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Vern Edwards

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  1. Because in systems development you often have to change things on short notice and still meet a deadline, and you can't wait to negotiate a (bilateral) supplemental agreement. Next question, Socrates.
  2. @formerfed Yes, like when the Air Force called the C-130J a commercial item and got slammed by the Senate and the DODIG, see DODIG Report D-2009-074, June 12, 2009. That little trick resulted in Pub.L. 109-163, Sec. 135: And see DFARS 234-7002. DOD's JEDI Cloud is being done as a commercial item. How has that made that acquisition successful? Part 12 is an exception to standard contracting practice. Dumb contracting people are always looking for exceptions to standard practice, because they are incompetent. What is the point of buying under Part 12 if you have to tailor 52.212-4 to add a changes clause and clauses about configuration management and security? Many software acquisitions qualify as commercial. But in my opinion, only a fool of a CO would contract for the development of software that is to be embedded in a weapon system, an intelligence system, a security system, or a military space system as a commercial item. But that's just my opinion. People are going to do what they are going to do when they don't know how to do things properly. That's why we have so many rules, like the dumb rule restricting the use of LPTA source selection. Idiots were using LPTA to buy professional support services, thinking it is inherently faster and simpler than the tradeoff process.
  3. @Don MansfieldThey are not "of a type" because they are not "under standard commercial terms and conditions."
  4. Well, now, with a little imagination, you have your example: software development for weapon systems, intelligence systems, space systems, cyber security...
  5. @Here_2_Learn I presume that you mean: Does the government have to reimburse us for the $600K? If so, the answer is: Maybe. Do you want to know more? I'll give you 48 hours to respond. I'm not trying to be high-handed; it's just that I have other tasks to perform.
  6. Don: Are changes clauses standard commercial terms and conditions for software development? Are secret and top secret security classifications?
  7. First, you should comply with any NAF contracting policies and procedures that you are required to follow. If nothing in the policies addresses this case, then I would send the contractor a letter reviewing the circumstances, saying that you consider the contract to have been extended by mutual assent, and saying that you accept the check as fulfillment of the contract's terms. I would ask for confirmation of receipt and agreement. Unless someone in higher authority demands something more, i would consider the case closed.
  8. That's from The W. Edwards Deming Institute, "What really motivates us?" Emphasis added. https://deming.org/what-really-motivates-us/ For those who don't know, Demings was the man behind the application of statistics to quality assurance and continuous process improvement. He was instrumental in helping Japan develop its skill in and devotion to quality and innovation. https://en.wikipedia.org/wiki/W._Edwards_Deming I have read extensively on incentives in contracting. I do not believe they work. I have seen no persuasive evidence that they work, and neither have those who have researched their use. I think they are just gimmicks.
  9. Thank them for the check, and say goodbye or renew the contract. (NAF vending contracts are not covered by the FAR.)
  10. I'm going to take a hit for saying this, but that's a dumb question. I'll declare it myself: A violation of the rules! 😎
  11. No, I do not think PBA is consistent with Agile principles. PBA as practiced by the government is transactional. Agile contracting is relational. Very different.
  12. @formerfed I'm quitting this topic, because I don't get what you're saying. COs and CSs must have fallen very low in organizational esteem if they have to justify their "participation" in fact-finding prior to negotiation.
  13. @formerfed The contracting officer is preparing to negotiate a contract and the program office decides to conduct fact-finding and "invites" the CO? No. When a contracting officer is preparing to negotiate a contract the program office keeps its "mouth" shut until the contracting officer invites them to proceed, and then speaks only when invited to do so. It's the contracting officer who does the inviting, not the program office. You cannot have two parties independently representing the government in such a situation. There is only one mouthpiece, and that is the CO. Maybe I'm still misunderstanding you. You must be talking about presolicitation exchanges of information. Right? Please clarify!
  14. No, because 52.217-9 is not a mandatory clause. It is a clause to be used by choice; see FAR 17.208(g). There is no legal requirement that a contract include options. See also Life Machines Corp. v. U.S., 143 Fed. Cl. 267 (2019):
  15. @formerfed I presume that we are talking about the fact-finding that precedes negotiation of a sole source contract—the fact-finding that follows receipt of the prospective contractor's proposal and that is conducted in order to obtain information necessary for contract negotiation, including the negotiation of both nonprice and price terms. If my presumption is correct, then my position is that the contracting officer or contract specialist does not "participate" in fact-finding, but manages that process. It is the program office that "participates," in order to support the CO or CS. My first job title was "contract negotiator," not contract specialist, and I conducted many sole source contract negotiations. It was a routine assignment. I conducted fact-finding without program office personnel, but the CO's that I worked for, and I, when I became a CO, would not have countenanced allowing the program office to engage in fact-finding prior to negotiation without my presence or the presence of one of my CSs, except with my permission. I must be misunderstanding the intent of your posts in this regard, or what you mean by "fact-finding," because I find it hard to believe that you would advocate that a program office conduct fact-finding pending contract negotiation without a CO or CS being present, except with the CO's or CS's permission. And I have never thought that a CO or CS should have to persuade a program office that he or she had something to contribute to the fact-finding process in order to participate. I don't think there are "two schools." Who teaches the second school? Please straighten me out on this, formerfed.
  16. First, you should know that a 50 percent reduction in the work may be outside the coverage of any Changes clause. It may be subject to the termination for convenience clause, instead. Tell us which Changes clause is in the contract. Give us the FAR citation. FAR 52.243 dash what?
  17. Fact-finding is not defined in FAR and it appears in only four places. In my own experience the most pertinent reference is in FAR 15.406-1(a): The term appears in 41 places within the FAR System overall, in all sorts of contexts, including dispute resolution, debarment and suspension proceedings, payment of gratuities, etc. The DAU Contract Pricing Reference Guides, Vol. 5, Ch. 1 defines it as follows: Black's Law Dictionary, 11th ed., defines it as follows: CS0611 appears to be referring to the inquiry that precedes price negotiations in a sole source procurement. If so, then fact-finding is the province of the contracting officer, not the program office. See FAR 15.404-1(a)(1): The program office is merely support. As a contract specialist, I would not think I owed the program office any explanation of my value or benefit in fact-finding in a sole source negotiation. If I did, it would mean I was an abject failure. See FAR 15.405(a): Emphasis added. I led fact-finding in sole source acquisitions of research and development, development of spacecraft ground systems, development of anti-satellite systems, large-scale construction, and others. No one ever questioned my role in any of those cases. But I worked for disciplined professional acquisition organizations. If CS0611 is talking about a different kind of proceeding other than fact-finding to determine price reasonableness, then he or she should tell us.
  18. Visit the website of the Association of Proposal Management Professionals, www.apmp.org. They offer lots of training of that kind.
  19. See the DAU Contract Pricing Reference Guides, Volume 5, "Negotiation Techniques," in which there is extensive discussion of fact-finding.
  20. No. There is no clear line. In a sole source negotiation fact-finding is traditionally a part of cost analysis, and you may ask any questions you like that you think are pertinent to the matter at hand. Such questioning may continue into and throughout negotiation. Ask whatever questions you like in order to get the information you need to reach an agreement on price and mutual assent to contract terms.
  21. Actually, there are two JEDI protests. Oracle protested the single-award acquisition strategy and asserted conflict of interest in 2018. It lost at the Court of Federal Claims and at the Federal Circuit. It has now appealed to the Supreme Court in a 169-page petition. The petition is pending. Amazon protested the award to Microspft at the Court of Federal Claims in November 2019. The court issued a preliminary injunction in February 2020, and denied a government motion to dismiss in April 2021. That protest is still underway at the COFC. We don't need foreign enemies to hold up important defense programs; we have IT companies and the court system. This is all because Congress is still pursuing 19th Century contracting policies. God help us, because our government cannot function without contracts and contractors and Congress cannot get its act together about anything.
  22. HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES; Comptroller General Reports to Congress on Audits of Defense Contracts Available for download at Google Books. Just search for the title. More than 1,000 pages. Very large file.
  23. I think DOD has no choice but to rely on nontraditional firms, because they need IT, and the best sources of that are nontraditional firms. But I know that many nontraditional firms are put off by the regulations, the source selection processes, and the intrusiveness and untrustworthiness of the government as a customer. The don't like things like DOD's contractor business system rules. They are successful, and they don't need or want a bunch of bureaucrats coming in and telling how to pay their employees, manage their property, purchase goods and services, keep their books, etc. We need a president who realizes that they need contracts and contractors to implement their programs, that the contracting system is busily dysfunctional, and that they need to do something about it. They can't just leave it to Congress. Actually, we need two presidents---one who talks to foreign leaders and tries to solve problems that can't be solved in a four-year term, while pontificating to journalists and the public, and one who does the nitty-gritty work of making sure that the government operates effectively. One who handles problems like Iraq, Israel and Gaza, Taiwan, the South China Sea, and our relationship with Turkey, and one who makes sure we can get things like PPE and ventilators, military equipment, and disaster relief when and where we need them. One who postures and pontificates and one who manages and gets stuff done. The job is too much for one person. I'm serious.
  24. Are the hearings you're talking about, "HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES; Comptroller General Reports to Congress on Audits of Defense Contracts," May - July 1965? About 1,000 pages? In his opening remarks Holifield (one "l") said: Hearings, p. 3. Perhaps it is noteworthy that DCAA was created in 1965, giving DOD its own audit service.
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