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Vern Edwards

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  1. Two questions: 1. When the government makes "multiple awards" pursuant to FAR 16.505(c)(1), is it--- (A) awarding a single contract with multiple parties, each of which is severally liable or (B) establishing a pool of multiple separate contracts with the same terms? 2. As a practical matter, does it make a difference? These are not "trick" questions. I am trying to answer them for myself and want to see what others think.
  2. I do not know of any agency that has set a rigorous, objective, and documented standard of knowledge and ability for the appointment of contracting officers, now or at any time in the past. Nor do I believe that there ever will be such an agency in the United States. Particular offices within agencies have been demanding from time to time, but none have been so consistently, and the need for enough COs to keep work moving has likely been a factor in many appointments. It is also likely that many COs have been appointed because their superiors considered them to be ambitious, earnest, smart, and promising; because they had done a good job on some project; because it was feared they might leave if not appointed; and because they were well-liked, rather than because they were especially knowledgeable. Such persons tend to have "sponsors." CO "boards" and "exams" have never been especially demanding, though they were asserted to be so, and it is common practice to "prep" candidates for "boards." A serious CO exam would test for knowledge of a lot more than just the FAR, and would test skill at analysis, reasoning, and written and oral argument. The proof of what I've stated can be found at beta.SAM.gov. Read the RFPs. If COs were on average more knowledgeable in the past, it is likely because (1) the public education and college systems were generally better in the 1950s and 60s than they have been in more recent decades and (2) CO positions tended to be supervisory; GS-1102s didn't get promoted as quickly as they do now, so they spent more time as working level contract specialists before they were appointed. If agencies were to start appointing COs on the basis of rigorous, strictly applied standards of knowledge and ability, there would many fewer COs than there are now, and not enough to get the work done. There are some smart, knowledgeable COs out there, but not enough.
  3. I didn't say it is not possible; I said I didn't think there was much chance for the ordinary CO. I think it would be a good idea if you can get in the door and if you know what you're doing. But having worked for a four-star, I can tell you that even getting 15 minutes ain't easy. His or her immediate staff will see to that, unless you worked for him when he was a major and he thinks highly of you. Even then, very high ranking persons are very political persons, and if the program manager wants in, he or she is likely to get in. Better bet is to learn to write a good memo, which is something of an art when you're writing for a high-level person. (A person who can write a good memo is worth their weight in platinum.) But give it a shot. What have you got to lose? Again, just sayin'
  4. Such programs are highly political. I have no overall recommendation for source selections in such programs other than to keep the process as simple as possible. Each service has its own culture and its own norms, which affect point of view and willingness to simplify. But I will say that everyone is looking to speed up the process, which means that if you can devise an approach that will reduce time to selection without undue risk, this is a good time to try to sell it. We know that design competitions have not worked especially well, but engineers are big players in such programs and they seem to like design competitions. One of the program managers for the B-2 bomber told me that the most important thing is offeror capability, but that's often judged on the basis of design-type information. Here's the main thing to remember about keeping it simple: The more evaluation factors you have and the more complex they are, the more information you're going to need from offerors. The more information you get from offerors, the more information you'll have to process. The more information you have to process, the more people and/or time you'll need to process it. The more people involved in the process, the greater the risk of a screwup. The key to speeding up the source selection process and reducing the risk of protest delays (like on JEDI) lies in the choice of evaluation factors.
  5. The SSA for a big program might be a three-star, a four-star, or a service secretary. I doubt there is much chance of a GS-13 to GS-15 CO getting a private meeting, i.e., without the colonel, BG , MG, or SES program manager and maybe the Staff Judge Advocate. You'd have to be a very prestigious CO to be able to make that happen. Moreover, there are going to be a lot of other people, including the contractors, who will have (or want) a say in how it gets done. Just sayin'.
  6. Makes sense to me. Or you could just say that no more orders can be placed against A's contract because the maximum quantity has been purchased. So as long as quality and price agreement can be reached with B, this order and all future orders will be placed against B's contract until the maximum is reached or there are no further requirements.
  7. What follows is not a criticism of ji20874. It is a criticism of an idea. Apparently, the idea is that offerors will describe their "approach" and the agency will draw inferences about their relative understanding based on what it reads those descriptions and then make understanding/price tradeoffs. I wish the folks who evaluate "understanding" and "approach" would explain those terms in their solicitations. What is "understanding" and how do you measure it? On what kind of scale? Is it a dichotomous or polytomous attribute? Whose understanding is being evaluated? Can a company have a discernible "understanding" or do only particular persons in a company have an "understanding"? If a company, in what consciousness does it reside? If only particular persons, do you ask for the names of those persons? Must they be the authors of the "approach" description? Would it matter if the "approach" description were authored by or with the assistance of a consultant or team of consultants who won't actually work on the contract? What is an "approach"? Is it a set of promises about what an offeror will do or refrain from doing, or is it contractually irrelevant? If a set of promises, does a lawyer check it for essential language of promise? The idea of the paper "technical" proposal can be traced back to the Air Corps Act of 1926, 44 Stat. 780, Section 10, which authorized the conduct of design competitions for airplanes. That was a major departure from the otherwise required method of "formal advertising" (now called "sealed bidding").The design competition idea was never fully successful, and in the early 1960s the military, led by the Air Force, began conducting "management" competitions, instead. They instructed offerors to describe their "approach" to design and program management, because paper designs were not sufficiently reliable. You can judge from the histories of weapon system programs how effective management competitions have been. When CICA opened the doors to widespread use of competitively negotiated procurements by all agencies, instead of sealed bidding, everyone looked to the military for how to conduct source selections, and now we see requirements for technical proposals and descriptions of "approaches," and evaluations of "understanding" in all kinds of procurements---a product of our cut-and-paste, bandwagon-chasing acquisition culture. (It's what we have instead of a critical thinking culture.) All that source selection hoorah that takes so long and costs so much and prevents contracts from being awarded at "the speed of relevance." The important DOD JEDI procurement has been delayed for more than a year due to a protest of a "technical evaluation." Other procurements have actually taken longer than World War II to complete, from release of the solicitation to successful source selection. Oh, well. Never mind. Our acquisition "leaders" and their followers don't know the history of their business and don't have a simplicity gene. And so we solicit essay type proposals and make understanding/price tradeoffs, as if we know what we are doing and what we are paying for.
  8. Oh, just issue a task order to the contractor who hasn't reached the max! You awarded to two contractors and one has reached the max. The contractor who has reached the max is done. Try to increase the max without competition and you'd face the possibility of a protest that you"d probably lose. See FAR 16.505(a)(10)(i)(A).
  9. @MAY-D-FAR-B-WIT-UOne day, probably when the Four Horsemen of the Apocalypse show up on the horizon, you people in the field will learn to keep it simple. You're well-intentioned, but incorrigible complexity fanatics. A threat to national security. Source selection is child's play until it's in the hands of the "professionals." I'm serious. Deadly serious.
  10. B-417984, B-186873, B-233029, B-238496, B-249497. You're going to be disappointed. They don't say much other than that the agency thought profit was too high. Literally one or two sentences, at most. There is no detailed analysis or discussion beyond that. There have been no protests sustained on that basis. Waste of time. On the other hand, there have been 142 protest decisions involving FPI contracts since 1981. I have no idea what they have been about. No, I'm not going to send you a list. I'm too busy. Get your lawyer to download the list for you from LEXIS or Westlaw, then use the B-numbers to Google them. And I agree with ji20874 that you should look at the target price (or ceiling price) and forget about the profit. Fixed-price incentive contracts are the most studied of all contract types, and they have never, ever, been shown to work as advertised. They are needless complications. They are a public nuisance, and should be banned. If I were running a contracting shop today I would absolutely prohibit their use. If I were your boss and if the RFP were still on the street I would order you to amend it and change the pricing arrangement to firm-fixed-price or cost-plus-fixed-fee---anything but FPI. And be glad you're not doing a price realism analysis. Price realism is a protest swamp. Price realism for FPI(F) is a grave.
  11. What do you mean by "price ceiling"? Are you talking about the "maximum" mentioned in FAR 52.216-22(b)?
  12. @joel hoffman Joel, I'm not sure what you want me to clarify. Please explain. If you're talking about IDIQ contracts and the issuance of orders, once the government has bought the minimum the issuance of any further orders is voluntary. Orders are exercises of options to buy additional quantities. There are many reasons why the government might choose not to issue further orders to an IDIQ contractor: no requirement, poor past performance, suspension or debarment, some other disqualification, or some other reason. The contractor has no right to further orders. To me the rules in FAR Subpart 4.21 seem very straightforward. I can understand why some contractors would not like them, but the government is not your ordinary customer and government contractors must be prepared for such things. None of this seems as shocking as an unexpected termination for convenience, but they are not at all uncommon. Nor is this the first time COs have been instructed to negotiate new clauses into existing contracts. Why the strong reactions from some people? The issues seem to be mere practical matters. I stand by my earlier response to the OP: 1. change the contractor's mind, or 2. change your mind and seek a waiver, or 3. say goodbye to the contractor when the current contract ends.
  13. @C Culham Yes. When I used the phrase "exercise the option" I was referring to the action of the party who has the right of exercise. In a government contract, that's usually the government, not the contractor. So if the government asks for a change to the terms of the contract as a condition of exercising its option, and if the contractor refuses, the government can still exercise the option as it is, and the contractor cannot decline.
  14. @Neil Roberts I didn't mean that the CRS report is malarkey. I meant that the following assertion is malarkey: I sincerely apologize for "malarkey." I should just have said that I disagree. Here's why: The law conditions the creation of new contractual relations and the voluntary extension of current contractual relations upon assent to certain terms. The relevant passage says: FAR 4.2104 states: According to the FAR councils, the law and the regulation are designed to protect citizen privacy and national security. What I understand the statute and regulation to do is prohibit new and extended voluntary relations. New contracts and the exercise of options are voluntary undertakings. With respect to options, any party to a contract is free to seek changes to the terms of an option and to decline to exercise the option if the other party will not agree. A contractor has no contractual right to expect a contract extension that is not contractually required, and neither the statute nor the regulation prohibits a CO from agreeing to an extension to which a contractor is entitled, such as an equitable time adjustment after a contract change or a time extension as compensation for a government breach, such as late GFP. Neither the statute nor the implementing regulation requires existing contractors to accept the new clause. They don't require the termination of a contract in case of refusal. Acceptance is entirely voluntary. Moreover, the statute provides for waivers. I cannot see how the law or the regulation interferes with existing contractual rights. I don't see any breach of contract. I don't see any bad faith or unfair dealing. Do you, Neil? But you might change my mind by making an argument instead of just dropping a 20-page maybe-this-maybe-that report in here and alluding to a vague possibility without explanation. If you think the CRS report points the way to particular possibilities in this matter with respect to contract interference, why don't you tell us about it? I'm eager to read what you have to say.
  15. Malarkey. The CRS report is irrelevant. There is no "taking" issue. It is well established that a contractor has no right to the exercise of an option. See, e.g., Puget Sound Environmental Corp., ASBCA 58828, 16-1 BCA ΒΆ 56465: Does anyone think that Congress acted in bad faith when it enacted the law or that the FAR Councils act in bad faith when they promulgated the implementing regulations? This is government contracting. Deal with it.
  16. Neither do I, but there must be something, because agencies keep coming up with them.
  17. Ten pages in each of 1,000 expected responses comes to 10,000 pages to be read by the evaluation team. Why don't they just give contracts to all of the 1,000 and let the ordering agencies decide which ones they want to do business with? Honestly, it make me very sad to know that I won't live long enough to see my country have an intelligent contracting process.
  18. The FAR does not impose a duty on the part of contractors to accept the clause. It imposes a duty on contracting officers to either (1) persuade contractors to accept the clause or (2) refrain from exercising an option to extend. The common law of contracts imposes the requirement for consideration.
  19. Let's sort out the issue of consideration. If the parties to an executory contract are going to modify it in a way that is not already provided for by a contract clause, such as the Changes clause, then consideration is required by the common law of contracts. See Keeter Trading Co., Inc. v. U.S., 85 Fed. Cl. 613 (2009): The parties would have to agree on what would constitute adequate consideration.
  20. @Retreadfed I don't think so. FAR says to include the clause in "all" contracts. I think that means what it says, regardless of the date of award. I'm open to being wrong about that, but in light of statute and regulation I need some authoritative reference. As has already been pointed out, FAR 1.108(d) says, "Unless otherwise specified..."
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