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Vern Edwards

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Everything posted by Vern Edwards

  1. @SalusThat's a reasonable opinion. But keep in mind that government officials are bound by (1) statutes and regulations and (2) the terms of their contracts. NOAA likely complied with law and regulation as they were in 2018. Having done so, they cannot block a contractor from competing for future orders unless they have a legally supportable reason. The rise in the use of multiple-award task order contracts since the mid-1990s has been disruptive in many ways that were not anticipated when Congress authorized and set rules for their use in 1994. No one expected what has happened since, or the impact on small businesses. There are still issues to resolve with respect to small business policy. Your disappointment and frustration are understandable, but it does not sound to me like NOAA is deceiving or manipulating you.
  2. @SalusThe only agency empowered to determine a firm's size status is the SBA. SBA sets size standards and makes size determinations. See 13 CFR Part 121 and FAR 19.302 for details. An agency might have an opinion about whether a firm is or is not small, but that opinion has no official force. The SBA must make a determination, and FAR 19.302(c)(1) instructs contracting officers to refer their own or third-party size protests to the SBA. See also 13 CFR 121.403 and 13 CFR 121.1001.
  3. This is the kind of question that I find both fascinating and frustrating. Freyr apparently has both the IAA and the order for couches. We do not. Yet Freyr is here asking us what the limits of those agreements will permit. How would anyone here know? Most people seem to think that the answer lies in the agreements themselves. Why do people ask such questions? I think such questions arise from a belief or intuition that there is a generic answer that applies to all such cases, and Freyr wants to know what that answer might be. Why do people think such things? I wonder if it arises from training that leads people to believe or suspect that there is a rule for every circumstance and that it is known to someone or can be found: There simply must be a rule for what to do or what may be done in any given situation given specific facts. Maybe there is one BIG rule, like what scientists call "the God equation." It's the rule that will unify all rules and answer all questions. It will tell us why is there something instead of nothing. This is on my mind because I am reading a wonderful little book entitled, The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy, by the late, great, David Graeber. I would just mod the order and move on, with no thought about the IAA. What's the other agency going to do? Sue me? Why do we have an IAA with them in the first place? Are we doing the buying for them? Are they paying us? Can one agency terminate another agency for default? Then again, if I extend the delivery date in violation of the IAA, would it render the modvoid ab initio? And what if... And so it goes.
  4. I presume that your phrase, "these rules," refers to your bulleted list. If that is correct, then my reaction is that the list is just your description of what you think you were told by NOAA. As such, they are not descriptions of rules; they are merely your account of something that you think you were told. I've been around long enough to know that such accounts are not always reliable reports of what was really said. You said that the contract in question was awarded in 2018. Is that correct? If so, and if NOAA told you that it does not have to apply the recertification (aka, rerepresentation) rules that took effect late last year to a contract that was awarded in 2018, then it told you the truth. Actually, NOAA cannot apply them, because it would have no contractual right to do so even if it wanted to. Any attempt to apply them would be breach of contract. The new rules are contractually implemented by a new contract clause, FAR 52.219-28, Post-Award Small Business Program Rerepresentation (Nov 2020). Note the date of the clause. The new clause should not be in a contract that was awarded in 2018, unless it was added later through bilateral modification. Your contract probably includes the July 2013 version of the clause. The law does not give NOAA the authority to unilaterally modify the contract after award in order to implement the new policy. If you still have issues, then I suggest that you seek information and counsel from a law firm that practices in the field of small business law and regulation. Here's a truth about multiple-award contracts: To many of the firms that get into them, they turn out to be nothing more than attractive nuisances.
  5. I have long believed that what I call "self-study" is the best way to learn what you need to know to become the best professional you can. I define self-study as follows: "Self-study is an orderly process of learning about a topic by reading books or articles and thinking critically about their content, without the assistance of a teacher." I learned most of what I know by going to a quiet corner with a book in hand and reading and taking notes. For me, it started when, as a GS-05 Air Force acquisition trainee, I read a regulation about source selection and wondered about the meaning of "evaluation criteria." It started me down a path that I have never left. The Government has, for all intents and purposes, abandoned trying to educate and train its contracting personnel. No loss—it has never done a very good job. Generally, the official classes it provided were not excellent. But I recently bought a box of books that were printed by the Industrial College of the Armed Forces in the 1960s for a group "national security" self-study program in which my uncle, an electrical engineer with the old Rockwell Corporation, had participated. One of the volumes was devoted to "procurement." I think that, though now outdated, they are a model for a self-study program for contracting personnel. I have been in touch with DAU to encourage them to adopt such an approach to educating contracting personnel, but DAU has been slow to get off the dime. Some weeks ago, after I spoke with some personnel at a GSA regional office, a small group of them set out on a self-study program in which they agreed to undertake a five-week deep read of one long chapter in Administration of Government Contracts, 5th edition, by Cibinic, Nash, and Nagle, a book often cited at Wifcon. They are reading Chapter 2, Contract Interpretation, which is 171 pages long. I obtained permission from the publisher to copy and distribute the text of that chapter, and I wrote a short self-study guide for them. I am not instructing them, but I have provided them with supplementary reading material along the way. They are reading it all on their own time, without official sponsorship or assistance, because they want to learn as much as they can and be the best they can be, and they meet periodically to discuss what they have read. They seized the day and are undertaking the challenge. They are now nearing the end of their unofficial "pilot program." When it's over, I will meet with them to find out whether they think it was useful. I will report what I learn to you here or in a blog entry. Process improvement and innovation must be achieved through knowledge of concepts and principles. What is a contract? What are the canons of contract interpretation? My take on the acquisition workforce is that most of its members want to know more so they can do more and do better. If that's what you want, then you must accept that you will not get the education in concepts and principles that you need from your employer. You will have to learn on your own, through broad and deep self-study, the way that I and so many of my colleagues did. As my old colleagues and I get older, we are saddened to see the general decline in the professional status of the contracting workforce. We want to see a return to the professional standing that some of us once had as people deeply immersed in contracting concepts and principles and respected for what we could contribute, not as paper-pushers, but as thinkers. The path to that return is not through official classrooms and "certification" programs, but through books and personal dedication to career-long systematic reading and self-study. You will be what you teach yourself to be. "If knowledge is power we should look to its advancement at home, where no resource of power will be unwanting." —Thomas Jefferson, 1821.
  6. @Freyr What kind of interagency agreement? An assisted acquisition agreement under FAR 17.502-1(a)?
  7. @Fara FasatThanks, Fara. Got the message. I'll be more careful in the future.
  8. @Fara Fasat Maybe I should not have used the word "approval," if that's what's bothering you. Poor choice of word on my part. What a contractor or higher level sub puts into a commercial item subcontract is between the buyer and the seller. My bad. Satisfied? However, perhaps you'll acknowledge that the use of the word "may" in the clause seems to suggest that the government is saying that the contractor or higher tier subcontractor can add other clauses only under the specific circumstance. As for including FAR 52.245-1 in commercial item prime contracts, see FAR 12.302, esp. paragraph (c). Is GFP a customary commercial practice?
  9. See FAR Subpart 44.4 and 52.244-6 about the flowdown of clauses to subcontracts for commercial items.
  10. I agree completely with ji20874. If nothing in the P.O. says that tooling or assemblies become the property of the buyer, then tooling and assemblies are yours to do with as you please. Put FAR 52.245-1 out of your mind. You say it was not in the P.O., and I would not expect it to be in a subcontract for a commercial item without special approval.
  11. See this: "Identifying and Eliminating Barriers Faced by Nontraditional Department of Defense Suppliers" https://apps.dtic.mil/dtic/tr/fulltext/u2/a609831.pdf And this: "Government Contracting: Terms, Risks & Sanctions" https://www.crowell.com/files/Government-Contracting-Terms-Risks-Sanctions-San-Fernando-Valley-Bar-Association-April-2012.pdf
  12. See this: "Why Startups Don't Bid on Government Contracts" https://www.bcg.com/publications/2017/public-sector-agency-transformation-why-startups-dont-bid-government-contracts
  13. Espenschied, Contract Drafting: Powerful Prose in Transactional Practice (2010), American Bar Association Adams, A Manual of Style for Contract Drafting (2017), American Bar Association Burton, Elements of Contract Interpretation (2009), Oxford University Press Allen, How To Read A Government Contract: A Manual On Contract Interpretation For Acquisition Professionals (2012), Thomson Reuters
  14. @joel hoffmanWell, let's keep the focus on the issue of incorporating proposals. Technical proposals are usually read by technical personnel, who usually know less about contract law than contracting officers, who often know very little. Moreover, as the board pointed out in the MARCON decision, technical personnel sometimes evaluate proposals negligently. For that reason, incorporating even a part of a proposal, much less an entire proposal, into a contract is a perilous course of action, unless the contracting officer is a first-rate professional who knows how to do it safely.
  15. I don't have an answer to your question, but I will say that you shouldn't get into government contracting without first-rate legal and accounting advice, which is, admittedly, expensive. Government contracting is a howling wilderness of rules and procedures, and your company could be badly hurt out there, even ruined. On the other hand, large companies can be ruthless when dealing with naive smaller companies. In short, if you want to survive and prosper, then you need professional advice and counsel before entering into any kind of deal with anyone. You will skimp in that regard at your peril.
  16. Joel, Thanks. I've corrected the date.
  17. There's a 2015 ASBCA decision about a Corps of Engineers design-build contract that included the order of precedence clause that Joel mentioned above. It shows one of the things that can happen when an agency incorporates an offeror's technical proposal into a contract. If you're interested, Google "ASBCA 57471". You should get a link to the board's decision about the appeal of MARCON Engineering. You want the decision dated May 1, 2015. The decision is lengthy, but you only need to read the part about the drainage claim. Read the board's findings of fact numbered 33-37, which appear in pages 17-19, and the board's decision on the drainage claim, which appears in pages 39-46. Be sure to read footnote 9. Lesson learned.
  18. In a competitive acquisition, the parties may negotiate changes to a SOW to reflect what an offeror has proposed, as long as they don't relax any material requirement or otherwise make changes so great as would have affected the scope of the competition.
  19. Incorporating a proposal into a contract does not make the entire proposal binding. Only words clearly of a promissory nature will be binding. Incorporating a proposal into a contract does not convert non-promissory language into promises. Unfortunately, contracting officers today are not given even an elementary education in contract law.
  20. I have attached a detailed explanation. Comments, criticisms, and questions are welcome. Explanation to Sam101 from Vern Edwards.docx
  21. Secretariat was a great horse and my all time favorite race horse. Bucephalus is the most famous horse in Western history. According to historian Peter Green, in Alexander of Macedon, 356 - 323 B.C., Bucephalus was from Thessaly, where great horses were bred. King Philip of Macedon bought him, paying the highest price on record for a horse, but no one could mount him. Alexander—who was either 8, 9 or 12, depending on which account you read—bet his father in front of a crowd that he could mount him, and Philip took the bet. Alexander did it, and rode the horse to the cheers of the crowd. Philip was proud and told him that he would not be able to stay in Macedonia, because it would not be big enough for him. (That does not do justice to Green's account, which is in pages 41-44.) Bucephalus bore Alexander into every battle, from Greece, through Persia and Afghanistan, to India. He carried Alexander into the breach in the Persian line at Gaugamela, routing the bigger army and ending the Persian Empire. He died of wounds, old age, and heat stroke in India in 326 B.C. at the age of 30. Alexander gave him a state funeral and named a city after him. According to Arrian: "Enormous in stature and noble in spirit, Boukephalos had been mounted only by Alexander, since the horse had refused to carry any other riders." Secretariat and Bucephalus.
  22. @C Culham I don't know what you're talking about. Please quote the passage that I wrote to which you referred. I'll take "corrective action" if I can understand your criticism. And Carl, I would not deny that everything has attributes (aka, "properties"). Everything that exists has at least one attribute. https://leibniz.stanford.edu/friends/members/view/properties/sc/ Just quote whatever it is that I wrote about horse and rider that troubles you, and I'll respond promptly.
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