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Vern Edwards

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Everything posted by Vern Edwards

  1. @here_2_helpI have attached more info about the Army's program. Army Software Factory Prototypes.pdf
  2. @here_2_help It's not unusual. The program is as follows: DOD is scared to death of falling behind China in the development of hi-tech weaponry. This program is apparently designed to improve the Army's capability in that regard. The award of five more or less identical contracts is an example of competitive prototyping. That approach is not at all unusual at the outset of a development program and has long been in use. The Army apparently wants to develop a software "factory," and it has given five firms money to develop competitive prototypes. In the long run they will probably choose one or more firm/factory for long-term funding and operation based on program performance. The Army used broad agency announcements and OTAs to bypass the b***s*** in FAR Part 6, Part 15, and Subpart 16.5.
  3. After a little research, I think they are other transaction (OTA) awards that resulted from broad agency announcements. They appear to be IDIQ-type contracts that are not subject to FAR Subpart 16.5 and other IDIQ rules.
  4. The U.S.C. is a codification of statutes enacted by Congress. The FAR System is Title 48 of the Code of Federal Regulations (CFR), which is a a codification of regulations promulgated by the Executive Branch. The FAR is promulgated in accordance with 41 U.S.C. § 1303. On a day-to-day basis, COs comply with the FAR. In the event of a conflict, the U.S.C. takes precedence, because it is statutory, and statutes are higher law than regulations. The national defense authorization acts are laws, parts of which end up codified in the U.S.C. You really should do some internet research if you have more questions. The topic is too complicated for short answers in this forum. Start with finding out what kind of publication the United States Code is and what kind of publication the Code of Federal Regulations is. Or you can buy the Cibinic, Nash, and Yukins book and read about it.
  5. Actually, the authors of Formation (4th ed., not 5th; the 5th hasn't been published yet) are Cibinic, Nash, and Christopher Yukins. Nagle is a co-author of Administration of Government Contracts (5th ed.).
  6. @FrankJonI disagree with you. GSAM 552.212-4 (FEB 2018) replaces two paragraphs of FAR 52.212-4 and adds one paragraph, but does not present a new clause in its entirety. See the preface at GSAM 552.212-4: So you need FAR 52.212-4 in the contract, as well as GSAM 552.212-4. The problem is with the instructions in GSAM 552.212-4, which are inconsistent with FAR. Those instructions explain what GSAM 552.212-4 does, and tells COs to replace and add the designated paragraphs, but the GSAM presents the changes in the form of a separate clause, when what it should do is tell the CO to tailor 52.212-4 in accordance with FAR 12.302 and follow the instructions in FAR 52.252-6. See also GSAM 512.301(e). Why people add clauses to orders is a mystery to me, but it seems to be common practice. Maybe GSA FSS contracts do not include 52.212-4.
  7. @C CulhamWhere I worked in the 1970s and early 1980s, there was a hierarchy. Contract specialists (CS) were GS-12s. Contracting officers (CO) were GS-13s. They were assigned to system program offices (SPO). Each SPO had its own contracting office, headed by a "director," usually a lieutenant colonel or GS-14 or GS-15. The contracting director worked for the program manager (PM), a colonel or brigadier general. The Chief of the Contracting Office was a colonel who headed a "staff," which included several offices, such as operations, pricing, statement of work review, contract writing office, and a contract review committee ("the Committee".) The Committee was headed by a GS-15 and staffed by GS-14s. Everybody worked for a lieutenant-general (three stars). There was also a Staff Judge Advocate (JA), a colonel, who had a staff of military and civilian attorneys. Every action (award or modification) above a certain dollar value had to undergo two reviews: JA and the Committee. If either review found fault with a file they could halt the action until the fault was corrected simply by withholding approval. A finding could be appealed to the Chief of the Contracting Office or the Staff Judge Advocate, but such appeals were not welcomed and were rarely successful. It was rare that a file would get past the Committee without the need for some corrective action. (JA reviews were generally much easier.) COs would gnash their teeth, but they respected the Committee. The Committee were detailed and meticulous, but they respected a rational argument, even if they didn't agree. The problem was that they were so knowledgeable you just couldn't get anything past them. They were legendary. If the dollar value of an action was high enough that the action required approval of the command four-star or the service Secretary, there was also a command-level committee, but they were not as tough. One of the things that made DOD contracting so challenging when I started was the discipline and quality control. Every service had such a "staff" review process for significant actions. I'm sure they still do, at least at some places. The most famous contracting professional who ever lived was one of those staffers, the late Gordon Wade Rule of the Navy, who was so famous that "The New York Times" wrote a long story about him, authored by the reporter Brit Hume. Bob Antonio has mentioned him and has posted some of his writings here at Wifcon. Here is one of his obituaries: https://www.washingtonpost.com/archive/local/1982/08/12/navy-procurement-official/a6cf2fdc-3da1-4c6b-9b10-b56aad035524/ And you may have read this blog post by Bob: http://www.wifcon.com/discussion/index.php?/blogs/entry/3279-a-contracting-officer-in-the-midst-of-a-maelstrom/ While complaints about bureaucracy and staffers are commonplace---and I've made them---a good staff and a staff good review process is worth its weight in gold, especially these days, when the government does not provide contract specialists with the professional education or require the knowledge and experience that it once did as a prerequisite to CO appointment.
  8. @Sam101I am answering only your first question. Although the agency claimed that it had sought only clarification from Salient after receipt of final proposal revisions, the GAO ruled that the agency had, in fact, reopened discussions with Salient. When it did that it should have made a new competitive range decision and reopened discussions with all still within the competitive range. If supportable under FAR 15.306(c), the agency could have eliminated all but one from the competitive range in the second go around.
  9. I have never had a job in contracting where there wasn't a "staff" that could overrule a contracting officer. They usually worked for the chief of the contracting office. When I was a chief of a contracting office the staff that reviewed my determinations worked for the head of the contracting activity. In my experience the existence of "sfaff" was simply a fact of life. I always saw my job as crafting an argument in support of my determinations. The guiding principles don't eliminate the need to craft arguments.
  10. @General.ZhukovI don't know why you think there is a "bright line." The distinction between commercial and noncommercial is anything but "bright." It's quite dim and fuzzy, in fact. That's the problem. Commercial items policy is an exception to standard contracting laws, regulations, and contract terms. The policy was established by statute in 1994. The goal was to simplify contracting processes and contract clauses in order to make government contracts more attractive to commercial firms that otherwise wanted nothing to do with them. If you study (not just read) the Federal contracting rules you will notice a pattern: rule and exception. Congress enacts a law or the executive branch establishes a policy that is considered onerous but necessary. However, it is either recognized at the outset or determined over the course of time that the policy is not always appropriate, so exceptions are made. A good example is the set of rules in FAR 15.403 about requiring the submission of certified cost or pricing data, which includes the exceptions listed in FAR 15.403-1. Other examples are exceptions to the requirement to seek full and open competition, exceptions to the application of socio-economic policies; exceptions to the requirement to impose cost accounting standards, etc. Other Transaction Authority (OTA) is one very big exception to the requirement to comply with the FAR. Some exceptions are established when a new rule is imposed; others are developed over the course of time. Some exceptions are discretionary; others are imposed. For an example of a discretionary exception, see FAR 5.102(a)(5) about the availability of solicitations. For an example of an imposed exception, see FAR 15.403-1(b)(1) about adequate price competition. It tends to be the case that applications of exceptions are controversial, because they free contractors from what what Congress and executive agency officials otherwise consider to be important obligations and frees agencies from the use of procedural safeguards. They are controversial because they rest on fuzzy distinctions and because the discretion to apply them is rarely if ever unfettered. Thus, the application of the adequate price competition exception to the requirement to obtain certified cost or pricing data has historically been very controversial, because Congress has thought that such data were essential to fair and reasonable pricing, and because the adequacy of price competition has always been a matter of judgment within limits. The application of the commercial items exception has occasionally been controversial. Consider, for example, the Air Force's mid-1990s decision to declare the C-130J aircraft a commercial item. It caused quite a fuss, was ultimately reversed, and resulted in legislation limiting the application of commercial items policy to some kinds of DOD acquisitions. However, it made sense to some people based on the "of a type" standard in the definition of commercial items. Unfortunately for the Air Force, it made no sense at all to Senator John McCain: A lot of people want "bright lines" when it comes to exceptions to standard rules and "acquisition checks." Unfortunately, dim and fuzzy concepts like "commercial items" don't have bright and sharp lines.
  11. Do you mean things you need to learn?
  12. No doubt that interviews can score on occasion, but I'm not convinced that occasional scores yield greater riches than systematic digging. Again, I wonder what the MBAs have learned about solid business research.
  13. Interviewing sounds labor intensive and time-consuming. Is it efficient? How many interviews are you going to conduct? How often is the payoff worth the effort? What kind of information does it produce: verifiable facts, opinions, rumors, all of the preceding? Why rely on "information" provided by someone of unknown reliability? Does anyone ever search court (Federal and state) and board decisions? How about news reports and business journals? State and local agencies? Information sources like Bloomberg Intelligence? Does the government ever use business info subscription services? We live in the age of information, but some of what I have been reading in this thread strikes me as amateurish. I think the government should research offerors the way that businesses research companies when they are considering mergers and acquisitions. It seems to me that some government agencies award important contracts to companies they know very little about, and they do it without even conducting "discussions". A lot of contract specialists have MBAs. Do they bring what they have learned about business research to source selection teams?
  14. @formerfed So how do you meet the challenge?
  15. Steve is also co-author with Ralph Nash of Government Contract Changes, the standard text on the subject.
  16. You can award five "C" contracts from a single solicitation as long as you have the funds to do so. The government has been doing that for decades. Almost every major system began with awards to two or three contractors from a single solicitation. Off hand, I don't know of any regulation that describes the process, but you don't need express authority in order to do it. You just need enough money. It's a viable acquisition strategy. I don't know off hand of any regulation that describes the process, but it is pretty common in some parts of the R&D world. You don't need special permission.
  17. I think that if the rule of two is satisfied, then an agency must either set aside an acquisition for award of a new contract or set an order aside under a MATOC. I think that a reasonable interpretation of 15 USC 644(r)(2) is that it lets COs depart from the requirements of the two statutes it mentions, which means that they do not have to not give "all" contractors a fair opportunity. It specifically mentions discretion with respect to those two statutes. It makes no mention of FAR, of which FAR 19.502-2(b) is a part. I don't think 15 USC 644(r)(2) was written to relieve COs from the requirement to set-aside an acquisition when there are two or more responsible small businesses simply by choosing to proceed under a MATOC. If that were the case, why didn't the FAR councils write something for MATOCs like they did in FAR 8.404 for GSA FSS? All they had to say was: When deciding whether to conduct an acquisition by placing an order under a multiple-award contract, or when issuing an order under a multiple-award contract, agencies need not comply with FAR 19.502-2(b). However, they may set an order aside for small businesses in general, or for any subcategory of small businesses, without providing a fair opportunity to other businesses. I cannot believe that Congress has intentionally allowed agencies to disregard the rule of two simply by choosing to issue an order against a MATOC.
  18. @Don Mansfield You expressing concern for ji20874's feelings. Talk about strange bedfellows. How about the whole-text canon, the presumption against effectiveness canon, and the harmonius-reading canons? 15 USC 644 is long. Read 15 USC 644(a) and 15 USC 644(r)(2) and ask yourself if GAO's interpretation of the latter and its logical consequence make sense in terms of the former. Did the Congress really want to undermine the effectiveness of the rule of two by making it inapplicable to MATOCs? ITility argued that application of the rule of two prior to the selection of an acquisition method and satisfaction of the two set-aside criterion should block proceeding under a MATOC, and I have thought that way, too. But what if it meant only that when the rule of two is satisfied an agency cannot proceed under a MATOC that does not include at least two small businesses. What if it meant that the agency could proceed under the MATOC if it could set the order aside? Some of you have argued that 15 USC 644(r)(2) makes setting an order aside a matter of unfettered discretion. Read the statute again. What if the discretion is to restrict the fair opportunity process to small businesses as necessary? And consider this quote from Tolliver:
  19. @ji20874Why withdraw? What's up with you? We're talking about stuff, that's all. There's nothing at stake here. We're working it out. Thinking. On second thought, go ahead and withdraw. I think you mostly enjoy quick-answer in-and-out, which I don't really care for. But I understand. When I got started in this business as an intern I used to watch and listen to the GS-12 contract specialists, real pros, argue off and on for days about various contracting issues. I learned a lot that way. I miss that. I don't enjoy answering poorly-worded elementary questions that people could answer for themselves through a little research and thought. Yes, ji20874, withdraw. It's for the best. People who don't like to argue shouldn't do it. "I am content with my understanding." Wow. A virtual repudiation of Western civilization. It's a good thing not everybody thinks that way. Nobody should ever be content with their understanding. I'm not content with mine about much of anything. I'm not content with mine about this topic. I found this on Headspace.com, in an article by Jeremy Deaton entitled, "The case for owning your self-doubt": I argue because I'm not sure of myself and want to test my beliefs.
  20. @Don MansfieldFrom Reading Law: The Interpretation of Legal Texts (2012) by Antonin Scalia and Bryan Garner, from the section, Fundamental Principles: In any case, I'm not yet ready to accept GAO's assertion that applying the rule of two to MATOCs would render 15 USC 644(r)(2) meaningless. I think it would depend on how it is applied.
  21. @ji20874According to my dictionary (Chambers) it means, among other things, "very highly esteemed."
  22. @ji20874I think we may indeed have different understandings of the word discretion. Mine is based on law. See the entry for discretion in Black's Law Dictionary: Agency and CO decisions that require judgments require exercises of discretion. There are more than 2,000 GAO decisions which stand for that proposition. Now, I will rely again on the GAO. See Owens & Minor Distribution, Inc. GAO B-218223.5, Feb. 3, 2021: When determining whether the rule of two has been satisfied, a CO must decide whether there are at least two responsible small businesses. Determinations of responsibility are judgments that are within the CO's discretion. See HomeSafe Alliance LLC, GAO B-418266.5, Oct. 21, 2020: Again, my research has found more than 2,000 GAO decisions in which it is stated that judgments are matters of discretion. Determinations of responsibility are matters of judgment. And that is why I said, "By the way, agencies do have discretion with respect to the rule of two." So that is my understanding of discretion. What is yours?
  23. @ji20874I hope it becomes streamlined. But setting an order aside shouldn't make it any less streamlined. I tellin' ya: If the GAO is right the small business lobby is going to go to work on Congress and the rule of two is going to become statutory. I have to sign off for a while. You guys have at it.
  24. @ji20874You didn't read carefully. The discretion is not with respect to complying with the rule when there are two small businesses. The discretion is with respect to whether there are two small businesses. I'm relying on your precious GAO, of which you think so highly. They said the CO has discretion in that regard.
  25. By the way, agencies do have discretion with respect to the rule of two. It is discretion with respect to the determination whether there are two or more responsible small businesses that can do the work, not with respect to complying with the rule if there are two or more such small businesses. See AeroSage, LLC. GAO B-414917, Oct. 17, 2017: Emphasis added. The determination as to whether there are two responsible small businesses. Maybe that's the discretion that the CO gets to exercise pursuant to 15 USC 644(r)(2) when deciding whether to comply with the fair opportunity statutes.
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