Vern Edwards

I scanned Part 3 — Award of public contracts and procedures, Chapter 2 — Competitive award, and at first glance like what I saw better than the corresponding parts of FAR Part 15. Unlike our FAR, it's well-written for a regulation (no surprise, the British) and seems to give contracting officials a lot of discretion.

Me, too, because it tells the story of an office that started a procurement in April 2019, enticed nine SDVOSBs to spend money in pursuit of its business, and then made one mistake after another. And now, three years later, it's like Joe Btfsplk, with the thing still hanging over its head like a dark cloud and a wreck left behind it. How, oh how, do these things happen?

Here is FAR 52.215-1, Alt I, (f)(4): Emphasis added. According to The American Heritage Dictionary, 5th ed., intend means: "To have in mind; plan." I don't think "intends" states a firm and unswerving commitment. After pondering for a while, I think that an agency can say that it intends to conduct discussions and then, after evaluating proposals, decide that discussions would not result in improvement that would be worth the additional time and expense of discussions and final proposal revisions. It could then award without discussions. I think that including a notice to that effect in an RFP would not constitute a deviation from FAR 52.215-1, Alt. I, (f)(4). Of course, one can effectively do the same thing using the basic provision instead of the alternate. Thanks for your responses.

The answers to your questions will depend on the terms of the OTA contract, which are negotiable. Traditional data rights clauses don't apply. See this Briefing Paper by Jay DeVecchio: https://media2.mofo.com/documents/190701-dod-data-rights-ip-simplified.pdf

I brought it up because of something described in a new Court of Federal Claims bid protest decision, ENGlobal Government Services, Inc. v. U. S. and KBR Services, LLC, No. 21-2317C, May 12, 2022. (May 13, 2022): That was not an issue in the protest, but it caught my attention. It was inconsistent with long-standing practice, which is that if you say you are going to conduct discussions you cannot change your mind after receipt of proposals and decide to award without discussions. But inconsistency with practice would not make it improper. The issue is whether the above sentence in the RFP is inconsistent with statute or regulation. Don't get me wrong. I don't think it would be unreasonable. In fact, I think it makes sense. But is it consistent with law and regulation?

GSA adopted the term "blanket purchase agreement' (BPA) for use under FAR Subpart 8.4 because it lacked imagination. Those BPAs are very different from the BPA's described by Part 13. GSA should have come up with a different term, because it has caused a lot of confusion. Have you seen this? https://www.gsa.gov/cdnstatic/BPAs_Student_Guide_w_Cover_FEB_2017.pdf

Hmmm. What part of the quote is wrong? FAR 15.306(d) states:

Opinions, please. See 10 USC § 3303(a); 41 USC § 3703(a); FAR 15.306(a)(3); FAR 52.215-1(f)(4); and FAR 52.215-1 (Alt. I) (f)(4). QUESTION: Given those USC and FAR provisions, may an agency state in a FAR Part 15 RFP that it intends to conduct discussions but reserves the right to change its mind after receipt and evaluation of proposals and award without discussions?

In this thread, ji20874 and I have engaged in a little back and forth about contracting officer exercises of professional judgment and discretion. And I think that ji will agree with me that the proper exercise of CO judgment and discretion requires knowledge of not just the what and the how of the rules, but also the why. I'm talking now about the conceptual ideal of the CO. On May 11, Bob notified us about a recent bid protest decision by the U.S. Court of Federal Claims, Seventh Dimension, LLC v. U.S., No. 21-2275C, May 11, 2022. The protester challenged the CO's decision to cancel a solicitation after receipt of proposals, which was based on FAR 15.206(e). The court held if favor of the protester, vacated the agency's decision to cancel, and enjoined the agency from proceeding with any procurement actions "until further notice." It ordered the agency to either award a contract to the protester or issue a new cancellation decision within 60 days. The agency must explain its decision to issue a new cancellation decision. The court retained jurisdiction over the case for the time being. The reason I bring the case up in this thread, which is about a different matter, is that Part V of the decision, pp. 14 - 37, is a beautifully-written textbook illustration by Judge Solomson of the kind of deep reading and interpretative analysis and thinking that I believe COs should be able to do (with advice from their lawyers, of course) when exercising judgment. It is one of the best examples I have seen in a bid protest decision. It should be mandatory reading by all procurement analysts, contract specialists, and contracting officers. Reading it is an exercise in learning the why, instead of just the what and the how. Whether Judge Solomson would be upheld by the Federal Circuit if the Army appeals is another matter. His explanation of his analysis is simply wonderful. For anyone who enjoys thinking—serious acquisition practitioners who want to express well-reasoned and respected opinions and who don't just want to be told what to do by their lawyers—it is a joy to read.

Setting aside change orders and equitable adjustments, many supplemental agreements are made because the parties want to make an out-of-scope change. Such changes are like new contracts. One party makes an offer and the other party accepts. The parties might not speak of it in those terms, but transaction analysis will usually show that's is happening.

Everybody has trouble with this. The easy way to think of it is this: In order for there to be a contract there must be a bargain. In order for there to be a bargain there must be an exchange between the parties. In government contracts other than those created by purchase order the parties exchange promises. The offeror makes a promise called an "offer" seeking a promise in return. The Government makes a promise in return, which constitutes what the law calls "consideration." Imagine this conversation: Offeror: I promise that I will do what your SOW requires if you will promise to pay me $1,000,000 for doing it. Government: I accept your promise, in consideration for which I promise to pay you $1,000,000 for doing what our SOW requires. Both parties: We have a bargain! Easy-peasy. Works the same way for bilateral mods.

If I were the CO I would refuse to accept invoices, vouchers, or "receipts" directly from a subcontractor, especially if the prime contractor has not seen them.

Yes, but, at least in theory, civil servants bring a professional commitment to the taxpayer and engage in disinterested decision making.

@Jamaal Valentine In addition to the Wondrium course, see the lengthy entry on consideration in Black's Law Dictionary, 11th ed. The basic definition is as follows: Another terrific resource is Google Scholar. Go there and search for "doctrine of consideration" in quotation marks and you'll get a long list of scholarly writings about consideration going back to the beginning of the 20th Century, including many that recount the history of its origin and development. But don't expect the articles to make everything clear. As you'll see, many legal scholars think the doctrine is almost impenetrable. Reading about it has made my head hurt from time to time. But try this one: "The Principles of Consideration" by Eisenberg, Cornell Law Review (1982): https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4281&context=clr And this: https://verkerkecontractsone.lawbooks.cali.org/chapter/the-consideration-doctrine/#:~:text=(1) To constitute consideration%2C,in exchange for that promise. Prof. Nash briefly discussed consideration in return for a contract modification in a short article in this month's (May 2022) issue of The Nash & Cibinic Report, entitled, "Revising A Fixed-Price Contract: Consideration Required." In it he discusses the source of the long-standing rule that a contracting officer cannot give away a Government right without getting something in return. He thinks it may be based on a 1941 Supreme Court decision, Royal Indeminity Company v. U.S., 313 U.S. 289, in which the court said: One thing—You said: That's incorreect. Only one party gets consideration—the offeror (promissor). One party makes an offer, the other party receives it (the offeree or promisee). The party that receives and decides to accept the offer must provide consideration to the party that made the offer in order for the contract to be binding. Consideration flows from offeree to offeror. When a Government contract is formed through an exchange of promises, from offeror to Government, consideration takes the form of a return promise by the Government. See the Restatement 2d, October 2021 Update, § 71: A purchase order is a Government promise. The consideration is performance by the offeree, which accepts the Government's offer by performing. Modification transactions may require analysis in order to identify offeror and offeree. If you're reading the student edition of the Restatement you should know that the Restatement has been updated.

As contracting offices award ever more support services contracts so the government can avoid hiring more civil servants, they are functioning as personnel offices of sorts, and they are looking for ever more adaptable contractual devices. Arrangements based on on burdened hourly labor rate schemes must seem the most adaptable, since burdened rates are a convenient pricing mechanism and eliminate the need to audit indirect costs. Some such contractual concoctions do not match any of the traditional FAR Part 16 types, and though many are not true T&M contracts, the use of burdened hourly rates makes them seem T&M-ish, and calling them T&M means they are available for the purchase of commercial services. The U.S. Marines call that kind of thing improvising, adapting, and overcoming. The COs who know exactly what they're doing call it innovating. The ones who don't know what they're doing think they are following standard practice. Our modern contracting statutes—TINA, CICA, FASA, and the rest—lock us into 19th Century thinking about contracting. OTAs and CSOs are band-aids. But good luck trying to get the attention of the D.C. crowd, getting it to pay attention to what's happening, persuading it to let us into the world of modern business practice, and convincing it to give us capable and inspiring long-term leadership at the top.

Think offeror (promisor) and offeree (promisee). Offeror makes a promise. Consideration flows from the offeree to the offeror. So... 1. The offeror, a business firm, promises to act by a certain date for a price. The offeree, the Government, accepts it, and as consideration makes a return promise to pay the stipulated price. The contract is formed accordingly. 2. Contractor fails to perform, has no excuse, and asks for an extension to a new date. 3. Government offers to extend to the new date as requested for a price reduction of $X. 4. Contractor, the offeree, accepts the offer and as consideration makes a return promise to perform by the new date at the reduced price. The price reduction is necessary consideration, because the Contractor's promise to do what it is already obligated to do cannot, alone, serve as consideration.

😂 Yes, Joel, I know you said that. You get an attaboy for pointing that out. I just wanted to point out that the "change (contract modification)" would have to be a supplemental agreement unless the contract prescribed a different procedure.

It would be a contract change that, assuming the contract does not specify a procedure, would require a supplemental agreement. Just cut the deal, write the S/A, sign, and go about your business. Contracting 101.

This sounds like a case of a contracting office that didn't know what it was doing. But we're getting our information from an OP that we do not know, and we all know that the information provided by OPs is often incomplete or otherwise misleading.

It is incorrect from the standpoint of the FAR and the DFARS. But I don't know what agency you work for and what rules it may have established. You don't need a new subclin when you increase the total amount allotted to an incrementally funded contract. You just write a funding mod that states that the total amount allotted is increased by $_____ from $_____ to $_____ and states the new period of performance expected to be covered. I believe that you are trying to do your best. But it appears that your superiors haven't shown you how. Maybe they don't know.

@Contract Noob I can't grasp why you created a contract line item for "Estimated Costs," and I don't grasp why you created a new subline item (SLIN) for the costs over target. That strikes me as looney. You didn't learn that from anything I ever wrote or even thought. You—or someone in your organization, or maybe your entire organization—do not understand the rules about establishing contract line items and subline items. CLINs and SUBCLINs are supposed to identify contract deliverables—items of supplies or services—and the prices or estimated costs and fees associated with them. See FAR Subpart 4.10, Uniform Use of Line Items, especially sections 4.1003, Establishing line items, and 4.1004, Establishing subline items. If you work for DOD, see the corresponding DFARS rules. Costs are not deliverables, dammit! Costs, including overruns, are to be charged to the deliverable (CLIN) for which there were incurred. I presume that your moniker means you are new to contracting. If so, find someone who knows what they're doing—if any such person exists in your office—to explain CLINs and SUBCLINS. And read the regulations.

I don't stalk you, Carl. 😄 That's giving yourself way too much credit. You're just out there sometimes, and I have standards. But I'm glad you're not mad.

Carl: I know better than to try reasoning with you. You're mad because I criticized you. Well, stay mad. I will not go back and forth with you. I will not explain further to you. I will not waste my time.

Nonsense. The correct answer is Yes. A CO must ensure that someone performs contract QA. That someone will either be the CO or a representative of the CO. Most COs don't perform contract QA. Anyone who thinks that FFP contracts don't need one or more CORs is ignorant. What happened in this thread is that the very first responder to the OP, reading "COR," thought only in terms of FAR 1.602-2(d), instead of thinking of the nature of the problem and what other parts of FAR require. That first responder knew only part of the What and none of the Why. Once they mentioned FAR 1.602-2(b) everyone else focused on 1.602-2(b). I fired a shot across the bows when I posted "Criminy," but no one paid attention.

Almost everyone knows that something has gone wrong in American government, including in the contracting function. Many are calling for innovation as one solution. Where does innovation come from? Researchers think that curiosity is the key, and they have written a number of papers about the role of curiosity in the effectiveness of business and government and the need for curiosity in organizational culture and among workers. See, e.g.: Kashdan, et al., "The Five Dimensions of Curiosity," Harvard Business Review (Sep. - Oct., 2018). https://hbr.org/2018/09/the-five-dimensions-of-curiosity I want to recommend a good book: Curious: The Desire to Know and Why Your Future Depends On It (Basic Books, 2014), by Ian Leslie, 216 pages. Available via Amazon.com. A Zen Koan: —From Zen Master Raven: The Teachings of a Wise Old Bird, p. 19, by Robert Aitken. In Zen Buddhism, zazen is "the seated practice of focused inquiry and attunement."