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Vern Edwards

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Everything posted by Vern Edwards

  1. Read the statute, 15 USC 644(r)(2): Note the specific references to the two statutes. I think that could be interpreted as sdvr suggests: it frees agencies from the requirement to provide a fair opportunity to "all contractors" so they can make set asides in accordance with the rule of two; it does not free agencies from the requirement to comply with the rule of two when placing orders. Before the law the fair opportunity statute conflicted with the rule of two regulation, statute taking precedence. FAR 15 USC 644(r)(2) eliminated the conflict. Why shouldn't it be read that way? If you read it that way, then when considering whether to proceed under a MATOC a CO might be able to comply with the rule of two by setting an order aside. That would eliminate any issue about the applicability of the rule of two to MATOCs. If the rule of two applies, and if a MATOC has no small business contractors, or only one, then the CO would have to award a new contract instead of placing an order. That approach would be consistent with national small business policy as set forth in 15 USC 644(a), which has been in place for decades. I doubt very much that Congress intended that agencies be able to bypass the rule of two simply by choosing to proceed under a MATOC. The rule of two has been around since 1979. When OFPP once proposed to eliminate it Congress threatened to make it statutory instead of just regulatory. Do you think they intended to abandon it when they passed the Small Business Jobs Act of 2010?
  2. @ji20874 I appreciate your thoughts, and I thank you for sharing them. You don't have to preface your remarks about anything by saying you are not a lawyer. I am not a lawyer. You and I are acquisition practitioners of long-standing. I do not come here for the opinions of lawyers. I know plenty of lawyers and some of the best in the country. I can call or write to them when I want to discuss a legal issue with them. Besides, they don't necessarily know the answer. They learn about this stuff the same way we do—by reading, thinking, talking, and listening. But what lawyers are especially good at is researching a problem, thinking about it in a special way, and constructing special kinds of arguments. We can do that, too—but we can't give legal advice or represent clients. Of course your thoughts are honest! Why wouldn't they be? You and I don't always agree, but so what? In this case I have developed a preliminary opinion, which has been published, but I'm still pondering the issue, so I came here to see what others think. What I want to do is find a solution to the problem that makes sense. But I think we have to work our way through it in order to get there. Thanks for contributing to this thread. Don't go away. I hope this is more interesting than trying to answer unclear questions.
  3. @Don Mansfield So what? Even if that is true—though it may not be—why would that make the court's decision about the application of the rule of two wrong? Maybe it means what it says: "[N]otwithstanding the fair opportunity requirements under section 2304c(b) of title 10 and section 4106(c) of title 41, [agencies may] set aside orders placed against multiple award contracts for small business concerns, including the subcategories of small business concerns identified in subsection (g)(2)..."
  4. It is frankly hard for me to imagine any IT service that would not be "of a type" that is sold commercially at market prices. DOD conducted its Joint Enterprise Defense Infrastructure (JEDI) cloud acquisition as commercial, and that is to be used to support combat operations, among other things. I think it's the nature of the work that matters, the "type" of work, not the purpose. I remember speaking at a conference conducted 20 years ago by the Forest Service and the Department of the Interior Office of Aircraft Services about wildfire aircraft operations and telling them that flight operations for smoke jumpers were a commercial item. I thought they were going to have a fit. No way flying smoke jumpers to deploy for firefighting operations was commercial! Then I said, "Are you kidding me? Go to almost any rural airport in America on a weekend and they're dropping parachutists out of airplanes like crazy and from much higher altitudes. And have you seen what Hollywood is doing with aircraft lately?" They became very quiet. They've been buying those services as commercial ever since, and glad of it. The fact is that the definition of commercial services is so broad that it encompasses almost any "type" of work that you can think of. The commercial market is much bigger and more vibrant that the government market. Heck, they're getting ready to take ordinary people into space. Some commercial companies are guiding tourists to the summit of Mt. Everest. And market prices are just the prices that companies charge for those types of services. Elon Musk and Richard Branson are going to charge market prices for a trip to low earth orbit pretty soon, and someday for a trip to the Moon. Musk is doing stuff with commercially developed launch vehicles that NASA only dreamed of. Sooner or later, everything is commercial. Even war. Every hear of Mike Hoare? https://www.nytimes.com/interactive/2020/12/23/magazine/mike-hoare-failed-coup.html
  5. Thanks all for the comments! Have you all seen Tolliver v. U.S., 151 Fed.Cl. 70 (Nov. 2020) and ITility, LLC, GAO B-419167 (Dec. 2020)? If so, who do you think is right?
  6. Emphasis added. I wonder what you mean by "commercial systems." What systems are those? Hardware systems? Software systems? Work process systems? Work procedure systems? If you can show that the methods (hardware, software, processes, and procedures) that the contractors must use when rendering their services to the Government are not in use in the commercial sector, then I think you have a pretty good argument that the services are not commercial in nature. I don't think that the labor categories used, in and of themselves, are a sufficient basis for a commercial item determination. I think you have to consider methods of performance. Can you show that? Can you prove it? I'm not asking you to answer. I don't care. I'm just suggesting that you ask yourself those questions. Government personnel love to distinguish their work by saying that it involves "highly complex" or "large and highly complex" acquisitions. But there are plenty of large and highly complex acquisitions in the commercial sector. If labor categories are not enough for a determination, neither is complexity. I suspect that your position is dubious, but I doubt that I know as much about IT as you. So I hope that your agency listens to you with an open mind and that you make a good argument.
  7. Why bother making such an assessment? FAR 12.102, Applicability, states: Emphasis added. Thus, if the services are, in fact, commercial items, then there is no choice. Any assessment of risk would not be dispositive, unless you are hoping to persuade others to ignore the FAR because you think compliance would be too risky. I suggest that you stay focused on the question of whether the services are or are not commercial items. If they are, then the case is closed. Why not issue a Request for Information (RFI), see FAR 15.201(e), that describes the services you're talking about, and ask industry for input as to whether they think the services are or are not commercial items as defined in FAR 2.101? You say: Well, then, when you issue your RFI you can also ask if a changes clause more like the one at FAR 52.243-1, Alt. 1, is used in commercial contracts for such services. If so, then you can tailor the changes provision in FAR 52.212-4(c) pursuant to FAR 12.302(a) and include the FAR changes clause, or one similar to it. Or, if the use of the FAR changes clause would be inconsistent with commercial practice, you can, pursuant to FAR 12.302(c), request a waiver allowing you to use a FAR-type changes clause. See, for example, Crescent Helicopters, GAO B-284734, May 30, 2000, in which the agency obtained a waiver in accordance with FAR 12.302(c) with regard to pilot and mechanic qualification, even after issuance of its RFP. There may be some advantages to procuring such service requirements under FAR Part 12. A number of firms in the private sector buy "highly complex information technology service[s]." Some of them employ high-level security procedures. Part 12 might even save your agency some money.
  8. The contracting officer should not deobligate funds following a commercial item T4C before receiving from a trustworthy source a documented estimate of the percentage of work performed and "reasonable charges" resulting from the termination, which might be considerable. Under some contracts that information might not be known or readily apparent.
  9. Yes, either on a pass or fail basis or on the basis of the degree or extent to which they are present or absent.
  10. You are right. Your memory is vague. I don't remember saying that. But I've said a lot of things. I do think that "reducing the funding" (whatever that means) before settling the termination sounds hasty. But your opening paragraph is not entirely clear, and I don't know all of the facts.
  11. Yes. 3d edition, Vol. 1, Ch. 5. Thanks, Joel. Yes, that was the question. My answer is: Why not? It's been done before. I don't know of any rule against it. That's not saying it's a good idea.
  12. If the research project is a nonseverable ("entire") bona fide need of the year for which the funds were appropriated, you can use those funds even if the project will cross fiscal years. See GAO Red Book, 3d ed. Vol. 1, Ch. 5, B.5, Services rendered beyond the fiscal year:
  13. Maybe you could say that the government is going to determine its level of confidence in each offeror on the basis of its assessment of each offeror's experience. In my Chambers dictionary, assess means "evaluate or estimate the nature, ability, or quality of [something). Determine means, among other things, "to decide."
  14. Careless writing, which means careless thinking. In source selection, people (evaluators) assess things (offerors and their offers) on the basis of their attributes --- features, qualities, characteristics. In government contracting (FAR Part 15), those attributes are called "evaluation factors" or "evaluation criteria". In formal terms, the source selection evaluation process is a process of "multiple attribute decision making" (aka, "multiple criteria decision analysis" or just "decision analysis"). See: Keeney, Value-Focused Thinking (1992); Goodwin & Wright, Decision Analysis for Management Judgment, 5th ed. (2014); and Howard & Abbas, Foundations of Decision Analysis, Global Edition (2016).
  15. There has been another decision since the one cited by H2H: Chugach, 20-1 BCA P 37617, May 27, 2020, in which the board denied the Navy's motion for summary judgment. Here is what Prof. Nash had to say about the Chugach decisions (there have been four) last September: Moreover, what if the government had told offerors up front that it was going to award without discussions? What rights would the contractor then have under 15.306(d)(3)? The GAO has long held that the government has no obligation to conduct discussions unless it says it intends to do so. Chugach's lawyers are engaging in recon by fire, throwing every theory of recovery at the board that they can think of. They are firing salvos. Frankly, I think this so-called "new type of claim" ("negligent negotiation") is little more than a variation of the claim that the government failed to disclose superior knowledge, which is an old idea. The government knew that Chugach didn't understand the requirement (what would actually be expected of it) and went ahead with the award anyway, without putting them on notice, without negotiating in good faith. See Kronman, "Mistake, Disclosure, Information, and the Law of Contracts," 7 Journal of Legal Studies 1 (1978). https://core.ac.uk/download/pdf/234133655.pdf I hope the government loses this claim and has to pay up. It would be good for our country. Then maybe we can bring some common sense and sound practice to source selection under FAR Part 15, which is a deep well of government incompetence. And losing this dispute might force policymakers and contracting officers to admit to themselves that their precious "performance work statements" are a fraud, and prompt them to negotiate relational contracts instead of transactional contracts for support services. Source selection under FAR Part 15 and service contracting in general are ongoing demonstrations of lack of vision and practical ineptitude. I hope the government takes a hard hit. I hope it takes a solid kick in the pants. But I suspect that it won't. My guess is that the parties will settle. Chugach is represented by a first-rate law firm. First-rate. They'd rather settle than go the distance before the board. And maybe the government has lost enough motions to make its lawyers think twice about fighting it out.
  16. @Sam101See FAR 15.307(b), then see Medical Receivable Solutions, GAO B-409358, March 19, 2014: See also, DAE Corp., GAO B-259866, May 8, 1995: On the other hand, see Raytheon Co., GAO B-409998, July 25, 2011: None of those cases involved corrective actions. There are more than 60 such GAO cases. See ABF Freight System, Inc. v. U.S., 55 Fed. Cl. 392, 401 - 403 (2003) in which the Court of Federal Claims analyzed the language in FAR 15.307(b) in response to a complaint that the agency improperly limited the scope of revisions. The court concluded: There are numerous GAO cases that report that the agency limited revisions, but the limitations were not challenged. But see Feldman, 2 Government Contract Awards: Negotiation and Sealed Bidding, § 17.2, Requests for revisions: Feldman is a highly opinionated but highly respected authority. You asked a good question, but questions about when and how agencies may limit proposal revisions are complex and not for resolution by newcomers to Federal contracting. In my opinion, as a general rule it is foolish for agencies to limit what offerors can change when submitting final proposal revisions.
  17. @Sam101 Wow. You seem awfully opinionated for someone who showed up in the beginner forum asking for advice just last Tuesday. And then you end with a sentence like this: What do you know about common sense in acquisition? Good luck, kid. I got nothing more for you.
  18. @Sam101Why say anything about recent and relevant? Why include the words in Section M?
  19. In the late 1980s I wrote a description of past performance as an evaluation factor for a source selection textbook for the Defense Logistics Agency, to be used in an acquisition in which the only evaluation factors were to be price and past performance. DLA began using it in their RFPs. In 1991 a protest was filed against one of those procurements. See CORVAC, Inc., B-244766, Nov. 13, 1991. The requirement was for the handling of hazardous materials. The evaluation factors were price and past performance, with price being most important. The protest was against the evaluation of past performance. Here is some of the language about past performance that was in the RFP, as reported by the GAO: As I recall, the missing paragraph (2) described the sources of information that the agency would consult. Note that the fourth paragraph stated that past performance would not be "scored." Today it would say that it will not be "rated." I do not see any point in assigning ratings to past performance. A rating is just something to argue about. Six companies submitted proposals. The agency awarded the contract to the company with the third lowest price. The company with the second lowest price protested. The GAO denied the protest. The COVAC decision has been cited 107 times. OFPP later adopted the language in the last paragraph, (5), as an official definition. See 58 Fed. Reg. 3573, Jan. 11, 1993. See also FAR 42.1501(a). My reason for pointing this out is to say: Keep it simple and speak to offerors in plain English. Official coverage of past performance has become confusing and convoluted in the years since the late 1980s. Time and bureaucracy have not been kind to contracting.
  20. @FrankJon Hey Frank! Good input. Thanks! I have softened a little on the birding thing. I don't remember if we spoke after I got back from Iceland or Ireland. Probably Iceland. I had a great experience on both trips, but I had a sensational birder experience on the Saltee Islands off Ireland, one I'll never forget. So good, in fact, that I went back to Ireland for a longer visit about four months later. But I still have little patience for standing around looking through binoculars for hours at a time while people whisper, "There it is! There it is!" referring to something only a little bigger than a golf ball. I don't have an infantryman's eyes anymore.
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