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Vern Edwards

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Everything posted by Vern Edwards

  1. @joel hoffman52.212-4(c) says, "(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties." "Change," as used in that clause, isn't defined by FAR, so we must resort to the ordinary dictionary definition. See FAR 1.108(a). I don't buy that adding new work to a contract is not a change. What is the "authority" for adding new work to a contract? To me, it's mutual agreement. It's the agreement of the parties that allows the CO to add the new work to the contract. True, that authority must be exercised in accordance with FAR Part 6 and other requirements. But those are "prerequisites" to the exercise of that authority, not the authority to do it, since, pursuant to the terms of the contract, it can be done only by, let's see, "mutual agreement." And FAR 52.212-4(c) is not the authority. It doesn't authorize anything. It merely sets a condition precedent to a change. By the express terms of the clause, "mutual agreement" is what's needed to authorize the change.
  2. Hmmm. The term "period of performance" appears in FAR (48 CFR Ch. 1) only four times with reference to IDIQs. Twice with reference to the contract and twice with reference to the order: 16.504(c)(ii)(A)(4) - contract 16.505(a)(2) - contract 16,505(b)(2)(ii)(A) - order 16.505(b)(2)(ii)(B)(4) - order It does not appear in any of the FAR IDIQ contract clauses. "Ordering period" appears only twice in FAR, in 16.505(c)(1) and (2)(i). I could not find any use in FAR of "effective date" in connection with IDIQ contracts. So who is "we" and what is the "usually" based on? Has there been a poll or survey? I did find "effective period" in FAR 52.216-22. 😉
  3. FAR 16.505(d) says "consistent with," not in strict accord with. If I were awarding a single-agency multiple award IDIQ contract I would write the contract to say that when providing a fair opportunity for an order I would follow FAR 36.6 procedures, but would rely on the original SF 330s, but would tailor the 36.6 procedure to reduce the time and cost of competition. Or something like that.
  4. Yes, but FAR 16.500(d) appears to indicate that you must follow 36.6 when placing orders even under single-agency contracts. I misled you by my first post. I forgot about FAR 16.500(d). I apologize. A Mae West, but I deployed my reserve.
  5. @dsmith101abnOops. I forgot something. See FAR 16.500(d) regarding placement of orders.
  6. @dsmith101abn FAR 16.505(a)(9) says: FAR 16.505(b) does not say that. Does that suggest anything to you?
  7. The topic of the proper entry in SF 30 block 13 has been discussed here several times. Please check the Wifcon Forum archive. What is clear to me on the basis of experience is that COs can put anything in SF 30 block 13 that they can get reviewing authorities to agree to.
  8. Yeah, but it's the Director of OMB, not the Administrator, who decides what will be done under that law. Congress can legislate, but OMB executes. I don't expect anything of any significance to come out of OFPP unless and until we get a presidential administration that understands that it cannot get anything done without contracts and contracting, puts competent people in charge, and gets House and Senate leaders to assign all acquisition policy legislation to a single committee within each house of Congress. That, ain't ever gonna happen. DOD, GSA, and Congress itself won't let it happen. American government today is, and has been for a long time now, very big, very dysfunctional, and getting worse, and it isn't going to get better any time soon, if ever. Sorry for the pessimism.
  9. Instead of that, which doesn't mention DPAS, start with DoDD 4400.01E, Defense Production Act Programs. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/440001p.pdf?ver=2018-11-09-111906-183 Then look at DoD 4400.1-M, Department Of Defense Priorities And Allocations Manual. https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/440001m.pdf?ver=2018-12-11-110803-913 To the best of my knowledge, DPAS ratings are not controlled unclassified information. But check around.
  10. Here is an article from The New York Times of May 28, 1976, about OFPP when it was new. They quote Hugh E. Witt, the first administrtor, a very experienced procurement professional from DOD, and Lester Fettig (they misspelled his last name), who would become the second administrator. Note that Federal procurement, then a paltry 70 billion a year business, is now a one-half trillion dollar a year business. Note, too, the last line of the article. Note Witt's description of his office's powers of review. When DOD revised its acquisition policies last year I doubt that they even thought about OFPP, much less submitted their changes for its review. Of course, I could be wrong about that.
  11. Michael Wooten was nominated on May 7, 2019 and confirmed on August 1 of that year. So, unless something has changed, Gebre won't be in office before 2021. But, who knows, maybe the Senate will make Gebre's nomination a priority.
  12. Who cares? OFPP is dead. It is irrelevant to the issues at hand. He'll speak at conferences, give interviews, launch an "initiative" that will go nowhere, rate a profile in Contract Management magazine, and say encouraging things.
  13. For a long time the fastest manned aircraft was the North American X-15. (I think it still is), but it was a rocket plane, not a jet plane. There is a lot of good free stuff online about the X-15 Program and the rocket plane programs, and some good books. See The X-15 Hypersonic Flight Research Program, https://history.nasa.gov/SP-4219/Chapter6.html and X-15 Frontiers of Flight, https://www.nasa.gov/pdf/470842main_X_15_Frontier_of_Flight.pdf. I like books that focus on the aircraft, but there are a couple that focus on the pilots, like Scott Crossfield, Robert White, and Neil Armstrong. Two interesting such books are: Petty, Beyond Blue Skies: The Rocket Plane Programs That Led to the Space Age and Evans, The X-15 Rocket Plane: Flying the First Wings into Space. They focus on the pilots and the flights.
  14. The blank in 52.216-22(d) is supposed to state a date, not a number of months.
  15. Evaluation of professional employee compensation is a "technical" evaluation factor. See 52.222-46(b): The evaluation must be done for the initial award, but, in my opinion, need not for task orders. Agencies must require submission of an employee compensation plan, as required by the provision, and evaluate the offeror's performance capability accordingly.
  16. Yes, yes, sure. It's kind of an optional "requirement." Please. 🥱
  17. Well, actually, an FSS contract doesn't require the government to buy anything. They can just pay off a contractor by giving them the minimum dollars. That's true of all IDIQ contracts. And, in fact, I think the Federal Circuit ruled some years ago that the government can even terminate an IDIQ contract for convenience without paying off the full amount of the minimum.
  18. Note that in Footnote 8 the board cites the Supreme Court's unanimous decision in Kingdomware Technologies, Inc., v. U.S., 136 S.Ct. 1969 at page 1978 (2016). I think the board may have misunderstood what the Supreme's were saying. Here is what the Supremes said: If I understand Kingdomware correctly, the government ("Department of Veterans Affairs] argued that 31 USC § 8127(d), enacted in 2006, which requires VA set-asides under a "rule of two," did not apply when the underlying FSS contract was awarded and thus did not apply to orders issued under that FSS contract. The court found that placement of the FSS order created a "new contract" and that the rule of two applied to all such new contracts, even though the law was not in place when the FSS contract was awarded. The Supremes then muddied the waters with its discussion of "the underlying FSS contract." It's not clear to me that their "new contract" reasoning would not apply to all IDIQ contracts. But the board has interpreted Kingdomware to mean that orders under FSS contracts are different from orders under other IDIQ contracts.
  19. BTW, the last OFPP administrator told me that AI is going to eliminate a lot of contract specialist jobs. He said that if you can flowchart it you can automate it. Don Mansfield told me that a few years ago. I pooh-poohed it then, but not now.
  20. The decision contains two great quotes, though: There are members of this forum who could benefit from reading that passage. Here is the full quote from General Builders Supply, in context: BANG! Another great quote is: Another lesson learned. Terminology is important, people.
  21. It's my impression that OMB has closed OFPP in all but name. To the best of my knowledge the new president has not nominated a new administrator. The last president didn't get around to it until about two years into his term. It is a very low priority appointment. The executive branch does not understand that our government is helpless without contracts and contracting. Procurement policy and procedure are not important to presidents unless one of them or Congress wants to use procurement dollars for social program purposes. And DOD, the big buyer/spender, does not want anyone else making procurement policy for them. The OFPP Act has been subverted. Forget the OFPP. It's dead. Anyway, why take a class if you want to learn about AI? Just buy a book. But if you simply have to take a class, MIT is offering one online for only $3,600 or so. Starts tomorrow. Lasts six weeks. "Artificial Intelligence: Implications for Business Strategy." Ask your agency to pay for it. (You can read a good book about AI in less than six weeks.)
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