Vern Edwards

Looks helpful. I checked it against FAR 52.219-14, Limitations on Subcontracting (SEP 2021), and it includes the DOD class deviation. But it does not include the CAAC class deviation. The two deviations are the same in text, but not in paragraph structure.

Excellent advice. It is interesting that FAR Part 14 addresses that matter (somewhat) at 14.208(c). So did FAR Part 15 prior to the 1997 Part 15 Rewrite.

@Fara FasatWell, you're right that it should be the way that you describe, but it's not.

"We may differ." 😊 @ji20874John, you gave a hasty answer to a question and I caught you out. Your answer was factually incorrect. Why can't you just shrug and say, "Oops! I missed FAR 5.102(c) and 19.202-4(c)" and let it go at that? If you had devoted even half as much time to your first answer as you did to your post above, it probably would have been fine. Instead, you lecture me at length about what I learned in the 1970s and what I already pointed out from the FAR and a case that I cited for all to read. I did not say what COs had to do. I did not say that they had to answer every question they receive. I just quoted the FAR and cited the GAO, which you might have done before your first post. In future, think before you post. Take the time to do a little checking. You have a lot to contribute, and your contributions would be better if you would just take the time to research and craft more thoughtful and thorough answers. Everyone would benefit, including you. You're a "professor of practice," right? Well, profess more thoughtfully. Otherwise, why bother?

😏

Try this. Go to the DOD class deviations page. There are 49 active class deviations (if I counted correctly). Look at the ones with attachments. They are the ones that affect or create contract clauses. There are 28 of them. Some of them affect or create more than one clause.

What is it you are trying to do, exactly? Do you want a list of every clause to which a DOD class deviation applies? What is your quest? Be specific.

Teach yourself to do research. Soon enough you'll be adept at finding what you want to know. I don't find https://www.acq.osd.mil/dpap/dars/class_deviations.html to be at all user unfriendly. I'm old, and if I can find what I want there, anybody can.

What you said was: Emphasis added. That's wrong. That's wrong, too, Professor Inman.

Bingo.

See also FAR 19.202-4(c): Emphasis added.

That is not correct. See FAR 5.102(c): Emphasis added. That is what FAR says, but good luck getting an answer to a question over the telephone. Also, the GAO has said that it will sustain a protest that an agency failed to answer questions if the protester can show that the solicitation is inadequate, unclear, or ambiguous. See Pathfinder Consultants, LLC, GAO B-419509, March 15, 2021.

I just learned that an old friend, Jamey Halke, of the Naval Supply Systems Command (NAVSUP), has announced his civilian retirement. I met Jamey in the early 1990s at the Naval Regional Contracting Center (NRCC) in Naples, Italy, where he worked for Captain Kurt Huff and the great Kevin McGinn. Jamey, Kevin, Angela Yates, and Sherry Taylor were among the very best of the old breed at getting the job done for our country and keeping the Navy at sea with no b.s. Mission! Mission! Mission! The stories they could tell. Can you have fun in the course of a government contracting career? Here is Jamey's description of one facet of his: On a personal note, on my first trip to Napoli, Jamey took me on his legendary walking tour of the old city center, which he knew intimately. I saw and learned about things that most people who visit Napoli never hear of. On another day I met him before sunrise at the Pantheon in Rome's Piazza della Rotonda, and he walked me through the heart of that old city, even arranging a visit to the Vatican. Jamey is one of the finest 1102s I have known, and he will be greatly missed. Congratulations, Jamey! Well done, thou good and faithful servant. And here's to Istanbul!

@formerfedFor all its yapping about innovation, our government has rarely been a source of real administrative or business innovation. Instead, government policymakers seize upon ideas from academia and business literature, such as reengineering, performance contracting, and agile development. Remember the book of the early 1990s, Reengineering the Corporation, which the Clinton administration turned into "Reinventing Government," which it then used to decimate the procurement workforce? Remember TQM? Remember the teams movement? The problem is that the government latches on to such ideas when they are fads, before they have been thought through, and before critiques and adjustments have been made. Political appointees and career "managers" seize on those fads, like performance-based contracting, bloviate in interviews and at conferences, and push them as the keys to the future. They don't often focus on the hard work of thinking things through. Instead, they move out and ballyhoo on the basis of superficial knowledge and uncritical thinking. Eager beavers seize on the fads, prepare PowerPoint presentations, and then strive to become the local goto "expert." God save us from ambitious overnight "experts". Relational contracting, although it has attracted some attention, has never achieved ballyhoo status, because most government contracting people have never read a serious treatise on contracting. They can't get through articles like "The Many Futures of Contracts" or "On Goods and Services"; never heard of Ian R. Macneil, Stewart Macaulay, or Peter Hill; don't understand what relational contracting has to do with anything they do; haven't studied the literature; and have not worked in contracts in the purely private sector. I don't think relational contracting is a cure-all, but I do think it could produce better results from long-term complex service contracts if the contracting workforce had what it takes to pull it off. Relational contracting requires deep thinking and savvy implementation. It is not for novices or apprentices. It will never be adopted by the government on a widespread basis, but savvy individuals can pull it off under the right circumstances, especially those working in the world of Other Transactions, since they have some freedom from standard government contracting rules.

@formerfedWell, that might be going too far. As you know, government contracts include legal requirements, such as the Service Contract Act, small business subcontracting, limitations on subcontracting, etc., that cannot be "filed away." In government service contracting, the main advantage of a relational approach is the conscious recognition of the nature of services, the conditions and circumstances under which long-term and complex services are performed, and the realization that ex ante (up-front) full specification of requirements is not possible. Thus, PBSA, as described in FAR, is not realistic. The parties will, to some extent, have to make it up as they go along, adjusting to unforeseen conditions and circumstances as necessary and appropriate. The government's typical "command-style" ("the contractor shall") and formal approach to contract management is poorly adapted to such contracts. It is too formal and too often creates needless conflict. A relational, businesslike approach, undertaken by knowledgeable, sophisticated, and reasonable persons, is much more likely to be fully satisfying to all. But it takes know-how and self-confidence. Properly understood, if the U.S. Government were to adopt (I should say, attempt) a relational approach to contracting, it would not be an innovation. It would be a recognition of and adaptation to reality. P.S. Since you mentioned source selection, I will add that award without discussions would be entirely inappropriate when aiming to take a relational approach to contracting. Relationships begin with talk.

@formerfedMy answer to your first question would be much too long for this forum. But I have written a lot of stuff about it, some of it has been made available at Wifcon, and you can look it up. The second question would also require a very long answer, but I will address it in a limited way in what follows. My answer to your third question is addressed below. The short answer to that questions is that asking offerors for their demonstrated experience with relational contracting would be ridiculous. The phrase "relational contract" pertains to a kind of contractual relationship. Look it up in your Black's Law Dictionary. There is no entry for "relational contract," but there is one for "relational contract theory," which says: "See essential contract theory." Look that up. The entry says: (I have mentioned Macneil's article several times in this forum, and have encouraged people to read it. I wonder how many have done so. In fact, I have addressed relational contracting many times here. As you know, I almost always cite references. So you've had plenty of chances to read up.) The term "relational contract" does not encompass any specific or special contract terms. If you ask offerors to tell you about their experience with relational contracts, what kind of contracts would you expect them to tell you about? Ones labeled "relational contract" or that say they are "relational contracts"? Good luck with that. A relational contract is not a distinct species of contract, like Asian elephant versus African elephant. It is not something specified. It is not a specific set of contract clauses. Rather, it is a mindset and an approach. It is about the way the parties relate to each other and do things in cooperation in a long-term business relationship in which performance must adapt to changing requirements, conditions, and situations. A relational contract might include some specific facilitative contract terms, like what I have called "joint management to budget," "ad hoc specification of requirements," and a clause requiring mandatory alternative dispute resolution. In government procurement, relational contracting would mainly require giving up the command style—"the contractor shall," "the contracting officer hereby directs"—and adopting a more commercial and informal approach to long-term business relations. It is about adaptive, ad hoc specification of requirements instead of full specification at the outset of performance. It is about the two parties making things up as they go along in response to emergent conditions and situations. Making experience with specifically relational contracts an evaluation factor and requiring offerors to state their experience with relational contracts is typical government amateurishness. It reflects the "innovation success story" mindset. I can think of no shorter route to failure than for an agency to undertake relational contracting without a deep understanding of its theoretical roots and of the reasons why and how it is different from standard government contracting practice. An agency that assigns an unsophisticated CO with CORs who have not been fully briefed and prepped to contract relationally is courting failure. Sophisticated businesspersons operating in the world of long term business relations engage in relational contracting naturally. Relational contract theory sprung not from innovation (a word indicative of government amateurism), but from the realization that contract legal theory did not reflect how business people really do business. It sought to adapt contract legal theory to the real world. Ian R. Macneil opened his famous essay by quoting the definition of contract from the Restatement, Second: He then said: I have long advocated a relational contracting approach to the procurement of long-term complex services. I first wrote about it in a 1999 guest article for The Nash & Cibinic Report, "Long Term Service Contracting in the Year 2000 and Beyond," in which I wrote: I have advocated relational contracting because I think it is more "real world" than what we try to do now. But any CO who undertakes "relational contracting" had better be steeped in the origin writings about it and in the writings that have been published since then. They had better understand what it is they are trying to do and why, the pros and cons, and the necessary adaptations. There must be none of that hasty and superficial "innovation" and "success story" quick fix b.s. that contracting policy makers and "laboratories" love to promote in a half-baked way. Otherwise, instead of a success, they'll have another embarrassing failure on their hands or another fruitless "reinvention." I don't know of any cookbooks or how-to's, and I don't intend to write one. In short, don't try relational contracting if you need someone to tell you how to do it.

😏 But did you think it was? I wish I had a nickel for every civil service management course I attended in which we did a brainstorming exercise and I thought, "This is kinda dumb." Here's a quote from the Harvard Business Review, no less: I'll bet they're still teaching traditional brainstorming in civil service management classes. Sometimes I wonder how much that I've been told is true, and believe is true, is really true. I worry about that.

@Don MansfieldMaybe brainstorming doesn't work all that well: Business Strategy Review, 2000, Volume 11 Issue 4, pp 21-28. See also, Lehrer, "Groupthink: The Brainstorming Myth," The New Yorker, January 22, 2012:

Is there? Gosh! I didn't know. I usually brainstorm alone, and criticize myself constantly.

Pricing data does not determine prices paid. I doubt that it has much delta effect on pricing outcomes at all. Business relationships determine prices paid.

Although contracts based on relational principles and terms have been in widespread use in some industries, "relational contract" is an academic term and may not be widely understood. Offerors with contracts based on relational principles and terms may not know what you're talking about. This is a problem in government contracting. People are introduced to an idea and want to talk about it rather than just do it. So we have to call a work statement a "performance work statement" instead of just stating the contractor's obligations in terms of outcomes instead of processes and procedures without applying a label so that idiots can recognize it. Then people start asking what the difference is between a performance work statement and a statement of work. Just do it. Don't label it. If I saw an RFP that listed experience with relational contracts as an evaluation factor and asked offerors to describe their experience with relational contracts I would consider the CO a fool.

I don't know the answers to your questions. I think neither the CO nor the contractor knew what they were doing. Since the government's policymakers say they want to bring new companies into the fold, they should expect that those companies won't know. That's why they should make sure that COs know.

Nonsense. The fact that the DoJ did not contest the contractor's assertion does not mean that it assented to that assertion. It didn't think it needed to contest it, because, as it pointed out in court, the contractor had assented to commercial item terms.

Here is what happened: The government awarded an IDIQ contract for "commercial item" instructor services to teach up to a certain number of courses that it also taught using in-house instructors. The government's assertion that the services were commercial was almost certainly valid, but subject to argument. The contract included the standard FAR 52.212-4 and -5 contract clauses. No competitor objected to the commercial item determination. Upon contract award the government issued a fully funded task order for the maximum number of courses, to be scheduled in the future as needed. Why the government did that has not been explained. No one has referred to any contract clause that provided for such a procedure. But the government did not schedule all of the ordered classes, teaching some using in-house instructors instead. Why the government did that has not been explained. No one has referred to any contract clause that provided for such a procedure. At the end of the contract the government paid for the classes the contractor actually taught and deobligated the funds for the ordered-but-never-scheduled classes. Why the government did that has not been explained. No one has referred to any contract clause that provided for such a procedure. The contractor objected to the deobligation and filed a claim demanding payment for all of the classes that had been ordered, even though not scheduled. The government denied the claim. Upon appeal to the COFC, the contractor argued that the government should pay for the services it has ordered, even though it had not used them. The government argued that it had "constructively" terminated the contract for convenience and did not have to pay for the classes that had been ordered but not scheduled, even thought it had ordered them. A finding that a contract has been constructively terminated must be grounded in a contract T for C clause. The COFC decided that since the contract had included the commercial item T for C clause the government had, indeed, constructively terminated the contract for convenience and did not have to pay for the classes it did not schedule. On appeal to the Federal Circuit, the contractor argued that the service was not commercial and that the commercial T for C provision had been improperly included in the contract and did not apply, so there could not be a constructive termination for convenience. Instead of defending the government's assertion of commerciality, which was almost certainly valid, the DoJ stupidly argued that since the commercial T for C provision was in the contract and the contractor had assented to it, the clause did apply. The Federal Circuit decided that the commercial T for C clause did not apply to contracts for services, because services are not "items" and thus could not be "commercial items." They decided that constructive termination did not occur, and remanded the case to the COFC. Government incompetence is the plague of our time. Think about what that means for all of us as we expect government to procure more and more things needed to solve more and more problems and the rules get more and more complicated.

Yeah, I know what you mean. A lot of that is due to the backgrounds of the authors. That kind of sophisticated math is not necessary in most source selections. It's just mental exercise for the authors, who are theorists. There are books that explain simple additive weighting (SAW) in much simpler terms, using relatively simple arithmetic. I'll post title here later. It depends almost entirely on the requirement. There are obvious criteria: education, training, experience, and reputation (in some fields, like the sciences, where publications might be important). One thing I'd look for is how long the person has worked for the prospective contractor. New hires might not fit in as well as hoped and may not function as well as an old-timer who knows the people, the culture, and the ropes.