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Vern Edwards

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Everything posted by Vern Edwards

  1. Carl, I have checked both of the cases you cited, DeVito and Bulova. In both cases the word forbearance appears only once. In Devito: In Bulova: I don't understand the point you are making by citing those cases.
  2. Carl, No problem. But would you mind telling us what we are supposed to learn from that 57-page Bulova decision to which you just provided a link. The word forbearance appears only once, on page 51, in a quote from a different decision. I'm not sure what point you are trying to make. If I understood I might agree with it.
  3. Carl, where did I say that? I don't see it in this thread. What's the context? Were they my own words or was I quoting something? Assuming I did say it, are you saying it's wrong?
  4. Turner involved five separate decisions, all bearing the docket number GSBCA 15502. The one that includes the above quote is 05-1 BCA ¶ 32924, GSBCA No. 15502, March 18, 2005. Instead of attending to what's starting to happen here, why not go to a library and read a treatise like Williston on Contracts, 4th, § 7.44, Forbearance or promise of forbearance: Williston includes an extended discussion of forbearance.
  5. @KrimzI don't have better feedback than that. That's excellent feedback.
  6. I don't know of any standard checklist for offeror or awardee clearance. There are a number of contract file checklists, many of which are available online. Google <contract awardee clearance checklist>. A checklist specifically for clearing an offeror or awardee will be acquisition-specific to some extent, so you might not be able to find a standard checklist. You might have to develop your own,
  7. Emphasis added. Emphasis added. The scheme you described in your opening post is to ask for price reductions before selecting the awardee. Asking for a price reduction from the technically superior but higher priced quoter before making the award decision without seeking technical improvement from the the lower-priced, technically acceptable but inferior quoter before making an award decision might not seem fair to the GAO, especially if it applies FAR 15.3, as they said they would.
  8. @Sam101For a more recent decision about acquisition procedures under FAR 8.405-2, see Deloitte Consulting LLP, B-420137.7, July 25, 2022: See also NextGen Federal Systems, LLC, B- 420456, April 14, 2022: Emphasis added.
  9. @Sam101You must be careful when citing case law. First, what was the holding in Optimus and how does it apply to your scenario? Second, the Optimus decision is more than 10 years old, and the text of FAR 8.405-2(c)(3)(ii), which the GAO cited in Optimus, has changed. Are you aware of that? Do you know of any decision(s) which have made a holding based on the current FAR that would support what you want to do? I asked you: You responded: You did not answer my question. The issue is not discussions, because the discussions rule does not apply to acquisitions conducted under FAR Subpart 8.4. The issue is fairness. See FAR 1.102-2(c) and 1.602-2(b). About my question, I asked you: You responded: That response does not address fairness. Again, the issue is not discussions. It's fairness. Again, see FAR 1.102-2(c) and 1.602-2(b).
  10. That passage does not describe any technique. The first sentence says that the ordering activity must evaluate all responses. The second sentence says the ordering activity is responsible for considering various things. The third sentence instructs the ordering activity to place the order with a certain contractor. The fourth sentence tells the ordering activity to provide timely notification to the losers.The fifth sentence says that a brief explanation to any offeror who requests information. That passage does not describe or prescribe any method or manner of determining value. It doesn't say how to go about "considering" level of effort or labor mix or how to go about "determining" price reasonableness. The Oxford English Dictionary, 3d ed>:
  11. @Sam101When you ask, "Can the CO...," are you asking whether it would be okay with the GAO or the COFC? If so, then I don't know. I couldn't find a protest decision that dealt with your scenario. FAR 15.306 does not apply, so it boils down to whether it would be unfair, because you must always be fair to all competitors, no matter what procedure you use. Don't you agree? Is it fair competition, even under FAR Subpart 8.4, to bargain with Vendor A to get a lower price without bargaining with Vendor B to get a better technical approach? How would you answer that question if asked by a protest tribunal? (Why COs ask for proposed technical approaches under an 8.4 competition is a mystery. I'm inclined to think the answer has something to do with professional intelligence or the lack thereof.)
  12. @joel hoffman What's up with cutting and pasting lengthy FAR passages without context? It's a waste of peoples' time.
  13. From House Report 111-366, pp. 941-942: They want agencies to track and report the extent to which they rely on service contractors. Direct labor hours are those spent directly performing or supporting agency work.
  14. The editor of Briefing Papers is a colleague and friend, and I would be glad to provide editorial advice and counsel. Pick a good topic. Develop an angle of approach. Develop a good outline. Follow the format. Above all, write good sentences.
  15. Sounds like the kind of thing I wrote in the Briefing Paper entitled, A Primer On Source Selection Planning: Evaluation Factors And Rating Methods and the one I wrote on Award Fee Contracting. Why can't you write a Briefing Paper on ways of performing acquisitions and associated functions?
  16. @KseniaThe clause says that you must report only direct labor hours, which are charged to contracts as direct costs. Overhead and G&A are indirect costs. Labor charged to overhead and G&A pools are indirect costs, and thus are indirect labor. Please go to FAR Part 2 and look up the definition of direct cost and the definition of indirect cost. Then go to FAR 31.202 and read the discussion of direct costs. Then go to FAR 31.203 and read the discussion of indirect costs. Then go to FAR 31.001 and read the definition of cost objective. After doing those things come back here if you need further clarification.
  17. 🧐 You need a definition for direct labor cost? G&A wouldn't "normally" be a direct cost? According to the Government Contracts Reference Book, 5th ed., overhead refers to an indirect cost. The term overhead appears in 40 places in the FAR, and in none of those places does it indicate that overhead is a direct cost. What are you and Neil trying to do to poor Ksenia?
  18. @joel hoffmanAs you know, historically, the organization of contracting in the Corps of Engineers has been dissimilar to the organization of contracting in other federal agencies and to other service branches.
  19. @joel hoffmanSome background (not all there is) on discussions: The history of "discussions" begins in 1961, when the Armed Services Procurement Regulation (ASPR) § 3.805-1 was revised to include a requirement for "discussions" with all offerors within a "competitive range." See 32 CFR 26 Fed. Reg. 2599, 2605, March 28, 1961: Congress enacted that rule into law as part of the Truth in Negotiations Act, Pub. L. 87-653 (1962), and it was inserted into 10 USC 2304(g). The ASPR went on to say: That language was not included in the statute. Industry began complaining about "technical leveling" in the early 1970s. See Aerospace Industries Assoc., Aerospace Technical Council, Procurement and Finance Council, Essential Technical Steps and Related Uncertainties in DOD Weapon Systems Development, Phase IV Final Report (December 1970), Section 8.0, Technical Transfusion and Leveling, pp. 52-58, esp. p. 58: And see Section 8.5, Summary Recommendations: The early regulatory prohibitions against technical leveling were in agency source selection regulations, not the ASPR or the FPR. All of us in system development knew about technical leveling and sought scrupulously to avoid it. It appears that NASA adopted its "Four Step" source selection procedure early in the 1970s in order to avoid technical leveling and transfusion. That procedure, which was described in NASA PROCUREMENT DIRECTIVE 70-15, precluded the discussion of deficiencies during discussions. See To The Administrator, National Aeronautics and Space Administration, 51 Comp. Gen. 621, B-173677, March 31, 1972. That was the first GAO decision to refer to transfusion and "leveling." DOD adopted the "Four Step" procedure during the 1970s, but it never really caught on in that agency. Coverage of it was dropped from the DFARS in 1997, but it is still permitted. I don't think anyone uses it. I joined the Air Force workforce in 1974 and participated in my first source selection in 1975. The CO, Mr. C. Howard Kirk, was meticulous about avoiding technical leveling and technical transfusion and adopted procedures to prevent them from happening, but those procedures did not otherwise constrain discussions. The first mention of technical leveling in the Federal Register came from the Dept. of Energy on January 30, 1979, 44 Fed. Reg. 6038, when it published a proposed Procurement Regulations Handbook No. 1, Internal Policy and Procedures, Source Evaluation and Selection Process: That's all it said. That was written when DOE was young. It was created in 1977 and its contracting staff were peopled largely by former DOD personnel. I remember when Air Force personnel left to go to work there. They took their knowledge with them. The ASPR and its successor, the Defense Acquisition Regulation, never did mention technical leveling. The first mention of technical level in the CFR was in the 1983 edition of the Federal Procurement Regulation, Title 41 of the CFR, which said: That language apparently came from a 1972 GAO decision, cited above, To The Administrator... That's the language that appeared in the very first version of FAR 15.610(d)(1): Trouble with technical level began with the enactment of CICA in 1984. Agencies whose personnel knew very little about competitive negotiated procurement (source selection) began using it. Most had not been involved in systems acquisition and did not understand what technical leveling was really about. The concept generally did not apply to non-technical acquisitions. But FAR did not explain clearly. The FAR Part 15 Rewrite was published in order to eliminate a problem that had been caused when work was assigned to people who had not been educated in the concepts and principles that were involved in that work and didn't know what they were doing. The GAO never sustained a protest in which an agency was found to have engaged in technical leveling. To the best of my knowledge the only protest tribunal that has ever sustained a protest of technical leveling was the now-defunct GSBCA, when it had protest authority over IT acquisitions. See Tidewater Consultants, Inc., GSBCA 8069-P, 85-2 BCA ¶18387, September 4, 1985: The Rewrite was designed to open up discussions, but it did not succeed in doing so, because it did not solve a problem that has been with us since 1947: How does one negotiate in a competitive arena?
  20. @Jamaal Valentine Don't let Joel discourage you, Jamaal. I'm not a lawyer, and I have written several Briefing Papers. And other things I have written have been cited in Briefing Papers written by lawyers. I have also been cited by lawyers in law reviews and journals. I have written parts of legal textbooks and refused to allow my name to be put on them because I am not a lawyer and I thought that putting my name on the book might reduce its credibility, but lawyers have told me that is not the case. It's the quality of the work that gets you published and cited, not credentials. But don't start with Briefing Papers. Start with publications like Contract Management, which is how I started. Build up your writing muscles slowly. We NEED new writers. It doesn't take genius. It takes work.
  21. @REA'n MakerYou know why they print what you're calling "shoddy work"? Because that's mostly what they get. Try getting today's contracting "professionals" to write something. Those of us who do write regularly are getting old. Cibinic is dead. Feldman died very recently. Nash is in his mid-90s. I'm 76. All the publishers will tell you that getting stuff from the younger generation of contracting "professionals" is almost impossible. Apparently, their writing skills are limited to short emails, texts, and cut-and-paste file documentation. So much for a college degree. Once upon a time Contract Management carried articles by real pros. Once upon a time there was so much writing about contracting that a company named Federal Publications, Inc., published an annual compilation three inches thick. If the "profession" wants better stuff to read and doesn't like what it's reading, write something. It's not like there is a shortage of subject matter. It's work. It takes practice. But it's rewarding. Some of the regulars here could write useful articles instead of spending hours answering and arguing over half-baked questions. I could name names, but they know who they are. Don't you, Don, Jamaal, H2H, ji20874, formerfed, Retreadfed, et al. There is one person, who doesn't post here and whom I won't name, but whom I have called the Hunter S. Thompson of acquisition, who really should be writing. All they have to do is cut the profanity. If they wrote a regular column in Contract Management, NCMA could sell the magazine. When will one of you write a Briefing Paper for Thomson Reuters?
  22. If Contractor500 is going to be in this business, then he or she must learn about the regulations and how to find answers in them. This business of coming here for on-the-spot answers is neither reliable nor professional. The clearest statement of the applicability rule is in the CAS regulations. FAR can be confusing in that regard, especially to people who don't know how to read and research the regs. When reading a solicitation a company has to know how to determine which rules apply to them and which do not.
  23. @Contractor500Look! When somebody tells you something like that, ask for a citation to a law or regulation. FAR 52.230-1 says that a notice does not apply to small businesses. What does that mean to you? You're clueless! How does that answer your above question? See 48 CFR 9903.201-1, CAS Applicability, subparagraph (b)(3): (b) The following categories of contracts and subcontracts are exempt from all CAS requirements... (3) Contracts and subcontracts with small businesses. You come here a lot looking for information. Get smart about educating yourself! THINK!
  24. I disagree. The audience is there, but they can't afford those publications.
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