Vern Edwards

@Don Mansfield$4,200 for a Dell laptop. A Dell?! Heck, man, I can buy a top-of-the-line, fully-loaded, 16" MacBook Pro for almost $2,000 less than that! I'd have enough left to buy an Apple watch! One of the good ones! A strongly-worded letter demanding compensation in a sum certain RIGHT BLEEPING NOW addressed to someone high up in the company should do the trick. That, plus a CPARS threat. And by the way, I'd tell them I was going to notify the FBI, the OSI, the CID, and the NCI. THE 82ND AIRBORNE! THE 75TH RANGERS! THE GREEN BERETS! THE SEALS! DELTA FORCE! The heck with the local fuzz. What I wouldn't do is ask for the company's property management policies and procedures. I don't want to be insulting, but that just sounds dumb. You know, our government is just plain incompetent. It's become a threat to life, liberty, and the pursuit of happiness! When I think of all the stuff we need—fire-fighters and equipment in my part of the USA—the idea of paying taxes for somebody to read a company's property management policies and procedures because they lost one of our laptops makes me want to... Well, I better not say.

What's the expected service life of the equipment? How long does the user plan to use it?

When does an agency regulation have the "force and effect of law"? See LAX ELECTRONICS, INC. d/b/a AUTOMATIC CONNECTOR v. United States, Court of Federal Claims No. 19-1668C, June 10, 2021, in which the Court cites the Federal Circuit. https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv1668-36-0 The discussion is on pages 5 - 8.

What kind of gold-plated laptop was this? Make and model?

You must understand that the definition of subcontractor is caught up in socio-economic acquisition policy and is thus partly political. The FAR definitions of subcontractor are dubious from an industrial point of view, in which it would seem to be better to distinguish between subcontractors and suppliers (or vendors), etc. The definition in FAR is overly broad, in part because it eliminates arguments about distinctions and in part because the socio-economic/political goal is to distribute as much business as possible to a particular economic sector. That goal is based in part on the myth of small business job creation. See Atkinson and Lind, Big Is Beautiful: Debunking the Myth of Small Business (MIT, 2018), pp. 81 - 93. It also reflects a general dislike and distrust of "big business." Ibid., pp. 221-239.

Maybe you're right, but the OP referred to "experienced 1102s," which doesn't read like something a contractor would write.

@TechnicallyAcceptable From your opening post: You have indicated that your office is conducting a competition pursuant to FAR Subpart 8.4. I presume that you are proceeding under FAR 8.405-2, "Ordering procedures for services requiring a statement of work." However, your office, or maybe just your PWAC contracting officer, seems to suffer from FAR Part 15 Obsession Syndrome. The words "exchange," "discussion," "clarification," "weakness," and "deficiency" — all from FAR Part 15 — do not appear anywhere in FAR Subpart 8.4. However, given your office's apparent determination to conduct a FAR Part 15 style competition, I suspect that its RFQ refers to one or more of those terms and otherwise reflects its Part 15 obsession. But since I have not seen or read your RFQ, I'm will not give you any guidance or advice beyond what I provided in my earlier post, except to suggest that you read this, from Innovative Management & Technology Approaches, Inc., GAO decision B-418823.4, January 8, 2021, in which the GAO sustained a protest against the conduct of an 8.4 competition by an office like yours: I also suggest that your contracting officer educate themself about FAR Part 15. Finally, I suggest that you read this, http://www.wifcon.com/anal/analcomproc.htm , before you conduct your next 8.4 competition.

DOD is understandably sensitive about security. In my opinion, Congress should have allowed it to make its own rules in that regard.

Here's what the GAO said on August 6, 2021, in MAXIMUM Federal Services, Inc., B-419487.2, They've said that or something like it in more than 250 decisions going back to 1986. See also Bodell Construction Company, B-419213, December 28, 2020: They've said that or something like it in more than 35 decisions going back to 1980. I'll add that contracting officers should not conduct anything called "discussions" in FAR Subpart 8.4 acquisitions.

And fought hard.

@Don MansfieldTake a look at It's Not Complicated: The Art and Science of Complexity in Business, by Rick Nason. He describes a complex system as one in which: Successful outcomes are not easily and objectively definable. Factors and elements necessary for a successful outcome are not known in advance. Exactness is not required. Nason classifies systems as (a) simple, (b) complicated, and (c) complex. A simple task is making coffee for the office. A complicated task is preparing annual business financial statements. A complex task is making a sales presentation to a potentially important client.

@Don MansfieldBirds have behaviors, not rules. The author of your article is confused. If birds were people they would ask for definitions of "hit," "neighbor," and "obstacle." The problem in acquisition is that it is a complex adaptive system on which Congress and policymakers have tried to impose hard rules. "Consider price before when selecting a contractor" is a simple rule. Now look at FAR Subparts 15.4 and 31.2. Congress and the policymakers have applied complicated thinking to a complex adaptive system, writing generally strict rules that lead the system operators into maladaptive behavior, which is why the system often does not perform satisfactorily. Think JEDI. The problem is how to manage complex adaptivity without writing complicated rules, which make the system maladaped.

@Don MansfieldFAR 15.304(c)(1)(i), "Price or cost to the Government shall be evaluated in every source selection." But I take issue with the premise that complex adaptive systems have simple "rules" in the sense of commands.

@WifWafI have just found and ordered a book written by General Dempsey and published last year: No Time for Spectators: The Lessons That Mattered Most from West Point to the West Wing (2020).

@WifWafThanks, WifWaf! I've download the paper, and I'm going to buy the books! I really appreciate the input. Vern

As I recall, questions have been posted in the past about when a new procurement statute applies to contracting operations? When enacted or when the FAR implementation is promulgated in a Federal Acquisition Circular or through a FAR deviation? In a new decision on a sustained protest posted to the Wifcon home page, the GAO addresses that issue at some length, citing the Supreme Court. And while the decision does not answer all questions, it is essential reading for contracting officers. See InfoPoint LLC, B-419856, Aug. 27, 2021. Here is an excerpt: The discussion goes on for a couple of pages and becomes complicated. In my opinion it's a must-read.

Deleted. It's hypothetical. I should have asked for the data item description.

If I were the CO I wouldn't terminate for default. A T-for-D settlement of a cost-reimbursement contract is too generous to the contractor. Instead, I would send the contractor a claim for breach damages (assuming I could show them), write a final decision, and send the contractor a bill. If necessary I would recover through offset against other contracts. And then there's the CPARS.

Addendum to my last post. The phrase "period of performance" has been used in government contracts since at least the middle of the 19th Century. The earliest case to mention it was an 1875 decision of the U.S. Court of Claims. The phrase has been used rather indiscriminately in supply contracts, service contracts, and construction contracts. It has appeared in 420 Court of Federal Claims (and predecessors) decisions, 1,634 board of contract appeal decisions, and 1,094 GAO decisions. It appears in 18 places in the United State Code, including nine places in Title 10, but nowhere in Title 41. It appears in 298 places in the Code of Federal Regulations. It appears in the FAR itself 41 times, but is not defined. It appears in the entire FAR System (FAR + supps) 121 times, but is not defined in any of the FAR supplements. If you look it up in the online DAU Glossary of Defense Acquisition Terms and Acronyms the entry reads, "See also fiscal year." That's it. There is no entry for it in the recently released 5th edition of The Government Contracts Reference Book. The term does not appear in Black's Law Dictionary. In my opinion it is closer to jargon than to a term of art, because usage is inconsistent.

@here_2_helpKeep in mind that the following comments are made in the context of this: Now, here's your question: The purpose of a "period of performance" is not "to signal contract completion to the parties." The purpose of a "period of performance" is to specify the period of time within which the contractor must perform and complete the work it has promised to do. The principal contract performance requirements must be specified in contract line items. There must be a separate contract line item or subline item for each contract "deliverable," and each line item must have a "separate delivery schedule, destination, period of performance, or place of performance." See FAR 4.1001, 4.1003(d), Subpart 11.4, 14.201-2(f), and 15.204-2(f). Any contract that has more than one line item must have more than one period of performance, delivery schedule, or completion date, even if all the dates are the same. There really is no such thing as a "contract period of performance," even though FAR uses that phrase in three places. (See FAR 11.501, 16.401, and 16.504). Contracts have line item and subline item periods of performance. But contracts impose other obligations on the parties in addition to those specified in the contract line items. Many contract clauses impose obligations that continue in effect for years after the expiration of line item periods of performance. Here's one you'll know, from FAR 52.215-2, Audit and Records—Negotiation (JUN 2020): That obligation remains in effect for years after the end of the period of performance and final payment. A warranty on a roof installed under a construction contract may be in effect for as long as 20 years after completion and acceptance of the work and final payment. A conntract is not "over" as long as any obligation has not been discharged by performance, expiration, mutual agreement, or termination. See Restatement of the Law, Contracts, Second § 235, to which I referred in my first response to you. Here it is again: Here is an accompanying comment in the Restatement: The Government bears such obligations, as well. A contractor may file a claim at any time within six years of its accrual, and a contracting officer is obligated to make a final decision on such claims within a specified time period thereafter. See FAR 33.206 and 52.233-1. A claim might come in years after the end of the period of performance of a line item from which it arises. In the case you described in your opening post, you spoke of a data item listed in a Contract Data Requirements List (CDRL), DD Form 1423. If that CDRL was a DOD contract exhibit, then it was identified in a line item. The CDRL form is a convenience, because each data item is a separate deliverable with its own delivery date(s). It eliminates the necessity of creating what might otherwise be a long list of contract line items. It is not unusual for data items to be deliverable after the end of the period of performance of the work that generated the data, specified in a different line item. You didn't say what the data item was. It could have been a mere status report or crucially important technical data. To say that the contract is "over" before that and other continuing obligations have been discharged by performance, mutual agreement, termination, or expiration, is to misunderstand the concepts of "period of performance" and contractual obligation. The regulations and our "profession" are very careless with concepts and terminology, sloppy even, and goodness knows we don't educate newbies well. But somehow, here_2_help, knowing you, I suspect that you already knew all this, but wanted to see something posted in which some independent source confirmed it, perhaps for the benefit of some clueless third party. Please forgive any typos in this post. It's long and I'm tired. Vern

@here_2_helpI'll answer your question tomorrow. The explanation will be long, and I want to write it on a better platform than this one and then paste it in. Stand by. Vern

Joel: I've been thinking about you in Mobile. Everything okay? Vern

Who knows? This is not the appropriate place for you to come for advice about such a problem. No one here can give you sound advice, except to say, Contact an attorney.

From my point of view the contract is over. Wrong. The contract is not over until all parties have been discharged. The "period of performance" is only one term of a contract. See Restatement of the Law, Second, Contracts § 235: It ain't over until all of it is over. If your statement really reflects your point of view, then you don't understand the concept of "period of performance." Most COs don't, either. Nor do many agency lawyers. FAR neither defines nor explains the concept, probably because it's not a textbook, and few people think beyond the FAR. As for what happens if you breach, ask the other party. Depending on what that CDRL item is, failure to deliver as required might be very costly.

It depends on how the option is written.