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Vern Edwards

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Everything posted by Vern Edwards

  1. If you are using a tradeoff process, as opposed to, say, a higher technically rated with a fair and reasonable price process, then you must explain what good things you are getting from the higher-priced offeror that you are not getting from the others, or what bad things you are getting from the others that you are not getting from the higher priced offeror, and why the marginal difference in nonprice value is worth the difference in price. In other words, if you are paying a price premium, you must explain what are you getting for it and why it's worth it.
  2. @WifWafIn addition to the comments in my last post, I would require that a single award IDIQ contract minimum be based on the winning contractor's proposal preparation costs. I would require competing offerors to state their estimated proposal preparation costs in their proposals, and require that the winning offeror's contract minimum cover its costs. Estimated proposal preparation costs would be an evaluation factor. That would alert agencies to the proposal preparation costs that they are forcing contractors to incur and might motivate them to think more carefully when writing proposal preparation instructions. It might also motivate offerors not to spend too much on elaborate proposals. It might put an end to essay-writing contests.
  3. @WifWafI think multiple awards should be an option, not a preference. I would eliminate the policy stated in FAR 16.504(c). I would prohibit protests against a decision to make a single award. Multiple awards are expensive, and I don't think there is substantial evidence that multiple awards and "fair opportunity" competitions have resulted either in lower costs or better quality for the taxpayer. If anything, I would require justification for the making of multiple awards. To prevent abuses of single award IDIQ contracts I would require tighter "scope" descriptions, an absolute prohibition against post-award scope expansions, and a strict limit on the use of extension options. But the multiple award preference is a business welfare program. It would be hard to get rid of it.
  4. Some of you might find the following to be of interest: http://www.wifcon.com/discussion/index.php?/topic/2956-is-construction-considered-a-service/
  5. Actually, ji20874 should get the last word, since he provided the very best response to the OP on the very first day of this thread. 👏
  6. It can't be too difficult. There are a lot of single-award IDIQs. But I would still like to get rid of the multiple-award preference.
  7. I agree. What's more, I think it's Contracting 101. The OP refers to "HVAC units." That could mean anything. But the last HVAC unit I had installed at my home was installed by the supplier of the unit. I also had an emergency outside generator installed at my home, and that, too, was installed by the supplier. In any case, the FAR definition of "supplies" says what it says: "and the alteration or installation of any of the foregoing."
  8. You have made your point, Carl, that the contractor should inquire. You have made it several times. No one disagrees with you.
  9. I'm not sure what you are asking, but have you looked at the definition of "supplies" in FAR 2.101?
  10. You say it's a cost-plus-fixed-fee (CPFF) contract. That being the case, the government will have to reimburse the contractor at its actual, allowable indirect cost rates, unless the contract includes rate ceilings ("caps"). That is pretty elementary. Try reading the contract. Start with the Allowable Cost and Payment clause, FAR 52.216-7.
  11. @C CulhamYes, it supports the thought that I communicated, which was that a deobligation of funds, in and of itself, does not affect an agency's legal obligations under contract. See the following, from page 20 of the decision: Emphasis added. Deobligation of funds, in and of itself, without other contract changes, has no bearing on a contractor's substantive contractual rights. See also King Construction Co., ASBCA 39170, 94-2 BCA ¶ 26630, Jan. 14, 1994. The appellant in the case above paid a lawyer for nothing. It was stupid to file a claim objecting to a deobligation of funds. Once again, ji20874's advice to the OP not to freak out over the deobligation and just send an invoice has been proven to be sound. However, I do agree with you that upon receiving an unexplained unilateral modification to deobligate funds, a contractor would be wise to inquire.
  12. @formerfedHere is how DOD senior management testified about the decision to go single-award with JEDI, as quoted from the GAO's Oracle decision: What do you think?
  13. Wouldn't that approach be transactional, rather than relational? If so, would such an approach build trust and a solid foundation for a long-term strategic service relationship between customer and contractor? Wasn't that the kind of relationship that DOD was hoping to build under JEDI—long-term and strategic??
  14. Who does the contractor turn to? To the contracting officer for the order. Who else? The contractor files a claim pursuant to the Disputes clause and demands a final decision. If payment is still denied by final decision, the contractor appeals, seeking the payment due, prompt payment interest, and CDA interest. If the contractor is entitled to the payment, then the contractor gets paid. The contractor has been inconvenienced, but its contractual rights have been honored. I suppose that a contractor might draw an inference to that effect. Whether the inference is justified is another question entirely. No one said "No problem." What ji20874 said was to just go ahead and submit an invoice. Whether there will be a problem remains to be seen. I have said that you were right to suggest a call to the CO.
  15. While a lottery might be a reasonable way to choose a grounds maintenance contractor, given a choice of methods I would not select a critically important business partner by lottery. I think there is more to an important business relationship than mere competence, especially when the relationship will bear on military effectiveness and national security. I don't think proposal-writing contests are a good method, either.
  16. THAT is how to gracefully acknowledge that you were wrong about something. I will remember it and try to emulate it.
  17. If you buy services, then the one of the most important books in your professional future is Contracting in the New Economy: Using Relational Contracts to Boost Trust and Collaboration in Strategic Business Partnerships, by Frydlinger, Vitasek, Bergman, and Cummins (Palgrave Macmillan, 2020). The forward was written by Oliver Hart, winner of the 2016 Nobel Prize in Economic Sciences for his work on contract theory. The book is neither well organized nor well-written. It too often comes across as a typical consultant self-promotion sales pitch. But it is full of important ideas and references. And so, if you are going to be involved and interested in long-term and complex service acquisitions, you simply must read it, or at least scan it. The ideas in it are not new. I wrote about them in September 1999 in The Nash & Cibinic Report, in a guest article entitled, "Long-Term Service Contracting in the Year 2000 and Beyond," and in November 2001 in "The Service Contracting Policy Mess." Professor Nash and I wrote about them in Defense Acquisition Review Journal in September 2007 in an article entitled, "A Proposal for a New Approach to Performance-Based Services Acquisition." The overarching idea is that of relational contracting. The germ of that idea was born in two famous articles: "Non-contractual relations in business: A preliminary study," by Stewart Macaulay, published in the American Sociological Review in 1963, and "The Many Futures of Contracts," by Ian R. Macneil, published in the Southern California Law Review in 1974. Today we dwell in a stone age of government services acquisition. We are stuck with an acquisition process that is mired in 19th Century ideas. Ill-informed politicians, ill-informed Executive Branch acquisition policy officials, and an ill-informed workforce have a stranglehold on the acquisition process. There is no acquisition brain trust worthy of the name. Acquisition is essential to government. Government is essential to our national well-being. We are in trouble. Start reading. Then start thinking.
  18. @BG51I found your post hard to understand. I've read it several times, but I'm not sure what you're saying. What do you mean by "bounced"? Do you mean determined to be nonresponsible? Are you saying (1) you believe that a firm that was not registered in SAM when it submitted its bid or proposal can be determined to be nonresponsible and (2) that in such a case the offeror need not be referred to the SBA for a certificate of competency?
  19. @C Culham@formerfed Your discussion of FAR 552.212-4 and 52.216-18 is pointless without more information. A "modification" that deobligates funds but changes nothing else in the contract is not a change to the terms and conditions of the contract. It is just a permissible administrative change—see FAR 43.101—in this case, a government accounting transaction. It does not change the substantive rights and obligations of the parties. The exception would be an incrementally funded contract containing the Limitation of Cost clause, FAR 52.232-22, or a similar clause, which limits the parties' obligations to the "total amount actually allotted." If the mod deobligates funds that the government will need to liquidate its contractual obligations to the contractor, then it would be administratively improper and might give rise to an Antideficiency Act violation, but it would not be a breach of contract. It would be a different matter if the modification also seeks to change the contract price or estimated cost or some other contract term. In that case it seems clear that the government cannot do so unilaterally except as otherwise provided in the contract. That's why I asked what the OP's deobligation mod says. Bottom line: The OP has not provided enough information. I think ji20874 has given the OP good advice.
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