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Vern Edwards

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Everything posted by Vern Edwards

  1. What do you mean by "will the contractor [be] eligible to claim"? "Eligible"? Are you asking whether the contractor would be entitled to a price adjustment for something? What do you mean by "idle charges"? "Idle charges"? I don't know what that means. Do you mean the cost of idle facilities or the cost of idle capacity, or something else? The phrase "idle charges" does not appear anywhere in the FAR System, in any board of contract appeals or Court of Federal Claims decision, in any Federal Circuit decision, in Government Contract Costs & Pricing, in the Government Contract Costs Pricing & Accounting Report, or in The Nash & Cibinic Report.
  2. The new independent contractor rule and its subsequent withdrawal were matters of politics. The Trump Administration wanted to make it easier for employers to label workers independent contractors. The Biden Administration wants those workers to enjoy employee status and the protections that come with it. The Trump Administration pushed the rule through just days before Biden's inauguration. The Biden Administration responded by withdrawing the rule as soon as it took power. This is all very clear from the explanation of the rule announcing the withdrawal and the discussion of the public comments received about the withdrawal. If you are a professional regulation writer, your job is to write rules as directed. You should not be personally invested. It's just another task, one way or the other.
  3. Budget or estimate? They are not necessarily the same. A budget is how much money you have, which might be based on a cost estimate or on the amount you were given last year. An estimate is a prediction, perhaps a three or four year old one, of how much it will cost to achieve some end result. At least, that's what I take those words to mean. While there is nothing inherently improper (as far as I know) about disclosing the government's estimate or budget, you should be very careful about doing it, especially in acquisitions for services. What are you saying to offerors? What's the message? Why are you disclosing the budget or estimate? In order to "scope" the contract? If so, are you promising to stay within scope? Did the person or people who wrote the statement of work base it on the estimate or budget? Did they write it with the estimate, budget, and future costs in mind, or did they simply cut and paste from someone else's SOW for a similar project or from the last contract? If the contractor bids to the disclosed budget or estimate, but the requiring activity didn't keep that budget or estimate in mind when writing the SOW, and doesn't keep it in mind when demanding service, and insists upon "full performance" in return for payment, you could end up with a claim for out-of-scope change, and a court or board might consider the estimate or budget when interpreting the SOW. The contractor's lawyer will almost certainly argue that it should. Disclosing a budget or estimate in an RFP for a service is not the same as telling an auto dealer that you don't want to spend more than $45,000 for a pickup. There might be legal consequences after contract award. It's not a good idea for rookie acquisition teams or for agencies in which the requiring activity and the contracting office are not working very closely with one another and do not share a solid understanding of performance costs. And it's an especially stupid thing to do, in my opinion, if you are going to award without discussions.
  4. @Sam101 Thank you Sam101. Your answers are clear (a rarity here at Wifcon Forum), and I appreciate them.
  5. With respect to the rule that withdrew the rule, 86 Fed. Reg. 24303, May 6, 2021—the one that Bob posted on May 6—the topic is a very complex legal issue. Reading it is heavy going, but not because the rule is badly written. It struck me as one heck of a great piece of writing. To the extent that it is hard to follow, it is because the law (regulation and case law) is very complex. The explanation is masterful. That writer designed and executed terrific English sentences. Footnotes omitted. Very clear. Someone should mail a copy to the FAR councils. For students of regulation, the rule's discussion of the issues shows how terribly difficult it can be to define seemingly straightforward terms like employee and independent contractor in the context of government policy.
  6. @Sam101 I have three questions for you: 1. What kinds of things do you buy? 2. What do you mean by "approach"? 3. Is the offeror's description of its "approach" supposed to be a promise or set of promises or is it just information?
  7. "The Impossibility of Comprehending, or Even Reading, All Federal Regulations" https://www.mercatus.org/publications/regulation/impossibility-comprehending-or-even-reading-all-federal-regulations On May 6, Bob posted a notice of rule withdrawal by the Department of Labor. The rule was an interpretation of the meaning of "independent contractor" under the Fair Labor Standards Act. A 40-page proposed rule had been published on September 25, 2020. The 81-page final rule had been published on January 7, 2021, to be effective on March 8. But on March 7, DOL postponed implementation. Then on May 6 DOL withdrew the rule in the 24-page notice that Bob posted. All to interpret "independent contractor." Speaking politically, the final rule had been a last-minute Trump administration action, which the Biden administration promptly cancelled. Our government at work. Mirabile dictu. It's a miracle that anyone starts a business and creates jobs. We should erect a monument in D.C. to those brave enough to start businesses, hire people, and try to survive government. They are at least as brave as the ubiquitous generals on horseback.
  8. Garner, Garner's Guidelines for Drafting & Editing Contracts, 2019, West Academic Publishing.
  9. The statutory limitations may be interpreted to allow some variations in application. I wouldn't be worried about it. I might check with SBA. Then again, I might not. Why work overtime to find reasons why the agency should not find a way to facilitate a set-aside? Look for solutions.
  10. It's an old practice. I encountered it in my first Air Force source selection, which was in 1975. The idea, as I recall, was that seeing prices might affect technical evaluators' assessments of technical proposals. I don't recall whether it was official policy or just a practice norm. As for policy today, see FAR 15.305(a)(4).
  11. Could you create two line items—an FFP CLIN for management and a cost-reimbursement no fee CLIN (repair as-directed) for the repair work, then apply the limitations on subcontracting clause to the FFP CLIN but not the CR CLIN, with an explanatory memo to file? Treat it as a one-time FAR deviation, if necessary, in order to make a viable set-aside opportunity? Who would complain?
  12. Can you set a contract aside for small businesses if the terms of the contract would be such that no small business contractor could comply with the limitations on subcontracting?
  13. Yes, and part of that culture is appointing people to be contracting officers who are not qualified to be contracting officers on the basis of either personal traits, professional knowledge, or both. Chief Acquisition Officers and Senior Procurement Executives have failed to create cultures of continuous study and learning in their organizations and have allowed Heads of Contracting Activities and Chiefs of Contracting Offices to hand out certificates of appointment to the wrong people for the wrong reasons—in order to mollify discontented workers demanding recognition and promotion and to provide enough signatures to keep the paperwork moving. They have done great harm to the contracting career field, all while showing up to pontificate at "World Congresses" and promoting innovation and the latest big new thing in Contract Management magazine. It is silly for Supes's managers to think or hope that they can change the people who are disappointing them. It is silly because they, themselves, failed to educate, train, and develop those people and made them contracting officers before they were ready. And whom do those managers blame? They blame their victims. A manager, no matter how high, who is not a teacher, is not worth a damn. Just. That. Simple.
  14. @formerfedBut could you have mission success if the contract is poorly designed and drafted, awarded late after a sustained protest, and missing important clauses? Everyone has a role. A CO's role is to design a contract that is both mission-appropriate and compliant with law and regulation; to award it in a timely manner and in a way that does not result in a successful protest; and to administer it in a manner that facilitates problem resolution and mission accomplishment. In order to do those things the CO needs to be a master of concepts, principles, the applicable rules, acquisition process design, and acquisition process execution. The CO's client is the program, which looks to the CO for the knowledge and skill necessary to steer it safely past the rocks and shoals and the sandbars and mudflats of acquisition law, regulation, and process. Think of the CO as a riverboat pilot on the Mississippi, who takes control of the vessel to bring it through a tricky part of the passage on the voyage to ultimate success. When you take the conn, you have to know the river.
  15. If contracting officers are professionals, as some still say they are, then they don't have customers, they have clients. There is a world of difference.
  16. You get what you educate, train, develop, and appoint. Poor education, poor training, careless development, lax standards of appointment... VOILA! Professionalism is a habit of mind and action. It must be ingrained.
  17. I'm not sure it is an expansion on President Obama's order. I'll read and compare.
  18. What do you mean by "budget"? Do you mean "the estimated cost specified in the Schedule," "the total amount so far allotted," or something else?
  19. Here's what Section 8 says: That seems clear, but it's not. It applies to "any" new, existing, extended, or renewed "procurement contracts and contract-like instruments" for services and construction, except as provided by paragraphs (b) and (c). The question of what constitutes a "procurement contract" has been an issue in litigation several times at the GAO, the boards of contract appeals, the Court of Federal Claims, and the Federal Circuit. See, e.g., CMS Contract Management v. Massachusetts Housing Finance Agency, 745 F.3d 1379 (2016) for a case in which the GAO and the Federal Circuit disagreed with the Court of Federal Claims. The GAO and a district court have disagreed as to whether OTAs are procurement contracts. See Nash, "Postscript II: Protesting Other Transactions," The Nash & Cibinic Report, March 2020. Professors Nash and Cibinic have written 87 articles in which they discussed the meaning of "procurement contract." See also Vanguard Business Solutions v. The Department of State, CBCA 6951, April 16, 2021: Who knows what "contract-like instrument" means? And does "extended" include extensions for excusable delays and other such matters? Stand by for the implementation by the FAR councils, which, since they don't like to think, will probably just quote the language in the Executive Order. And senior government officials wonder why innovative startups don't want to do business with the Federal government. My advice is that they run, don't walk, from Federal agency contracts and subcontracts. I thought only Congress could raise the minimum wage. See Anderson, "Executive Orders, 'The Very Definition of Tyranny' and the Congressional Solution, The Separation of Powers Act," in Hastings Constitutional Law Quarterly (Spring 2002), 29 Hastings Const. L.Q. 589. If challenged in court on constitutional grounds, I wonder if the President's order would survive the current Supreme Court. We are descending into chaos. Enjoy the ride.
  20. @here_2_helpIt sounds systematic to me. There are a lot of ways to learn. I like that he is gathering arcane knowledge. It's the best kind.
  21. @SalusThat's a reasonable opinion. But keep in mind that government officials are bound by (1) statutes and regulations and (2) the terms of their contracts. NOAA likely complied with law and regulation as they were in 2018. Having done so, they cannot block a contractor from competing for future orders unless they have a legally supportable reason. The rise in the use of multiple-award task order contracts since the mid-1990s has been disruptive in many ways that were not anticipated when Congress authorized and set rules for their use in 1994. No one expected what has happened since, or the impact on small businesses. There are still issues to resolve with respect to small business policy. Your disappointment and frustration are understandable, but it does not sound to me like NOAA is deceiving or manipulating you.
  22. @SalusThe only agency empowered to determine a firm's size status is the SBA. SBA sets size standards and makes size determinations. See 13 CFR Part 121 and FAR 19.302 for details. An agency might have an opinion about whether a firm is or is not small, but that opinion has no official force. The SBA must make a determination, and FAR 19.302(c)(1) instructs contracting officers to refer their own or third-party size protests to the SBA. See also 13 CFR 121.403 and 13 CFR 121.1001.
  23. This is the kind of question that I find both fascinating and frustrating. Freyr apparently has both the IAA and the order for couches. We do not. Yet Freyr is here asking us what the limits of those agreements will permit. How would anyone here know? Most people seem to think that the answer lies in the agreements themselves. Why do people ask such questions? I think such questions arise from a belief or intuition that there is a generic answer that applies to all such cases, and Freyr wants to know what that answer might be. Why do people think such things? I wonder if it arises from training that leads people to believe or suspect that there is a rule for every circumstance and that it is known to someone or can be found: There simply must be a rule for what to do or what may be done in any given situation given specific facts. Maybe there is one BIG rule, like what scientists call "the God equation." It's the rule that will unify all rules and answer all questions. It will tell us why is there something instead of nothing. This is on my mind because I am reading a wonderful little book entitled, The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy, by the late, great, David Graeber. I would just mod the order and move on, with no thought about the IAA. What's the other agency going to do? Sue me? Why do we have an IAA with them in the first place? Are we doing the buying for them? Are they paying us? Can one agency terminate another agency for default? Then again, if I extend the delivery date in violation of the IAA, would it render the modvoid ab initio? And what if... And so it goes.
  24. I presume that your phrase, "these rules," refers to your bulleted list. If that is correct, then my reaction is that the list is just your description of what you think you were told by NOAA. As such, they are not descriptions of rules; they are merely your account of something that you think you were told. I've been around long enough to know that such accounts are not always reliable reports of what was really said. You said that the contract in question was awarded in 2018. Is that correct? If so, and if NOAA told you that it does not have to apply the recertification (aka, rerepresentation) rules that took effect late last year to a contract that was awarded in 2018, then it told you the truth. Actually, NOAA cannot apply them, because it would have no contractual right to do so even if it wanted to. Any attempt to apply them would be breach of contract. The new rules are contractually implemented by a new contract clause, FAR 52.219-28, Post-Award Small Business Program Rerepresentation (Nov 2020). Note the date of the clause. The new clause should not be in a contract that was awarded in 2018, unless it was added later through bilateral modification. Your contract probably includes the July 2013 version of the clause. The law does not give NOAA the authority to unilaterally modify the contract after award in order to implement the new policy. If you still have issues, then I suggest that you seek information and counsel from a law firm that practices in the field of small business law and regulation. Here's a truth about multiple-award contracts: To many of the firms that get into them, they turn out to be nothing more than attractive nuisances.
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