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Vern Edwards

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Everything posted by Vern Edwards

  1. @VelThat is an interesting question. How do you think the answer would affect the issue analysis, if at all?
  2. @Don MansfieldAfter you read La Gloria, read Tesoro Hawaii Corp. v. U.S., 405 F.3d 1339 (Fed. Cir. 2005).
  3. @ji20874 That's a good idea! The PIL has done and is doing good things. But written explanatory material is of enormous value, especially when widely disseminated. The power of ideation to drive innovation when combined with clear and targeted explanation is virtually limitless. One of the greatest examples of the 20th Century. Four pages. https://psychology.okstate.edu/faculty/jgrice/psyc3214/Stevens_FourScales_1946.pdf Every one of my source selection students gets a copy.
  4. BTW, I didn't say I don't like the PIL Workbook. I said I'm not satisfied with it. Is it bad to want more?
  5. "Why do you want to put that clause in our contract?" "Because the President says that I must." "But I don't want to agree to that." "Well, then, we will not place any more orders and will not renew your contract" "But you're a big part of my business. If you stop ordering from me I will take a big hit. I might not survive." "I feel for you, but there is no option. Take it or leave it." And you're only doing this because the President told you to." "Yep." "Okay. I guess I have no choice." "Correct. Sign here." The word I'm thinking about is duress. But I have no idea how it would turn out in court. I have already accepted the clause in my contracts.
  6. I didn't know whether to laugh or cry when I read that comment. PIL did not provide "help" practitioners in doing comparative evaluations without assigning adjectival ratings. They just told them about the possibility of doing it in certain kinds of acquisitions. They did not describe the process or the pros and cons. Aside from one GAO protest decision cited on another page, they did not refer practitioners to a source of practical information, like Hammond, Keeney, and Raiffa, Smart Choices: A Practical Guide to Making Better Decisions, Harvard Business Review Press (1999), Chapter 5, or Goodwin and Wright, Decision Analysis for Management Judgment, 5th ed., Wiley (2014), p. 40, "Direct rating." Neither book teaches the use of adjectival ratings. In 1993, Ralph Nash and John Cibinic wrote this, in Competitive Negotiation: The Source Selection Process, p. 350, The George Washington University. See Development Associates, Inc., B-205380, July 12, 1982: (Use of adjectival ratings was first mandated by the Air Force in the early 1980s because there were too many foul-ups using numerical scores, and because they thought it would foster more subjectivity.) According to Westlaw I have written something like 50 published articles in which I discussed scoring or rating. Fifteen years ago, In 2006, I wrote an article entitled, Scoring or Rating in Source Selection: A Continuing Source of Confusion, which Bob will post at Wifcon as soon as the publisher grants permission. In that article I wrote this: I wrote this in 2009: In a lengthy analysis of a protest against agency proposal scoring, Prof. Nash wrote this in 2010: PIL did not invent the wheel. There is nothing new about evaluation by direct comparison without using ratings or scores. If you have never heard, then maybe you should review your reading program.
  7. The PIL Workbook discussion of comparative evaluation is not proof of anything. That's not to say that it's wrong about anything, but that it is short on explanation. That's my main complaint about it. It is incomplete. Look at page 22, which presents "Innovation Technique 5, Comparative Evaluation." WHY is comparative evaluation "Not recommended for use under FAR Part 15"? That's a natural question, which the Workbook should answer. It should explain. In what way does comparative evaluation provide "ultimate subjectivity/flexibility"? Explain. Is subjectivity better than objectivity? More fundamentally, what the heck is comparative evaluation and how does it work? The workbook says it's "comparing offers to each other." Don't we always compare offers to each other when making a source selection decision? Isn't that the very essence of competition? What I think they mean is compare offerors to each other, not against a standard or rating scale. They could have explained that in a few sentences. Maybe they could have used some of the space they gave to the two big and not especially useful text boxes that take up three fourths of the page. It refers readers to the "GAO Guide," but when you get there the only reference to comparative evaluation is to a single protest decision about a task order competition. That 14-page decision does describe direct comparative evaluation in two short paragraphs on page 3. But some explanation in the PIL Workbook about what to look for in that decision and what to see would have helped. (The protest did not challenge evaluation by direct comparison.) Ideation without explanation is practically useless, unless the people you are communicating with already know and understand the underlying concepts and principles. The Procurement Innovation Lab is a good thing, and my objective in writing this is not to trash them. But they need to do better for a workforce whose leadership has failed to provide them with essential professional education and training and essential reference tools of their trade. The PIL Workbook is interesting and pretty, but it's not enough.
  8. No, I don't, because they were not published in compliance with 41 USC 1707. However, see Tesoro Hawaii Corp. v. U.S., 405 F.3d 1339 (Fed. Cir. 2005).
  9. @ji20874If you are not aware of "anything else" doing anything helpful, maybe you're not looking in the right places. I will see if I can arrange for Bob to be able to post some helpful things.
  10. @ji20874 I understand your support for the PIL, but the PIL Workbook could be a lot better. While they don't say that you cannot evaluate by direct comparison under Part 15, you have seen that unsophisticated readers can only wonder about that given the way they put things. If you're going to lead, lead by clear direction.
  11. The phrase "not recommended" does not appear on PILS Workbook page 13. However, that page seems to suggest that FAR Part 15 requires the use of ratings and precludes the use of evaluation by direct comparison. PILS Workbook page 22 says that the "comparative evaluation" technique is: The Workbook doesn't provide any rationale for saying that evaluation by direct comparison without ratings is not recommended under FAR part 15. So no critical thinker would concur with that "not recommended." FAR Part 15 does not require the use of ratings or scores. The PILS workbook is wrong to suggest that it does. Ratings have never been required by procurement statute or by any procurement regulation in the Code of Federal Regulations. There are several good reasons to discard ratings. One reason is to eliminate protests about the assignment of ratings. The purpose of ratings is to simplify and facilitate the aggregation of evaluation findings. (The best way to do that is with numerical ratings, not adjectives or colors.) See "Scoring or Rating in Source Selection: A Continuing Source of Confusion," The Nash & Cibinic Report, February 2006. See also "Source Selection Decisions: Ratings Should Not Be Used," The Nash & Cibinic Report, April 2018. If you don't use too many evaluation factors, there is no reason to assign ratings.
  12. And the contractor should demand an increase in estimated cost, as well as fee, so they don't try to tag them with a cost overrun.
  13. The oversight contractor was hired to oversee the performance of some construction contracts. The construction contracts were affected by some excusable delays. The oversight contractor was not affected by the delays. A contracting officer worth their salt who was going to hire a contractor to oversee construction contracts would have included an option to extend the oversight in the case of just such an event, which is not at all uncommon in construction work. But to apply the excusable delay clause to the oversight contractor in an attempt to force them to continue to perform without additional fee is a howler. Ignorance and incompetence reign supreme in that office. But if the contractor goes along without filing a claim for an adjustment to the estimated cost and fee of its contract, then it's just as dumb as the CO. If I were the contractor and they pulled that nonsense on me I'd go right to a claim. Forget a request for equitable adjustment. The claim would be no more than two pages long. Sigh.
  14. @Tzarina of ComplianceIf the contract is cost-reimbursement, then it should include the clause at FAR 52.249-14, Excusable Delays. That clause does not provide for an "equitable adjustment" in time or money. What you have described is the thinking and plan of an office that does not know what it is doing. You are likely correct in your thinking that the extension is a sole source procurement. So what can you do, besides write a memo?
  15. What constitutes completion depends on the terms of the contract. What does the contract say? Did the SOW say that the contractor had to provide construction oversight until the construction was complete? Did it tie the period of performance to the status of the construction contracts? Or was the period of performance stated in terms of days or dates? The oversight contractor did not experience delays, the construction contractors did, unless the oversight contract clearly tied the oversight contractor's obligations to the status of the construction contracts. If the oversight contract is not clear in that regard, then the answer is negotiable. If the issue cannot be settled by negotiation, then it may have to be settled by litigation.
  16. I don't know what govt2310 meant, but it doesn't matter. FAR Part 15 does not prohibit comparative evaluation. Here is one explanation of "comparative": In general, an agency can evaluate offerors and their offers ("proposals") by comparison to a standard or by direct comparison to each other. For the sake of illustration, suppose that an evaluation factor is "distance of the contractor's office from the work site," the lesser the distance the greater the value. Suppose further that you decide to rate offerors on a numerical scale of 1 to 100 points, 100 being best. One way to rate offerors and offers would be to establish a distance/points rating standard (scale), compare each offeror and offer to the standard, assign points accordingly, and then rank them by comparing the ratings and underlying facts. A different way would be to compare the offerors directly to each other, giving the closest offeror 100 points, and then giving every other offeror fewer points on a proportional basis. So, to use a simple example, assume that you receive offers from five offers, the closet being five miles away and that the farthest being 36 miles away. You could assign the five-mile offeror 100 points and the 36-mile offeror 1 point and score those in-between based on the linear function. Once upon a time some agencies—most notably the Air Force—prohibited evaluation by direct comparison, because they feared that the best offeror and offer might not be particularly good in relation to the agency's requirement. When you're conducting a source selection based on proposed weapon system design concepts, one design concept might be better than all the others, but not particularly good in terms of desired weapon system performance. (Keep in mind that the process we call "source selection" was developed for use in the acquisition of aeronautical, nautical, and space systems.) So the Air Force developed the concept of evaluation standards and required the evaluation of each offeror by comparison to the standards, not to each other. See Air Force Regulation 70-15, Source Selection Policies and Procedures (1976), para. 3-4b: That Air Force policy was adopted by some other agencies, but prohibitions against evaluation by direct comparison were eventually abandoned by most as the use of source selection expanded to a wider range of acquisition types after the enactment of CICA in 1984. The prohibition has never appeared in statute. It did not appear in the Armed Services Procurement Regulation, the Defense Acquisition Regulation, or the Federal Procurement Regulation, and it has never appeared in the FAR. Evaluation of offerors and offers by direct comparison is a perfectly legal and reasonable method to use for many source selections, especially those for commercial products and services in which evaluation should be based on what is available in the market. Evaluation by comparison to standards is much more challenging, because the development of evaluation standards is challenging. In any case, every source selection decision ultimately requires the direct comparison of offerors and their offers, whether they were evaluated by direct comparison or comparison to standards. Whatever govt2310 meant by that, it is wrong.
  17. @govt2310That comment was one comment too many. Your ignorance of the rules proves you to be unqualified for the acquisition under discussion. You are in over your head, and I am embarrassed for you. Do yourself a favor and leave the thread. It's dead anyway.
  18. If it's to be a no cost contract, what consideration will the government offer the celebrity to make it binding?
  19. I never heard of that procedure, old or new. Why would you do that? It makes no sense. You issue the purchase order, which is the Government's offer to buy. You ask the contractor to sign it in accordance with FAR 13.302-3(a) in order to indicate its acceptance of the offer. Then you have a contract. Then the contractor performs.
  20. @GABETwo questions: Do you want to know whether you have to include commercial item contract clauses if you issue a purchase order? What's up with the business about the task order? Why did you mention that?
  21. Why? Note that in the case the GAO cited the Small Business Act, 15 USC 637(b)(7)(A), which says: and the SBA's implementing regulation, 13 CFR 125.5(a)(2)(ii), which says: Note that the GAO did not cite FAR 19.602-1, which makes no mention of that rule. The FAR coverage is inadequate. A CO must be aware of the SBA's rule. See Canfield, "Traditional Responsibility Factor Doctrine: From Interpretive Gloss To Regulatory Enshrinement," Procurement Lawyer, Summer 2021: FAR 19.602-1 makes it seem like COs must refer a small business for a COC only when they have determined the apparently successful offeror to be nonresponsible. But that is not true. Also see FAR 15.101-2: The problem is that the same is true of any responsibility-type evaluation factor.
  22. @T SmithLooking back at your opening post: They want you to present a projected monthly schedule over the life of the contract of what the special termination costs identified in the clause would be ("termination liability") if the contract were terminated at each point in time. Termination liability is a very old concept and technique. Are you familiar with the concept of termination liability? If not, I'll try to provide you with references. See this: https://www.lawinsider.com/dictionary/termination-liability
  23. @Tara T.I encourage you to invest time in learning how to research issues and questions and find resolutions and answers for yourself. Wifcon's "For Beginners Only" forum may be helpful if you have a simple, straightforward "flash" question and a highly specific context. Otherwise, the resolution of many contracting issues is highly contingent, and there are no simple "boom" answers that will resolve them. When issues are highly contingent they tend to prompt free-for-all responses that may be more confusing than clarifying, and beginners usually are in no position to sort them out. Consider the following concerning an approach to answering questions for yourself: An issue is a matter under consideration that is the subject of actual or potential disagreement, for example: Whether competition is required Whether a set-aside is required Whether a cost is allowable Whether a cure notice is required Whether the Davis-Bacon Act applies Resolving an issue that is addressed in the FAR: State the issue and the question that must be answered. Research FAR and find the applicable rule(s), if any. Read, analyze, and interpret the rule(s); they will tell you what facts you need. Identify the pertinent facts of the problem (the "case", the situation). Develop a syllogistic (deductive) argument. A syllogistic (deductive) argument is a set of three propositions structured in a format called a syllogism: Major premise: The Major Premise is the applicable rule(s) in FAR. If X is the case, then do Y. Minor premise: The Minor Premise is the statement of the pertinent fact(s) of the case. X is the case. Conclusion: The Conclusion results (follows) from applying the rule(s) to the fact(s). Therefore, do Y. Write your argument down on paper in plain English. Test your argument by discussing it with people you know whose knowledge you respect. Teach yourself to do those things and you won't want to come to "For Beginners Only" unless you're just looking for a social media diversion. I'm not saying that you cannot learn "things" at Wifcon's "For Beginners Only" forum. You can. I'm saying that I hope you understand the forum's free-for-all limitations, which are significant.
  24. The problem is that a no-cost contract is still a contract—an agreement that the courts will enforce. See ThinkGlobal, Inc. v. Dept. of Commerce, CBCA 4410, 16-1 BCA P 36489, Sept. 9, 2016: See the commentary by Prof. Ralph C. Nash, Jr., in "No Cost Contracts: Is The Government Liable For Breach Damages," The Nash & Cibinic Report, Nov. 2016. Why bother with a contract? Why not just write an informal agreement that the actor will perform the service at no cost to the government. Such an agreement is necessary in order to get around 31 USC § 1342. If all you know is contracts, every agreement looks like a contract. I see no reason for a contracting office to be involved in this matter.
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