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Vern Edwards

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Everything posted by Vern Edwards

  1. First, I think you meant that the prime is asking, not the sub. You said you are the sub. What do you mean? Second, I think you may have asked the wrong question. Is the question whether they can do the things they have done, or is the question whether you have to do the things they have asked you to do?
  2. See Army Lawyer, Issue 4 2020, p. 52: Considerations for the New Contract Trial Attorney: A Primer on Costs, Fees, and Interest in Contract Appeal Litigation By Major Meghan E. Mahaney. https://tjaglcs.army.mil/documents/35956/57374/The+Army+Lawyer+2020+Issue+4.pdf/7964b22e-24b2-3bac-35a9-e9cf723e6059?t=1617224201879 Very enlightening.
  3. @joel hoffman @Retreadfed See Servidone Construction Co. v. U.S., 931 F.2d 860, 862 (Fed. Cir., 1991): Footnote omitted. And that is one reason why COs should settle claims promptly, especially at today's 4% Treasury prompt payment and Contract Disputes Act interest rate.
  4. @formerfedI don't think everything is spelled out in detail. Take a look at FAR 15.305, Proposal evaluation. That doesn't spell anything out in detail. That section assumes that a workforce that has received little if any education in decision-making processes knows what evaluation is and how to do it. Take a look at FAR 15.306(d), Exchanges with offerors after receipt of proposals𑁋the discussions rule. At first glance that might seem to spell things out in detail, but it doesn't. Agencies have struggled for decades to figure out how to conduct competitive negotiations. But instead of figuring it out they award without discussions. Everybody thinks. But not everybody is an educated and trained thinker. Cutting and pasting is considered thinking. But, I think you know all that.
  5. Yes, but there is something very important to be learned here. Several of us who have been most involved in this thread have been experienced COs who have administered many service contracts subject to the SCA (now SCLS), yet we have been unable to agree on how it works. When enacted in 1965 and published in the Statutes-at-Large (79 Stat. 1034) the law was about 3-¾ pages long. Yet the FAR, DOL's regulations and other publications, and administrative and court decisions about the Act amount to many thousand of pages of rules, guidance, and decisional case law. I suspect that very few COs would call themselves experts in its implementation and administration. I certainly wouldn't. This is typical of the rules governing the socio-economic programs, as we have seen in other debates here, including debates about the Buy American Act and the Trade Agreements Act. On October 13, the DOL published a 58-page notice of proposed rulemaking in the Federal Register: Judging from the past, when the final rule comes out the Federal Register announcement will be much longer than 58 pages. All to determine the difference between an employee and an individual contractor. On July 15, DOL published a 45-page notice of proposed rulemaking to implement the executive order about nondisplacement of qualified workers. The acquisition system has been submerged by hurricanes of new political programs, laws, regulations, policies, and procedures that have little if anything to do with acquiring supplies, services, and construction. The acquisition workforce is being drowned in paper. This is all par for the course, but most members of the American public have no idea about what has gone on and will continue go on. And no one knows whether the benefits exceed the costs. It doesn't seem to matter.
  6. Because delivery orders under GWACs and MACs are not traditional delivery orders under IDIQ contracts. They are really new contracts. The various divisions and individual offices within agencies that place orders under GWACs and MACs have local concerns and follow local procedures that GWACs and MACs do not address, but that those offices would ordinarily address under new contracts. So they want to add clauses to their orders that address their local concerns and procedures. And COs are sometimes unsure about the applicability of their agency FAR supps to orders placed under GWACs and MACs.
  7. Can you do it? I don't know. I want to emphasize that. But if I had to place a bet, I'd bet that an audit of orders against any of the various GWACs would show that ordering works like TEGWAR, The Exciting Game Without Any Rules. For more about TEGWAR, see the 1973 movie "Bang The Drum Slowly."
  8. I don’t think the law firm’s discussion supports your view at all. But I agree to move on. We’re not getting anywhere. Again, good research by you.
  9. I agree with that. But where I think we may part company is that I believe the contractor will not be found to have violated the SCA because it did not pay increased wages and fringes in accordance with the revised WD before the CO attached it to the contract. I think what will happen is that after the CO attaches the revised WD to the contract the contractor will have to pay the increases back to the WD's effective date, and the contracting agency will have to make an equitable adjustment back to that date. I knew you would do more research. Good for you! I did more research, too, and was unable to find any DOL decision holding that a contractor is obligated to pay the increased wages and fringes in a revised WD before the revised WD is attached to the contract, or that a contractor that had not done so had violated the SCA. And I found the following, writTen by a partner at the prominent law firm Piliero Mazza, which has represented government contractors hundreds of times before the GAO, the boards of contract appeals, and the Court of Federal Claims: https://www.pilieromazza.com/how-new-minimum-wage-and-service-contract-act-health-and-welfare-rates-apply-to-your-contract/
  10. I have used that contract clause, 52.215-10, as the basis for a reading test in classes for more than 15 years. In a typical class of 25, in which one-third to one-half of the students have graduate degrees, mostly MBAs, but also some law degrees, maybe one or two students get the right answer for the right reason. I have put experts to the test, and most have answered incorrectly. Professional reading is a professional skill.
  11. I just checked FAR 52.215-1 as a whole, and the Gunning Fog result was 18.1, difficult to read, college graduate level. For more on computerized readability tests see https://www.researchgate.net/profile/Dennis-Fisher-3/publication/15614441_How_reliable_is_computerized_assessment_of_readability/links/0046352e889c94bea9000000/How-reliable-is-computerized-assessment-of-readability.pdf
  12. I just ran 15.306, 31.205-6, 52.212-4, and 52.215-10 through Gunning Fog and got the following results: 15.306 --- 17.3 difficult to read 31.205-6. --- 12.6 hard to read 52.212-4 --- 12.6 hard to read 52.215-10 --- 20.9 very difficult to read; the highest level of difficulty
  13. Did you run the entire FAR or just a part? If you ran the entire FAR, you probably got a lower number than if you ran particular parts. Try running Part 13, Part 25, and Part 31 and tell us what you get for each.
  14. I'll send a message to you at Wifcon mail. It won't be ugly. The paper isn't bad. It's just more of what we've heard a hundred times, with slightly different emphases. I swear, I think I'll puke on my keyboard if I read innovate, innovation, or innovative in one more white paper. And I don't think technology will solve our problems. It has already made our old problems worse. But if technology is what you're selling...
  15. Word count, in and of itself, is not a very important problem. Complication, complexity, and lack of clarity are much more important problems. If I had a choice between fewer pages and clearer text, I'd take clearer text.
  16. @BrettKYes, some, but not for public disclosure.
  17. I didn't speak for you. I spoke about you. We have arrived at the point of reaching for extreme interpretations, e.g., the "revised" WD is not "new." I see no point in continuing to argue endlessly with mania. But I will say that if you had gone to law school you would have been one relentlessly and frighteningly facile, drag-me-to-hell, better-call-Saul attorney, and I mean that as a compliment (of sorts).
  18. Joel, you are now that lamp post you once mentioned. Carl's mind is made up. Move on. There's nothing more to see here.
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