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Vern Edwards

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Everything posted by Vern Edwards

  1. Bloomberg Government reported on September 20 that average PALT has increased 72 percent in the last five years. What that doesn't say is that five years ago it was already taking too long. Mission failure.
  2. No. Our bureaucracy and its processes are deadened by it—sickened by overburden and confusion about priorities.
  3. @C Culham@joel hoffmanWhen Joel was doing whatever it was he was doing to enforce limitations on subcontracting back in 1989-1997, we weren't obligating one-half trillion dollars each year on contract actions. We hadn't yet felt the full effect of President Clinton's decimation of the civilian acquisition workforce in his pursuit of a government that works better and costs less. We hadn't suffered 9-11 and felt the impact on acquisition. There was no Department of Homeland Security. We weren't acquiring supplies and services in support of two wars, anti-terrorist operations at home and all over the world, and massive IT expansion. We weren't in a pandemic. We weren't processing the numbers of contract actions that we are today. The FAR was not 1,992 pages long. The DFARS was not 1,300+ pages long. The new 13 CFR 125.6 and FAR 52.219-14 are almost indecipherable. I have read them several times, and I still can't say that I understand it fully. ME! It was written by incompetent semi-literate people. Acquisition today is more complex than it has ever been, and much of today's workforce is inexperienced, poorly-trained, short-handed, and overburdened. I say to hell with "proactive" enforcement on limitations on subcontracting. If someone complains or presents a set of facts suggesting that a contractor is breaching its contract, and if there is time to investigate, then go to it. Otherwise, keep your eyes on the prize, which is getting what our government needs, when it needs it, where it needs it, at a fair and reasonable price. Remember the movie "Patton"? Remember the scene in Sicily where some GI's held up a column while they tried to move two mules off a bridge, resulting in the column getting strafed by enemy aircraft? Remember what Patton did? (July 22, 1943) Well, I say we need more Pattons in acquisition. The mission is to acquire what our country needs, when and where we need it, at a fair and reasonable price, all at the speed of relevance. I'm an ex-paratrooper, and I say, advance toward the sound of the guns, even if you're all alone on a dark drop zone. Mission. Mission. Mission. Everything else is just a distraction. When Congress gives us what we need to do what they want done, better training and more people, we'll pay more attention to the distractions. That's MY personal enforcement standard.
  4. @WifWafBrace yourself. You may soon be hearing from Carl Culham about your duty to proactively enforce the clause. As for me, I wouldn't spend even one minute enforcing the clause unless compelled to do so by some higher power. 🙄
  5. Presumably, Congress and executive branch policymakers and planners. It is management information about what the government buys. See, for example, the following from a 2008 report by the Congressional Budget Office, "Contractors' Support of U.S. Operations in Iraq (August 2008)": Emphasis added. When you buy half-a-trillion dollars a year worth of stuff, planners and budget makers like to know what it is—for example, what your military needs and buys when it goes to war. For other mentions of use of the PSCs, see Congressional Research Service, Defense Acquisitions: How and Where DOD Spends Its Contracting Dollars. https://www.everycrsreport.com/files/20180702_R44010_3dbc3cecbdbf9321a06cd672ead10348033320c8.pdf
  6. Another fact: Searching the Federal Register, I found 144 entries published between 1983 and today that involved rules about limitations on small business subcontracting. Think of the time and effort that went into preparing, staffing, and coordinating 144 Fed Reg entries. Think of all the time spent quibbling about wording, interpretation, and application. Ponder how many breaches of 52.219-14, intentional and unintentional, have gone undetected. Think how much time and effort would have to be spent to prevent, detect, and remedy such breaches. In the movies, communist bureaucrats are often portrayed as tedious apparatchiks. (See, "Ninotchka.") But when it comes to being apparatchiks, no one tops us.
  7. I have nothing to contribute to the substance of this thread, but I do have some facts that might interest you all. In the 1984 Code of Federal Regulations, in the paperback edition published by the Government Printing Office, Title 48, the FAR, Part 19, occupied pages 253 - 283. In the 2020 Code of Federal Regulations, in the paperback edition, same format as in 1984, Title 48, Part 19, occupied pages 428 - 501. Count the pages. Calculate the average growth per year. This happened during the terms of both Democrat and Republican presidents and Congresses. We work in a utopia of rules. I find this very discouraging.
  8. You're beating a dead horse. I'm satisfied with the position I have taken, and I'm not going to "wade through" that stuff in order to deal with pointless quibbling. I expect each agency to set its own policy about warrant authority, and I expect the statement of policy to be clear. If a CO isn't sure about his or her authority they should ask the appointing authority.
  9. Both T&M and L-H contracts use the same payment clause, FAR 52.232-7. So how do you tell the difference between them? The answer is to look at the contract schedule. The Schedule of a T&M contract (see the Uniform Contract Format, Part I, Section B ) should include a contract line item (or subline item, see FAR Subpart 4.10) for labor and a contract line item (or subline item) for materials. The statement of work should describe the work to be done and identify the kinds of labor and the kinds of materials that the contractor is required to use. The contractor can invoice for both labor and materials. The Schedule of a L-H contract should include a contract line item for labor, but not for materials. The payment clause defines ODCs as materials. The statement of work should be clear that the parties agree that the contractor is not required to provide materials. Since there is no line item for materials in an L-H contract, the contractor cannot invoice or voucher for materials. So the answer to your question is No. ODCs, which are materials, cannot be charged to a L-H contract. See ji20874's reference to FAR 16.602. If the contract requires the contractor to provide materials and includes a line item (or subline item) for materials, then it is not a L-H contract.
  10. That's a strange interpretation of FAR 1.603-3(a), which says: If there are any limitations, then the appointment shall state them, but there don't have to be any limitations other than the ones stated in statute and regulation.
  11. Here is how the Design-Build Institute of America describes a Guaranteed Maximum Price contract: See: https://dbia.org/wp-content/uploads/2018/05/DeeperDive-Federal.pdf Keep in mind that GMP are used in construction, where "success" is based mainly on objectively measurable physical and functional characteristics. See the following for pros and cons: https://www.designingbuildings.co.uk/wiki/Guaranteed_maximum_price_for_construction_contracts
  12. @Tzarina of ComplianceI don't know whether PFS is a good idea. I've done some reading, and there are advocates and skeptics. I like to think that I have been an innovator, but I tend to be skeptical (not cynical) about anything that comes out of ivory towers like the Harvard Government Performance Lab, as would be anyone who knows the history of ideas like performance contracting in education, whence came todays Performance-Based Acquisition (formerly, Performance-Based Contracting). As far as I'm concerned, PFS is just education performance contracting with a financing twist. I've been around a long time, Tzarina. If you want an opinion about whether PFS contracting, as usually described, can be done under the FAR, my opinion is that it depends on how you want to do it. My general view is that it probably cannot be done under the FAR without approval of some, perhaps many, FAR deviations and perhaps some legislation. An informed opinion would require you to answer more questions than I want to ask. As for whether "Government pays nothing," well, that's a bold statement in a world with lawyers. I hope that if you undertake a PFS contracting arrangement you tell us about it and let us know how it goes. Best.
  13. I think that's right. It does not mention disputes "relating to the contract." Now the question is whether adding the alternate would be "tailoring." I don't know.
  14. That's bureaucratese ("leverage" "align") except, of course, for "crap." So we'll get the private sector to fund the crap ideas? Is that the idea? If the work is such that performance can be both specified and achieved, then why is the government using cost-reimbursement contracts and not fixed-price contracts? As for my question about profit, I was responding to your argument about investor benefit. If the performance outcome benefits the investor, if the investor gets what it wanted, then why should the government pay the investor a profit for its investment. Shouldn't the beneficial outcome be the investor's reward? Please elaborate. As for your comment about "real Performance Based Contracts," if such can be done, then why go through the rigmarole of a three-party relationship? What is your plan? Will the government contract with the investor or the service provider? Will the service provider be a subcontractor to the investor? Or will the government contract with the service provider and, separately, with the investor? Can the government award a contract under the FAR in which the deliverable will be funding? If funding is not the objective, or one of them, then why not just change your current acquisition strategy? I am asking you some of the questions I'd ask if you came to me seeking approval of a PFS contracting business case.
  15. @Tzarina of ComplianceIf you think you can do that under FAR, then put together a business case and send it up for approval through agency channels. Let us know what happens. But I have a question: If this program, to be carried out in a foreign country, is of such value to the private sector, and if the private sector has funds to invest, why won't the private sector invest without a promise of U.S. taxpayer payback? You say: So, if the program works to the investor's benefit, then the U.S. taxpayer should pay the investor for investing, plus a profit on its investment. Is that right? Please teach us about this.
  16. Joel, it would not cover a dispute "relating to" the contract.
  17. @C CulhamThat's just plain wrong. FAR does not "require" limitations. FAR 1.603-3(a) states: My last Air Force "warrant," which I still possess, stated my limitations as follows: "Unlimited." There are many COs today with "unlimited" warrants. If an appointment includes a dollar amount, it should be clear about to what that limitation is to be applied. If it's not clear, then, Carl, just apply the FAR guiding principles! 🙂
  18. Here is the original question: That question has been answered, with plenty of authoritative references. If NewbieFed is still interested he or she can read up.
  19. It's a way fund government programs when a legislature won't provide up-front funding. From the article to which I provided a link, above: I do not believe that FAR provides for such an "acquisition" strategy. Moreover, this is not just the half-baked performance-based acquisition scheme in FAR. In the cases in question the programs have been something like this: The benchmarks have been things like rate of recidivism. And note the boldface I added to the quote: Without congressional authorization, the Federal government cannot pay interest under a contract.
  20. See FAR 33.213, Obligation to continue performance: So what's the difference between "arising under" and "relating to"? In ABB Enterprise Software, Inc., ASBCA 60314, June 29, 2016, 16-1 BCA ¶ 36425, a software company accused the Navy of breach of contract based on breach of a master software license agreement, which the government had signed. The Navy argued that the board had no jurisdiction, because the license agreement was not mentioned in or incorporated into the government contract. The board decided that violation of the license agreement was a matter "relating to" the contract, and it thus had jurisdiction. In making its decision, the board cited Todd Construction, L.P. v. United States, 656 F.3d 1306, 1311 (Fed. Cir. 2011). A read of those two decisions, ABB and Todd, will give you a better idea of the distinction between "arising under" and "relating to" a contract. For details about the breach accusation, see ABB Enterprise Software, Inc., ASBCA 60314, January 9, 2018, 18-1 BCA 36954. The board granted the contractor summary judgment. The Navy agreed to pay the contractor $600,000 in settlement.
  21. For an in-depth description of pay for success contracting, see this downloadable/printable article: https://ssir.org/up_for_debate/article/the_payoff_of_pay_for_success
  22. See FAR 52.212-4(d), which says: Emphasis added. Compare the last sentence in that paragraph to the alternate to FAR 52.233-1: There is no need to tailor paragraph (d) to add the alternate. As written, paragraph (d) bars a contractor from ceasing performance pending final resolution of an accusation of government breach.
  23. @General.ZhukovUh, the "date" example might not be a good one. I'm old now, but my recollection is that sometimes persistence in the matter of asking for a date paid off. But I was 11B4P, and fortune favors the bold.
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