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Vern Edwards

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Everything posted by Vern Edwards

  1. The phrase "closing statement" appears only twice in the FAR, at 4.804-5 and at 49.303-5. At the latter, it's a closing statement of costs. I assume that FAR 4.804-5 is referring to FAR 49.303-5, which is not a release of claims. Release of claims is a term of art that is widely understood to mean just what it says. As for FAR supps, it a supp calls for a release, then Batty should cite it. And no, a FAR supp is not the FAR.
  2. I don't know of any FAR requirement for a release of claims prior to closeout. Where is that requirement? What could you do if the contractor told you to get lost?
  3. The participants told me they enjoyed it and found it useful. They told me they learned a lot. I didn't act as a discussion leader, and I didn't participate in all their discussions. In retrospect, I wish I had. Group discussion is hard and requires a guiding hand. I now think that a tutorial approach, in the style of Oxford University, is a good technique, but it requires skill on the part of the tutor that most teachers, including me, don't have and must develop. See https://www.osapabroad.com/academics/the-oxford-tutorial/ That's one reason I'm reading Ward Farnsworth's book about the Socratic method. It also requires some aggressiveness and self-confidence on the part of students. The reading and discussion group approach requires real commitment on the part of each and every participant, which we had in the pilot program. I think lectures are still useful, but the approach must be active—show them, rather than tell them. I find students today to be lousy note takers. And nothing annoys me more than people with open laptops tapping away madly while you lecture.
  4. @ArtimpaI believe the applicable contract clause is GSAM/R 552.238-80, Industrial Funding Fee and Sales Reporting (JUL 2020). It reads in part as follows: Emphasis added. CCulham has already pointed out that clause. Now, where does the clause say anything about paying the IFF when you sell to someone off schedule at the same rates as in your schedule contract? Where does it say you even have to report such sales to GSA? Let us know when you find it. Does anyone know of another clause that requires payment of the IFF against non-schedule sales?
  5. Here's a link to a 2008 DODIG report that discusses conflict between an Army buying office and the DCAA in an alpha contracting negotiation: https://media.defense.gov/2008/Jul/03/2001713289/-1/-1/1/08-107.pdf I guess those pesky auditors didn't want to be sufficiently relational.
  6. Here's a description of Alpha Contracting given during a 2006 House hearing, concerning a construction project in Iraq:
  7. Alpha Contracting is not a new twist. It is an idea from the early '90s, mainly used in DOD R&D and systems development shops. Read up: Kirzow and Sweeney, An Exploratory Study of Alpha Contracting: Antecedents, Processes, Issues, Success Factors and Consequences (2009), https://apps.dtic.mil/sti/pdfs/ADA510039.pdf Quander and Woppert, Analysis of Alpha Contracting from Three Perspectives: Government Contracting, the Government Program Office, and Industry https://upload.wikimedia.org/wikipedia/commons/b/b4/Analysis_of_alpha_contracting_from_three_perspectives-_government_contracting%2C_the_government_program_office%2C_and_industry_(IA_analysisoflphcon1094510569).pdf Jennejohn, "Braided Agreements and New Frontiers for Relational Contract Theory," Journal of Corporation Law (Summer 2020), 45 J. Corp. L. 885. Anyone who has worked in a systems shop, like Matthew, knows that you work regularly with a small group of contractors engaged in various aspects of your program. You see their representatives all the time and you engage in multiple sole source negotiations with them. Alpha Contracting permits a relational approach to contracting. DCAA doesn't want to participate because they worry it will compromise their objectivity and audit integrity. It's been considered a time-saver, among other things. It's not a procedure for amateurs. It takes knowledge, experience, technical familiarity, saavy, and a higher than usual degree of trust. It can work if you've got smart people, but like all such "innovations" its proponents oversell it and exaggerate their successes.
  8. You don't have one and neither do I. Case closed.
  9. @C CulhamAll Batty asked for was a 'template" for a memo. Something he or she could cut and paste. Do you have one?
  10. Ralph Nash and I wrote that paper for the Procurement Round Table. It was republished under our names in the Defense Acquisition Review Journal of September 2007. https://www.dau.edu/library/arj/ARJ/arj45/ARJ45_complete.pdf Employer-provided professional education (as opposed to training courses) for acquisition personnel is virtually nonexistent. DAU and FAI are failed organizations. I doubt they will get better. But acquisition personnel can self-educate through reading and discussion groups. Read, read, read. Think, think, think. Discuss, discuss, discuss.
  11. It's not enough to just set PALT targets. Someone has to put together a group to map processes for various kinds of acquisitions, assign roles and responsibilities, estimate process times, set tentative goals, measure actual performance, compare performance to goals and diagnose, and then adjust. It's an ongoing process. It never ends. Moreover, PALT times are affected by workforce experience and education, and when the workforce changes so will PALT. @KeithB18Keith, you seem to have thought about this, and you write clearly. Why not do a literature search, think some more, and write an article about PALT for Contract Management and Wifcon?
  12. @Doug0464First, if the agency paid the contractor for the services, then you must presume that someone considered the services to have been acceptable in accordance with FAR Subpart 46.5 and FAR 52.246-4. I suspect that no one made any determination of acceptability as required by FAR Subpart 46.5. It just paid the invoice upon receipt. That means you have to undo or redo some things. If the agency now believes that the services were actually unacceptable and wants to recover the payment that was made, or part of it, you must make a quality assurance finding of unacceptability and a determination to that effect and the amount of the price reduction pursuant to FAR 52.246-4(e). (I presume that reperformance is not an option.) You must forward the quality assurance finding and determination of unacceptability to the contractor and demand return of the overpayment in accordance with FAR 32.603 and 32.604 and the rest of FAR Subpart 36.6. You could recover the amounts by withholding part of future payments, but don't do that without an okay from your attorney. You, or someone, had better write a really, really good determination that the services were not acceptable, based on solid quality assurance findings. The fact that the contract is supposedly performance-based doesn't affect the procedure, but it might affect the quality assurance procedure and determination that the service was unacceptable. You say you are an ACO. I presume that means you have a certificate of appointment. FYI, what I just described is Contract Administration 101. I see you are in Vancouver WA. If you work for BPA, then what I just wrote probably won't apply. Check with your managers.
  13. @REA'n MakerSorry, bud. I consider this topic dead. Best, Vern.
  14. @formerfed Bingo! Add to that the nature of our government, with its separation of powers (unlike in parliamentary systems). When Congress doesn't like the way the Executive Branch performs, it makes laws, because that's all it can do. Then the Executive writes orders and regulations. So many rules. The courts and other legal tribunals are involved with everything, because lawyers and litigants make it so. More rules ("case law"). It's not enough that practitioners think it can be useful to consider past performance. We have to make it a law. And once it's in the books... And please don't get me started on performance-based acquisition. Too many top and mid-level management jobs are done by political appointee amateurs. By the time they set up office and bone up on the work it's time to leave. They, of course, have to launch their "initiatives." I could go on, but to no purpose. Every informed and thinking American knows what's up.
  15. @Mike TwardoskiGood list. I have the following on my book table: The Dawn of Everything: A New History of Humanity (2021), by Graeber and Wengrow. Hot book right now. Controversial. Just started it. I love David Graeber, who died last year. He wrote The Utopia of Rules, a favorite book. Air Wars: The Global Combat Between Airbus and Boeing (2021), by Scott Hamilton. (Inspired by guess what.) Haven't started yet. The Socratic Method: A Practitioner's Handbook (2021), by Ward Farnsworth. Really about how to think. Wonderful, as are all of Farnsworth's books. On my second read. The Great Mental Models, Vol. I, General Thinking Concepts (2019), by Farnam Street Media. Just browsed, so far. Quote: "The quality of your thinking depends on the models that are in your head." Objectivity (2007), by Lorraine Daston and Peter Gallison. A 418-page tome. I'll never finish it. But very interesting. The Ministry for the Future (2020), by Kim Stanley Robinson. Scary science fiction about global warming. Good, but unnerving. Still reading. Strong recommendation for fun: My wife and I recently had to take home Covid tests before going to a family-and-friends Christmas dinner and poker game. We laughed at ourselves for being nervous while waiting for the results. We passed, thank goodness, and the party was fun. Our nervousness about the test results reminded me of my all time favorite scary science fiction story, "Who Goes There?" by John W. Campbell, first published in 1938. A study in paranoia. It was the basis for the Howard Hawks movie "The Thing From Another World" (1953), and "The Thing," the John Carpenter gore-fest of the 1980s. Both are cult films you can stream. Neither of them is as good as the story, but "The Thing From Another World" is great fun. Great dialogue. I've watched it a countless times. James Arness' first movie. The story is available for free at several websites. I recommend the following site: https://github.com/roguephysicist/who_goes_there/blob/master/John-W-Campbell_Who-Goes-There_1938-display.pdf It's also available as an audiobook.
  16. @formerfedThanks! I don't know the right answer, if there is one. My point in all this has been to show that the acquisition regulatory regime has become so voluminous, complicated, and convoluted that it has given rise to a system of extreme complexity and significant unpredictability. Unpredictability puts businesses in doubt and at risk. Doubt and risk increase the costs of compliance and the prices of supplies and services. They are drags on process. At the same time, they make real and full compliance nearly impossible. Statutes, executive orders, regulations, policies, deviations, exceptions, "informative" websites. It's all too much. Unfortunately, our governing institutions are so dysfunctional now that we cannot fix the system. We have seen that "reform" does not work. That's because Congress, the Executive Branch, and the Judicial Branch simply do not function as they should and as they must in order to sustain and protect us. For all the NCMA ballyhoo and recent tendency to celebrate "leaders," a cult of personalities, much of what is called "innovation" is really just connivance to exploit rule conflicts and gaps and develop work-arounds, which sometimes undermines the integrity of the system and process, giving rise to cynicism and discouragement. This is a sad state of affairs. I have devoted an almost 50-year career to trying to understand the system and the process. But you can see, below, what I have adopted as a signature motto.
  17. I should add, as a warning, that I found the chapters about the two crashes very painful to read, especially the chapter about the crash in Ethiopia. The author pulled no punches.
  18. @formerfedGSA schedule CLIN prices have nothing to do with it! Those are the prices the government pays the contractor for the services. We're talking about the wages and fringes the contractor must pay to its employees. Do the SCA and the SCLRs apply to the contract as a whole or on an order-by-order basis? Has the contractor violated the terms of 52.222-41?
  19. What does incidental have to do with it? I thought the standard, as stated in FAR 22.1003-1, was "principal purpose"? Where did you find your incidental/nonincidental standard? Is that in 29 CFR part 4? (See 29 CFR 4.111 and 4.130.) It's not in FAR subpart 22.10? In any professional task, nonprofessional support personnel may outnumber the professional personnel. That does not make their work the principal purpose of the task. But assume that the task entails work by ten Ph.D. physicists and three nonprofessional technicians.
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