of the distinction? Where is it discussed in FAR?
  4. I'm saying the analogy doesn't seem to work, because the relationship between fastball and strike is not analogous to the relationship between REA and claim. The REA/claim distinction is based on classification of two members of the same genus. Fastball and strike are not members of the same genus. But perhaps you can change my mind.
  5. You are right. Let me rephrase: I would explain to the contractor the difference between an REA that is a claim and an REA that is not a claim. Thanks, Socrates! Now, finish your hemlock.
  6. I don't think that the fastball/strike distinction is logically analogous to the REA/claim distinction. The REA/claim distinction is not valid because both are requests for something as a matter of right, but the law does not clearly distinguish between "REA" and "claim." Some claims are REAs and some REAs are claims. But the fastball/strike distinction is valid, because one is a species of pitch, while the other is a species of umpire call. They are associated with one another, a call follows every pitch unless there is a hit or foul ball, but they are otherwise entirely different kinds of things. Language confuses us, because if we were at a game we might say, "That last pitch was a strike," but the correct thing to say would be that the umpire called a strike on that last pitch.
  7. And that is the right thing to do, no matter what the contractor calls it. Moreover, if an inexperienced contractor submits a claim I would ask if it understood the difference between claims and REAs and the significance of submitting a claim instead of an REA.
  8. @cdhames If a procurement is for commercial products or services and is to be conducted pursuant to FAR Subpart 13.5, see FAR 13.003(g)(2): (Paragraph (d) concerns the acquisition of personal services.) In short, if the people in your office think that because they are using SAP pursuant to FAR 13.5 to acquire long-term commercial services they must use issue an RFQ "Q" and a purchase order "P" instead of an RFP "R" and a "C" contract (see FAR 4.1603(a)(3)), then they just don't understand sound professional practice. In my opinion, any contracting officer who would use a purchase order to acquire a long-term service is rather foolish. A purchase order "P" is a Government offer to buy, which the contractor can accept or reject. Purchase orders are unilateral contracts. The issuance of a purchase order is generally appropriate for simple, short-term, transactional procurements. They are fine for buying "off-the-shelf" type stuff. But when buying more custom, long-term commercial services, the issuance of a purchase order instead of a bilateral "C" type contract is generally not sound professional practice. Better professional practice is to negotiate a bilateral contract. The main advantages of using SAP under FAR 13.5 to buy commercial products and services valued in excess of the simplified acquisition threshold are that you don't have to follow the rules in FAR Part 6 and FAR Subpart 15.3. Especially important is that you are not bound by FAR 15.304 and 15.306.
  9. I have argued for years that there is no sharp distinction between a request for an equitable adjustment (REA) and a claim. (See the article, "What's in a name: REA versus claim," on the Wifcon Analysis page.) An REA that meets the criteria of "claim," as defined in FAR 2.101, is simply an REA that is a claim. Some REAs are claims and some are not. That is the bottom line of the Federal Circuit's famous 1995 en banc Reflectone decision—Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1583 (Fed. Cir. 1995). Unfortunately there are some people who cannot accept long-established established facts. So the Federal Circuit has once again had to make that point to the Court of Federal Claims by overruling its decision in Zafer Construction Co. v. U.S., 151 Fed. Cl. 735 (2020). See Zafer Construction Co. v. U.S., Fed. Cir. 2021-1547, 2022 WL 2793596, July 18, 2022, now on the Wifcon home page: Emphasis added. COs simply must understand that there is no sharp distinction between REAs and claims! What matters is not what the contractor calls it, or what the CO would like it to be, but what it is in light of the official FAR definition of claim. So when you receive something labeled REA, read the FAR definition of claim, and then think! Communicate and ask intelligent questions. Or, to put it more simply, Get a professional clue!
  10. Congress can't enforce a law. All it can do is legislate, complain about noncompliance, and legislate some more. So that's what it does.
  11. Katherine Johnson was one of the "hidden figures" in the movie "Hidden Figures." She was played by the actress Taraji P. Henson. The film includes the incident in which Glenn asks that she personally check NASA's calculation of the reentry plot. Great flick!
  12. If Webb and his management of NASA during the Apollo Program interest any readers of this thread, they might be interested in a woman named Mary Parker Follett, a management consultant during the first half of the 20th Century whose writings influenced Webb, and who thus could be said to have contributed to the success of NASA and the U.S. in space. She has been called "the Mother of Modern Management." According to an article by Albie M. Davis, a sociologist and negotiation theorist, which appeared in the Negotiation Journal in July 2015, "When Webb Met Follett: Negotiation Theory and the Race to the Moon," Webb wrote a letter in which he said, "Follett's influence was, indeed, profound in all that I did ... in NASA[.]" According to Davis: Remember the movie, "Hidden Figures"? Well, here's another one: Mary Parker Follett. A "swashbuckling advance scout of management!" "Webb clearly considered Follett his mentor - some of us find living mentors, others find wisdom in the words of people whose thinking is alive even if they are not, some do both." The things you can learn from a little reading. Some of Follett's writings are still in print, available at Amazon.com.
  13. I didn't know where else to put this. Congratulations to NASA and to all involved in the James Webb Space Telescope program. My only complaint is that it is hard to see some of the pictures through tears of pride and joy for what they accomplished. We are closer to seeing the First Light. Something to celebrate in these otherwise dark times. https://www.nasa.gov/sites/default/files/thumbnails/image/main_image_star-forming_region_carina_nircam_final-5mb.jpg If you are interested in knowing more about the telescope's namesake, James E. Webb, see The Man Who Ran The Moon: James E. Webb, NASA, and the Secret History of the Apollo Program, by Piers Bizony (2006). From the Foreward: See also, Powering Apollo: James E. Webb of NASA, by W. Henry Lambright (2000).
  14. That's quite an assertion. Not just an issue, but the fundamental issue. What do you mean by "complicated"? Complicated? Complex? Convoluted? Intricate? Is the complicatedness problematical only because it favors "insiders"? How do you define "insiders"?
  15. So are executive orders. https://www.federalregister.gov/documents/2022/07/15/2022-14967/nondisplacement-of-qualified-workers-under-service-contracts Forty-five pages.
  16. 😂 Generally, in procurement matters, mentions of "the recording statute" refer to 31 USC § 1501, Documentary evidence requirement for Government obligations. The "recording statute" is discussed in depth in GAO, Principles of Federal Appropriations Law (the Red Book), Volume II, Chapter 7, Obligation of Appropriations, Part B, Criteria for Recording Obligations, Section 1, Section 1501(a)(1): Contracts. Read it. The people in your policy office were probably referring to this: That refers to 31 USC 1501(a)(1), which says: Perhaps your "leadership" and policy people have misinterpreted the statute, or perhaps you have misinterpreted what they have said. Now read FAR 32.703-2, Contracts conditioned upon availability of funds.
  17. You must exercise an option in strict accord with its terms. If you write an option for 12 months you cannot "exercise" it for 10 months. That is contract law. See also FAR 17.205(f). So the option itself would have to give the government the right to exercise it for variable lengths. Or you would have to adopt Don's approach. Don's approach would not violate the 5-year limitation, because the limitation is on the sum of the option periods of performance. So you would be okay as long as the option periods of performance do not exceed 60 months—5 X 12. But what will you do for service between 10/1 and 11/30? See bosgood's question, above. Maybe the "innovation" you need is to get your office's act in order.
  18. So, for example, you want to write a contract that will run from 1 October 2022 to 30 September 2023 and you want an option to extend performance from 1 October 2023 to 30 September 2024 that can be exercised as late as 30 November 2024 with actual performance beginning 1 December 2024. Is that right?
  19. @ji20874Not true. The OP says that there have been "complications," an overrun, and that the parties will have to determine a new estimated cost before the agency decides whether to continue to fund the contract or terminate. A change in the parties' agreement about the estimated cost must be bilateral. You have be careful about what you say to noobies like Contract Noob. But you have clarified your post. Thanks.
  20. @ji20874You might want to clarify that. Not all funding mods are properly unilateral. See 52.232-22 paragraph (d): Emphasis added. If the funding mod includes an "otherwise" performance agreement, then it must be bilateral. Actions under paragraphs (g) and (i) might also warrant a bilateral agreement.
  21. Same problem with almost any mix of contract pricing arrangements, e.g., FFP and cost-reimbursement. The CO should require cost segregation by line item.
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