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Vern Edwards

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  1. This is for all those interested in the interpretation of statutes, regulations, and contracts. What does the word "so" mean? See 18 USC 1030, Fraud and related activity in connection with computers, which reads in part as follows: Emphasis added. Note, in the boldfaced passage, the word "so" in red. Violators can be fined or imprisoned for up to 10 years. A cop named Van Buren used his access to a vehicle license data base to get information for someone in return for $5,000, a violation of police department policy. It was an FBI sting operation. Van Buren was convicted and sentenced to 18 months. He appealed, based on interpretation of the statute. The 11th Circuit Court of Appeals ruled against him in 2019. He appealed to the Supreme Court. On June 3, 2021, the Supreme Court issued a 20-page 6-3 decision. Much of the decision is devoted to the significance of the word "so." The decision was written by Justice Barrett. Justice Thomas wrote a 13-page dissenting decision. The decision reversed a 2019 decision by the 11th Circuit. The decision is Van Buren v. United States, 593 U.S. ____ (2021), and it's available at the Court's website. Must reading for anyone interested in legal interpretation.
  2. Carl: Have you read 29 CFR 4.6(g)? I quote it here for your convenience. Note that the requirements of that passage are the same as those in FAR 52.222-41 paragraph (i), although the clause is formatted differently. Note that both the regulation and the clause require the contractor to disclose records only to, and provide access to employees only by, "authorized representatives" of the DOL Wage and Hour Division. A CO has no right under regulation or contract to access (a) records or (b) contractor employees, except as authorized by DOL.
  3. Carl, please confirm your question. You are asking me, based on the scenario in your post, in what way the CO has exceeded her authority to advise the DOL of her concerns about contractor compliance. Is that right? Her authority to advise the DOL of her concerns? If that's your question, my answer is: If the CO advises the DOL of what has transpired and her concerns, then she has not exceeded her authority to advise DOL. She is supposed to cooperate with DOL, and that would be a form of cooperation.
  4. @WifWaf I assume we are talking about acquisitions pursuant to FAR 16.505. If so, what "pilot program"? Why do you think we need a "pilot program"? Do you think we need one to develop a standard procedure for everyone to copy? FAR 16.505 does not prescribe any particular procedure for evaluating task order proposals, and there is nothing particularly complicated about what I described in the opening post. Competent COs should be able to just do it. COs who need a cut-and-paste model probably should not try what I proposed. Asking each offeror to prepare a SOW as part of their offer in order to describe the work they promise to do if awarded a contract or task order would not give rise to an organizational conflict of interest (OCI). That procedure is not new. It has been in use now for more than 20 years. See FAR 37.602(a). An OCI arises when a particular company prepares a SOW that the government plans to use in a solicitation of offers, not when offerors prepare a SOW when they compete for a contract or order. See FAR 9.505-2. Are you familiar with the term "model contract"? Offerors responding to a "fair opportunity" would fill in blanks left in a model task order to be completed by the competing contractors. For instance, a statement of objectives (SOO) in the model task order would be replaced in the actual task order by the SOW negotiated by the Government and the selected contractor. If, in addition to a SOW, you want a performance plan prepared after issuance of the task order, say so in the "fair opportunity" announcement (RFTOP) and include that requirement in the task order. If you want the plan revised from time to time after issuance of the task order, include that requirement in the task order, too.
  5. Yes, but... Source selection is a contracting process, and one of our problems is that not enough COs lack organizational stature. They are not experts. They are not masters of concepts, principles, rules, and practice. They do not command respect as professionals. Few managers will postpone a meeting because the CO cannot be there. Few seek out the CO for acquisition advice beyond its administrative aspects. Few are in awe of the CO's knowledge and ability to strategize. Maybe that has something to do with it. We did it to ourselves. Where are today's Gordon Wade Rules?
  6. I have to jump in here in support of Retreadfed, who said: In 1979, the Office of Federal Procurement Policy (OFPP) and the Department of Labor got into a dispute about the authority of OFPP to issue policies about the Service Contract Act. The President asked the U.S. Attorney General for an opinion about which agency had what powers. The Attorney General issued an opinion entitled, "Office of Federal Procurement Policy—Authority to Determine Whether the Service Contract Act, Walsh-Healey Act. or Davis-Bacon Act Applies to Classes of Federal Procurement Contracts," 43 U.S. Op. Atty. Gen. 150, March 9, 1979. In that opinion the AG said: If the OFPP does not have the authority to interpret and enforce the labor laws, and if the authority of agency heads is subordinate to the authority of the OFPP, it follows that the agency heads have no authority to interpret and enforce the labor laws. The SCA clauses in FAR implement DOL rules. When you read FAR 52.222-41 and 29 CFR part 4, together, as you must, it is clear that the agency head's and a contracting officer's authority to enforce the payment of minimum labor rates is subject to the decisions and authorization of the DOL. That is why disputes about the SCA are not subject to the Contract Disputes Act, COs cannot make final decisions in such matters, and the boards of contract appeals and the Court of Federal Claims have no jurisdiction over SCA enforcement disputes under the CDA. The inspection of services clause, FAR 52.246-4, does not give a CO authority to conduct employee interviews or enforce the SCA. The clause is prescribed by FAR Part 46. See FAR 52.101(c): According to FAR Part 46.000, Scope of part: According to FAR 46.101, Definitions: There is no mention of the inspection of services clause in FAR Subpart 22.10. And as I explained in an earlier post, the Civilian Board of Contract Appeals addressed the notion of applying the FAR guiding principles when interpreting contract clauses and rejected it in short order. Moreover, as the Attorney General opined, the FAR councils have no authority to set policies pertaining to SCA enforcement. All of the above is why FAR Subpart 22.10 prescribes no policies or rules about CO enforcement of the SCA, but says, in 22.1024: DOL has published guidance about "visits to employers." See Fact Sheet #44, https://www.dol.gov/agencies/whd/fact-sheets/44-flsa-visits-to-employers . A CO is not cooperating with DOL by going off and interviewing employees on his or her own nonexistent authority. A CO's primary responsibility under the SCA is to make a preliminary determination about the applicability of the SCA to a contract, to obtain and include a wage determination in a contract, to administer the conformance process, and to cooperate with the DOL in enforcement. I think Carl has misinterpreted what happened when he was with the USFS. I think that what happened is that DOL authorized USFS COs to conduct interviews of contractor employees at remote sites, and trained them to do it. I think it was done under the authority of DOL regulations, not the inspection of services clause. Carl, really. Why won't you just acknowledge that agency head and CO authority is subordinate to DOL authority in this matter. Why not just agree that while COs should take an interest in SCA administration by advising contractors of the crucial importance of compliance and by receiving and reporting concerns and complaints to DOL, they should not go off on their own to conduct interviews of contractor employees or otherwise enforce the SCA without DOL authorization. Is that really so hard for you to do? Please!
  7. Some of you may not know, or may have forgotten, that both DOD and NASA once used a source selection procedure that permitted one-on-one negotiations with a single selectee (or with multiple selectees) prior to contract award. The procedure was called "Four-Step Source Selection." The DOD version of the procedure was described in DFARS 215.613-70 (1997). The coverage was too long to quote here in its entirety. However: Step One entailed evaluation of technical proposals and limited discussions. Step Two entailed evaluate of cost proposals and establishment of a competitive range. Step Three entailed discussions with offerors in the competitive range, "best and final offers," and a source selection decision of one or multiple offerors. The regulation described Step Four as follows: DFARS 215.613-70(b) stated: In 1998, DOD deleted the DFARS coverage of the Four-Step Source Selection Procedures when it implemented the 1997 FAR Part 15 Rewrite, with the following explanation: See 62 Fed. Reg. 55040-01, Oct. 14, 1998. Four-Step was first used by NASA in the 1970s and was adopted by DOD for R&D acquisitions in 1976. Its use was later authorized for other than R&D acquisitions, with limitations. It was initially mandatory for R&D, but later made optional. An extensive early discussion of Four-Step can be found in the GAO decision In the Matter of The Airesearch Manufacturing Company of Arizona, 56 Comp. Gen. 989, B-188369, 77-2 CPD ¶ 229, Sept. 27, 1977, which can be found at https://www.gao.gov/products/b-188369. A recent discussion of Four-Step can be found in an article in the May 2019 issue of Contract Management magazine entitled, "Raising the Dead: Resurrecting the Four-Step Source Selection Procedures," by John Krieger. It mentions the use of a similar procedure by the Defense Health Service when conducting an acquisition under FAR Subpart 8.4. DHA's RFQ included the following language, as quoted by the Court of Federal Claims: Although the agency lost protests of that acquisition on other grounds, neither the GAO nor the Court of Federal Claims expressed any concern about the procedure used. There was no protest against the use of the procedure. It appears to me that there is no bar against conducting one-on-one negotiations with a selectee prior to award under FAR 8.4 or 16.505. If you plan to use it, be sure to explain what you are going to do in your solicitation or "fair opportunity" announcement. However, I think that if a CO is conducting an acquisition under FAR Part 15 and plans to conduct one-on-one negotiations with the selectee prior to award, he or she must first comply with the rules in FAR 15.306 pertaining to the establishment of a competitive range and the conduct of discussions with all offerors within the range. I think those rules and the discussions law behind them, 10 USC 2305(b)(4)(A) and 41 USC 3703(a), have outlived their usefulness. The procedure that I proposed in my opening post for use under Part 15 requires elimination of the discussions law requirement for a competitive range and discussions with all offerors within it. I have written an article for June issue The Nash & Cibinic Report, which is now available. The article is entitled, "Repeal the Discussions Law: It's Preventing Discussions." I will provide it to Bob for further publication at Wifcon, probably some time next week. Four-Step is NOT a streamlining technique and was not adopted for streamlining purposes. It was adopted to prevent what were called "technical transfusion" and "technical leveling" in R&D. The only part of it that interests me is one-on-one negotiations with a selectee prior to award.
  8. You did, ji. Please don't take my comments as criticism. Seven months is a lot better than others have done. I have seen other task order competitions that did the whole Part 15 nine yards, take a year, then loose the protest!
  9. I must say that the process described in that procurement is very, very different from the process that I described in my opening post. It seems to have been much more complex. The main similarity is one-on-one negotiations with the selectee. The acquisition was for a new "biometric analysis system" and appears to have been worth about $100 million. Here is how the GAO described the "fair opportunity process" under what a GWAC: That's not the entire description. The agency announced the task order opportunity on February 19, 2017, received four oral presentations followed by three written proposals, and issued a task order on September 28. So the "fair opportunity" process took seven months. It appears that much of the material submitted by "offerors" to the agency was the typical technical proposal stuff. It's not clear how much was promissory and how much was merely intentional. It is noteworthy that the evaluated price of the winner was more than $100 million less than the evaluated price of the protester, which may have had something to do with the decision. The process described in the first of the two paragraphs that I quoted from the GAO decision is much, much more complex than what I have in mind,. Moreover, the decision says that the agency conducted "discussions" with offerors and asked for "final proposal revisions." That sounds like a FAR Part 15 source selection instead of a FAR 16.505 "fair opportunity" process. Instead of going through all of that rigmarole to provide a fair opportunity to be considered I would have selected a contractor for negotiation based on an oral presentation of the system design approach, past performance on biometric system development, and a price quotation. I would then have asked the selectee for an offer including a SOW, a System Performance Specification, and a price—and then negotiated one-on-one to agreement. If I couldn't reach agreement with that contractor, I would have gone to the second-ranked. It is not my intention to criticize the agency that conducted the acquisition. I'm sure that they thought their process was just fine and worked out well. Their program is still underway. I think it missed two target dates. My intention is to make it clear to anyone who reads the protest decision that what is described therein is nothing like the process that I have in mind.
  10. Offers (promises) are compared to each other and ranked on the basis of how relatively "promising" (advantageous) they are. Offerors are not compared to each other. Instead, the CO determines whether the offeror that submitted the most promising offer (MPO) is responsible, in accordance with FAR Subpart 9.1. Pass or fail. If the CO determines that the offeror that submitted the MPO is responsible, then the CO negotiates with it to reach final agreement on nonprice and price terms. There is no competitive range determination; no "discussions" are conducted with the other offerors; and the CO makes no determination of the other offerors' responsibility unless negotiations with the first offeror fail, in which case the CO goes to the offeror that submitted the second-ranked MPO.
  11. Sorry I confused your response. I am getting old. I'm glad you like the idea.
  12. Yes, it could be done under the "fair opportunity" process. (Some agencies are determining a competitive range and conducting Part 15 discussions!) And I don't think you would need the responsibility determination.
  13. Culham: Congress is not going to change the COC process. Ours is a very imperfect world. Baby steps. I'm okay with you not liking the idea if that's your only issue.
  14. Yes, it would mean that. But more of them might do well if we get rid of the essay-writing contests.
  15. This process would raise the specter of referral for a certificate of competency if a small business that submits the most promising offer is found to be nonresponsible. But concerns about that can be alleviated through the use of well-crafted special responsibility standards, which the SBA will honor. I doubt it would be possible to persuade Congress to change the COC program.
  16. 1. No more so than the definition of "best value." There will of course be complaints about the choice of which offer is most promising, but that is unavoidable in any competition. 2. Elimination of the requirement for a competitive range and discussions with all offerors within it will require a statutory amendment and FAR change. 3. Well, training will always be an issue. There is little you can do without people who are well-educated and well-trained. But this process would be simpler than the current process.
  17. No communications with offerors after receipt of offers and prior to selection of the most promising offer (MPO). One goal is to eliminate all protests associated with exchanges after receipt of proposals. That's why the MPO may include weaknesses, significant weaknesses, and even deficiencies. The MPO may be legally unacceptable (may fail to conform to material terms of the solicitation), subject to negotiations. As for the responsibility determination, the CO will be able to communicate freely with the selected offeror about responsibility during that determination process. No need for clarification/discussion dichotomy. (The GAO does not apply the discussions rules to that process even now.)
  18. Yes. Model contract with blank spaces. Model contract might include a short statement of objectives instead of a SOW. Offerors respond with their own statements of the work they will do to achieve the government's objectives. That's a key objective. No more essay contest "technical proposals" that are not promissory in nature. Back to contract formation basics: offer (promises) and acceptance. Offer promises to be "commitments to act or refrain from acting in a specified way." Another objective is to get away from "competitive range" and "meaningful discussions" protest fodder. Requests for responsibility information to be in the form of questionnaires similar to SF 1403, 1404, etc. series. No more proposal design issues, page limitations, etc. Less expensive for offerors.
  19. @dsmith101abnThe only thing that GAO got wrong was that they took five pages to rule against the agency in the Master Pavement protest. They should taken only three, like they did in the other decision. Or maybe two, but that might be pushing it. GAO's decisions are consistent with FAR and based on long-standing sealed bidding case law.
  20. What do you think of this as a possibly new source selection procedure, assuming that statute and FAR are changed to allow? Step 1: Agency solicits offers (promises) and offeror responsibility (FAR Subpart 9.1) information. Step 2: Agency evaluates, compares, and ranks all offers and identifies "most promising offer" (based on nonprice and price promises) without discussions and regardless of any weaknesses, significant weaknesses, or deficiencies. Step 3: CO determines responsibility (FAR Subpart 9.1) of only the offeror that submitted the most promising offer based on both general (FAR 9.104-1) and special (FAR 9.104-2) standards of responsibility. Determination of responsibility not subject to rules in FAR 15.306. No distinction between "clarification" and "discussion" with regard to responsibility. CO may request and receive any information pertaining to responsibility. Step 4: If offeror is responsible, agency conducts one-on-one negotiations to agreement on nonprice and price terms. No competitive range. No "discussions" with other offerors. Negotiations are unrestricted, but agency cannot change scope of prospective contract from what was described in the solicitation. Step 5: If agency and offeror reach agreement, CO awards contract. If they cannot reach agreement, CO goes to second-ranked offer.
  21. Carl Culham simply does not know what he is talking about. Some of the things he said in the closed thread and in this continuation are so wrong that it would take an article of law review length to address them all. For example, his the notion that the Department of Labor is a "third party beneficiary" is absurd. If there are any third-party beneficiaries under an SCA-covered government contract they would be the contractor's covered employees. He clearly does not know what he's writing about. He is immune to evidence and argument and simply insists, and with each post he wanders further down the nonsense path. Carl was apparently traumatized by his experience with the Forest Service (USFS) when it and the DOL were criticized by Congress for not looking out for the foreign workers. The trauma has spun him off to an unorthodox, extreme, and unwarranted interpretation of FAR Subpart 22.10, FAR 52.222-41 and FAR 52.246-4. His experience was unusual because of the location of the worksite, and the deal worked out between the USFS and the DOL departed from standard governmentwide practice. The DOL authorized USFS personnel, pursuant to 29 CFR Part 4, to conduct interviews with certain contractor employees because they were working in remote forests. That is confirmed by the text of the hearings that he referred us to in the prior thread. Everyone is entitled to an opinion. I would not be bothered if Carl said that COs should take an interest in a contractor's SCA compliance, promptly notify the DOL about any complaints, and comply with its instructions, but he took an extreme position in the prior thread on May 16, at 5:03 PM when responding to ji20874, who said that the DOL is responsible for SCA enforcement and that was okay with him: Carl has been wrong in all his substantive points, as several persons have pointed out. He ignores that fact that FAR Subpart 22.10 and 52.222-41 must be read in conjunction with 29 CFR Part 4. He ignores long-standing and widely-accepted SCA practice. His invocation of the guiding principles to interpret a contract clause has been refuted by the Civilian Board of Contract Appeals, as cited in the prior thread. His interpretation of the Inspection clause, FAR 52.246-4, is inconsistent with FAR Part 46, which prescribes the clauses, and the plain language of the clause, and is unsupported by anything other than his say-so. I see nothing wrong with an argument that COs should be interested in a contractor's SCA compliance, but Carl is wrong to suggest that untrained people should go out and conduct interviews of contractor employees without DOL authorization, if for no other reason than such interviews by untrained contract specialists might squirrel an ongoing or future DOL investigation. According to the congressional hearings to which he referred us, the USFS personnel who conducted interviews in the forests were given special training by the DOL. Nothing in FAR Subpart 22.10, FAR 52.222-41, or 29 CFR Part 4 justify any such course of action, and "inspection" pursuant to FAR 52.246-4 does not encompass such an activity or give a contracting officer any contractual right to do so. I respect Carl on many contracting matters, but not on this. I will not give him or this thread another moment of my attention. A thread like this should not be on the Wifcon Beginners page, if on any Wifcon page at all.
  22. @formerfedDisregard my last request. I have found a treasure-trove of information. Thanks. Vern
  23. @formerfedDo you have a copy of an agile contract for a major system acquisition? I want to see one of those and what terms it contains. What provisions do such contracts make for maintaining a system configuration baseline? Or do they not require such a thing? Have you seen one? I'm not talking about a pure services contract, but a hardware/embedded software system development contract. Or are you talking about stand-alone development of software that is not to be embedded?
  24. Jamaal, Are you saying that, as a general proposition, the parties to a weapon system development could complete a supplemental agreement in less time than it would take for the government to issue a change order? Are you saying that a changes clause is not necessary in such contracts?
  25. @Don MansfieldI think you think that coding is coding, no matter what you're coding for. But in systems development the embedded software affects the operation of components that must work in conjunction with other components in order for the system to work properly. A change in one component can affect the design and development of other components. That's why you need a changes clause and configuration management procedures. The software is not an independent system. It is a subsystem and must work with other subsystems that have not yet been fully developed and tested and that will change during the course of the development process.. Think F-35, and the software problems that come with trying to do something no one has done before.
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