Vern Edwards

Look, it is not true that you cannot have a commercial items contract for services. It was never true that you cannot have a commercial items contract for services. The courts screwed up their decisions because they were ignorant of the statute and of the regulations and because the lawyers who argued the case were not experts and argued poorly. Either that, or they, the judges and lawyers, couldn't write worth a darn—as is true of so many who post here—and thus miscommunicated their meaning. This will get sorted out. I haven't seen the "alert" from the law firm and I don't know what law firm issued it, but if they think there is a chance that a Federal Circuit holding to the effect that there cannot be a commercial item contract for services will stand further legal tests, they are wrong. Then again, it's possible that Fara has misunderstood the alert. As for the new definitions of commercial product and commercial service, they have nothing to do with it, other than to say that if they had been in place before the JKB case went to court there may have been less chance of confusion.

How about: This option may be exercised 10 times, or The Government (or CO) may exercise this option 10 times. You don't "order' an option. And if you say that something "may" be done 10 times, it doesn't mean 11 times or more, so you don't need "maximum".

So each survey is a job. The options are to buy more jobs within the period of performance. I presume that each ELIN is a particular parcel of acres to be surveyed. While I don't like the way the CLINs are written, I do not think the concept of having an option to buy more of the same kinds of jobs within the period of performance violates any rule that I know about. Your options are a kind of option for additional quantities. See e.g., FAR 52.217-6. Instead of buying more supplies, you would exercise the option to buy more services. I think it's okay.

My article about this case is on the Articles page at Wifcon.

I don't want to say no, but... An option is usually a contract line item, and according to FAR 4.1003, each line item must have: So my tentative answer is No. Why don't you show how your option CLINs and ELINs read in the contract.

The hardest thing about innovating is breaching the walls of ignorance and orthodoxy.

GSA: JUNETEENTH FEDERAL HOLIDAY / GUIDANCE FOR EMPLOYERS WITH SCA OR DBRA CONTRACTS https://www.gsanational.com/juneteenth-federal-holiday-guidance-for-employers-with-sca-or-dbra-contracts/ From a law firm: Juneteenth is the 11th Annual Federal Holiday: Things for the Government Contractor to Think About https://blindauerlaw.com/juneteenth-is-the-11th-annual-federal-holiday-things-for-the-government-contractor-to-think-about/

@RetreadfedThanks, Retread.

Here's one of the holdings of the Federal Circuit, as reported by Westlaw: Emphasis added. But that will not stand. It is clearly in error.

Does an employer have to give employees the day off on holidays?

@Retreadfed On what paragraph(s) of the clause might the contractor rely for a price adjustment? I must have missed the word "holiday".

@1102_InquiringMindJust a heads up: budgeting people and contracting people often use the term "incremental funding" to refer to different but related procedures.

I agree with that, because innovation in general with respect to ongoing practices and procedures cannot come from theory alone. It must come from deep knowledge and experience. But where do specific innovations come from? I think they spring from annoyance and dissatisfaction—the desire to solve a specific problem—and hard thinking about the problem and possible solutions. It usually or often begins with a complaint: Why do we have to read these $@&*%! awful boring technical proposals? How can we get away from that? It takes so much time. Well, the tech people want to be assured that a prospective contractor knows what the job is and can do it. Well, what if we evaluated oral presentations, instead? Would it be legal to do so? What are the pros? What are the cons? What would the procedure be? What would be the advantage? What would be the disadvantage? What could go wrong? What would be the objections? From colleagues? From higher-ups? And so we make notes and draft schemes and procedures, and we talk to people and describe the innovation and make a case for it, and we argue with and maneuver against opponents (there will always be opponents), and, hopefully, we get permission, and then we try to pull it off, and we try not to screw up. And we learn and adjust, because it rarely works perfectly the first time we do it. And if we succeed we say, "Piece of cake," even if it wasn't. And then we patiently answer questions from the clueless and the unimaginative, the same questions, over and over again. "Wouldn't oral presentations constitute discussions?" Sigh. Now can we talk about asking for responses to specific questions instead of telling offerors to prepare "narrative" technical proposals?

What law or regulation requires TransDigm to substantiate its assertion that a product or service is commercial? Who job is it to determine commerciality and apply appropriate policies? If it's so reliable, why do we ever need certified cost or pricing data? If a CO feels that they cannot determine the reasonableness of a price, what should they do? Did TransDigm put a gun to the CO's head or did DOD shoot itself in the foot? What if, during negotiations and without a scrap of cost or pricing data, the CO had simply asked, pen hovering over paper and making eye contact with the company representative: "What does it cost TransDigm to make that part Mr or Ms Jones?" And what if the answer, whatever it was, including "I don't know," turned out to be false?

According to the DODIG: DODIG-2022-043, Dec. 13,2021. https://media.defense.gov/2021/Dec/27/2002914678/-1/-1/1/DODIG-2022-043 508.PDF So TransDigm had one opinion and DLA had another. Then what? DLA bought the parts. Did the CO(s) think the prices were not fair and reasonable? If so, did they comply with FAR 15.405(d)? If so, what happened?

In a new 58-page decision concerning a claim arising under a dredging contract awarded by the Corps of Engineers, Court of Federal Claims Judge Holte opens with a poem that he wrote: See Marine Industrial Construction v. U.S., No. 15-1189. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2015cv1189-122-0 In a footnote he refers to a 1998 decision that Judge Loren Smith wrote as a poem. See Neal & Company v. U.S., 41 Fed. Cl. 584. https://cite.case.law/pdf/563758/Neal & Co. v. United States, 41 Fed. Cl. 584 (1998).pdf

Protest denied! Good job by that contracting officer!

@1102_InquiringMindWarning: This is a very confusing topic. FAR coverage is inadequate and FAR 32.703-1 is a little misleading. Take a look at these for a start. GAO, Budget Issues: Incremental Funding of Capital Asset Acquisitions (2001), https://www.gao.gov/assets/gao-01-432r.pdf Congressional Research Service, Defense Procurement: Full Funding Policy—Background, Issues, and Options for Congress (2007), https://www.everycrsreport.com/files/20070615_RL31404_399717ad5f8fab73080113e940e7c8b8bcf4d52c.pdf Congressional Research Service, Navy Ship Procurement: Alternative Funding Approaches - Background and Options for Congress (2007), https://www.everycrsreport.com/files/20070615_RL32776_be6219cb88e53694e139151d5bc6802888ded554.pdf

@1102_InquiringMindWould you like some reading materials on incremental funding? The FAR coverage is both sparse and somewhat confusing.

In the latest report on open FAR cases, dated February 18, 2022, the status of FAR Case 2016-002, "Applicability of Small Business Regulations Outside the United States," was stated to be as follows: Perhaps one of the issues is the ambiguity of FAR 19.000(b).

You cannot "bulk obligate" appropriated funds against an IDIQ contract in advance of requirements. That's because there is no legal obligation (other than the obligation to buy a minimum) until you issue an order. Citing funds on a contract without a legal obligation does not constitute an obligation of funds. It constitutes "overrecording" of an obligation. So if people are doing what you say they are doing, thinking that they can get around proper fiscal procedures, they are misinformed. See GAO Red Book, 3d ed., Vol. II, Ch. 7, Subchapter B, Section 1.

From the Federal Trade Commission: Monopolization Defined. https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/single-firm-conduct/monopolization-defined Not all monopolization is illegal. https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws

It's a very good interview. But read Flying Blind.

I haven't seen the legislation, but you might not be entitled to an equitable adjustment. Look up "sovereign acts doctrine." https://publiccontractinginstitute.com/the-sovereign-acts-doctrine/

That's true, John. It is reasonable to expect that ambiguous policies lead to multiple interpretations, inconsistent applications, and litigation. Professionals should NOT be "okay" with that, and they should not be silent about it. Ivory tower? Really, Mr. Inman? That's an insult. A serious insult. Well, kiss off. My writings have been widely read and cited and many of my practical ideas and teachings have been adopted. Shall we compare publications, mentions, and citations, "professor"? Yes.