Vern Edwards

And you do that by starting a thread at a widely-read social media page that you entitle: "Major error by contracting officer" and by identifying the acquisition as being one for a large construction job in which discussions are currently underway, and in which the agency used the device known as an "EN" (Evaluation Notice), which is not a FAR term and is not used by all agencies. And you say that the information you were given "identifies some key characteristics of the competitor's strategy" and "and other procurement sensitive information." And at one point you related to the world the CO's instructions to you (which you have since deleted). That's helping the CO get out of a bind? Brilliant. At least "Chris" is not your real name. Right?

No. I would ask, but they may not know. This kind of thing happens. Make a record of it, follow the CO's instructions, document that you did, and go on about your business. Just continue to compete as best you can. I don't think you need to consult an attorney, but do as you please. You asked for advice. Here is some. You are talking too much in public. That's unintelligent. Publishing your story here won't make friends for your company in the agency. Do you really think no one knows who you are, who your company is, and who the agency is? How will this help your company? And in your opening post you called yourself a "cheater." Stupid.

Prime's total estimated cost (which includes the sub's estimated cost and fee) for the specified level of effort + Prime's fee (limited to 15 percent of prime's total estimated cost) = Total contract estimated cost and fee. Keep in mind that the prime is obligated only to make its best effort to deliver the specified level of effort within the estimated cost, so see ji20874's FAR reference to fee payment if the prime is unable to deliver the total level of effort within the estimated cost and the government decides not to fund a cost overrun.

@Chris: Do not notify the competitor. That is bad advice. Notify the CO and let the CO handle notifications. You are not supposed to know who the competitor is.

Long time readers of Wifcon Forum are familiar with the problem of poorly-asked questions. For a long time I have been thinking about questions and how to ask them. It's a complicated problem, and a common one, but one with no easy solutions, and I have not been able to find a book or article that provides solid guidance. Most books about questions deal with the questions on survey instruments, which are not what concern us. This morning, on Quora, I found a short response by Jens Hartmann of the Berlin University of the Arts about how to ask questions. It seems to provide good tips, so I'm posting it here for general consideration. One thing I learned long ago as a contract negotiator is that the ability to ask clear questions is an essential skill in contracting. It's not an easy thing to learn or to teach.

No. That is not what I said. The statutory fee limitations apply to the prime's fee no matter what its costs include. They do not apply to contractor negotiations with subcontractors. But if you break out the subcontract as a separate CLIN in the prime contract, with its own estimated cost and fee, then the limitations would apply. But that's only one of the issues that would be raised by a separate CLIN for a subcontract.

A standard T&M contract specifies a task to be completed, and requires the contractor to makes its best effort to complete that task within a ceiling price. If the contractor cannot do so it need not continue to perform unless the government increases the ceiling price. A standard CPFF LOE Term specifies work it be done up to a level of effort, and requires the contractor to make its best effort to deliver that level of effort within an estimated cost. They are not the same kind of deal. Look, I'm happy to help, but in order to do that it's necessary to clear up misconceptions. Ordinarily you would not establish a CLIN for a subcontractor task, with its own estimated cost and fee for the subcontractor, because there is no privity between the government and subcontractors. An exception might be made in a case in which part of the deal is to use Subcontractor X and only Subcontractor X to perform a specific task. Using anyone else would be a breach. Such an arrangement would essentially be a form of directed subcontracting. But even then, setting a separate fee for a subcontractor is problematical, because there is a statutory limit on fees under cost-reimbursement contracts, and a subcontractor's fee is usually an element of the prime contractor's cost. I'm not saying that you cannot do it, but it would be very unorthodox and, thus, potentially problematical. If you are going to do that, why not award a contract to the prospective subcontractor?

Less risky for whom, buyer or seller? There is no inherent requirement that a CPFF Level of Effort Term contract order specific labor categories. It might, but it also might not. T&M contracts, on the other hand, must specify labor categories and rates.

That's unorthodox. A CPFF Level of Effort Term contract specifies tasks, but does not specify completion. It might, for instance, specify: Spend 1,000 hours observing and recording interactions between mature and juvenile bald eagles at the confluence of the Wind River and the Columbia River. That's task, but it has no natural end. The level of effort sets the scope of the undertaking.

I am helping you, by showing you that you apparently do not understand either CPFF Level of Effort Term contracts or T&M contracts. No need to be grateful. Knowledge is its own reward.

Several reasons. I'll give you one—the deals are fundamentally different. A T&M contract does not specify a level of effort; it specifies a task to be completed, if possible, within a ceiling price, with payment at fixed hourly rates that include indirect costs and profit. The contractor is not obligated to deliver a specified number of hours, but inefficiency increases the contractor's profit. A CPFF Level of Effort Term contract does not specify a task to be completed; it specifies a level of effort (usually, a number of labor hours) to be delivered within an estimated cost, if possible. The contractor is obligated to deliver that number of hours. The contractor is reimbursed for its allowable incurred costs up to an estimated cost and is paid a fixed fee. Inefficiency does not increase the contractor's profit.

No, unless there were unusual circumstances. Yes, usually. No, I will not.

No, basically, it's not. But if it were, that would not make it a "deconstructed" (whatever that means) T&M.

Please explain that.

The opening post: The most recent post: Reasoning? What reasoning? How do those posts even relate? 🤪 Please don't try to explain. It will only make things worse. 😆 "Reasoning." 🤣

Yes, well... This has been one of those threads in which the story has dribbled out. I don't care to speculate about what it's really about. I wish the OP well, but I'm not interested.

That assumes that the "new work" is within the scope of the order.

I learned an interesting thing that I did not know until this morning. It has to do with a decision by the ASBCA, URS Federal Support Services, Inc., ASBCA 59998, 21-1 BCA ¶ _____, May 27,2020. Here is how Prof. Nash has described the matter in an article to be published next month: Apparently, the ruling was not a matter of first impression. See Boeing Co., ASBCA 37579, 89-2 BCA ¶ 21,992, in which the board said: I have nothing to say about how if at all those rulings apply to Boomer635's tale.

Yes, I have experienced such a mistake. I have no idea what will become of the source selection, neither does anybody else here. It probably depends on the nature of the material that was disclosed to you. Let your imagination run wild. What will be will be. But your company better notify the CO. RIGHT NOW!

What is "PIO"? Are you talking about "order level materials" (OLM)?

@Boomer635Do you want something from the members of this forum? Information? Advice? Or are you just telling us your company's story? If you want information or advice, please tell us what you kind of information or advice you want. Keep in mind that we cannot give you legal advice, but we can offer opinions.

@govt2310: I am not going to do any caselaw research for you. I suggest that you read Formation of Government Contracts, 4th ed., Ch. 1, Basic Principles of Federal Procurement, Sec. II., Contracting Powers. Also see FAR 1.602-1(b). Absent a specific example of the kind of thing you are talking about, that's the best I'm going to do for you.

Go to the GAO Red Book, 4th Ed., 2016 Rev. and read Ch. 2, "The Legal Framework." In order for an agency to hire a contractor to do something it must have congressional authorization and an appropriation. Sometimes the authorization is provided separately and sometimes it is included in the appropriation act.

Just brain-storming... Agency prepares a two-page RFP stating only its acquisition objectives, contract type, and evaluation factors. Invites offerors to prepare a proposal that includes (1) a complete proposed government contract, prepared in accordance with applicable rules in FAR and the agency FAR supplement and (2) a statement of the offeror's qualifications (capability, capacity, reliability). Agency allows three months for proposal preparation. Evaluation factors are, in order of importance: (1) legal acceptability of offer nonprice terms (based on statutory and regulatory requirements); (2) likelihood of achievement of government acquisition objectives; (3) price reasonableness; and (4) prospect for achieving mutual assent to contract terms. Agency selects top two offerors for discussions leading to negotiated agreement. Government selects and accepts the "most promising" negotiated agreement based on stated evaluation factors. What are the advantages of this process? Eliminates government time and effort to prepare a complete RFP (and amend it) in accordance with FAR Part 15. All the government needs to prepare is a two-page SOO. Allows offerors maximum freedom to propose technical solutions and technical and nontechnical contract terms; however, mandatory FAR and agency FAR supp. clauses must be included. Forces offerors to do, in addition to technical thinking, FAR and agency FAR supp. homework. (Contract to include a "Christian Doctrine clause.") Government develops a checklist of statutory and regulatory requirements while offerors prepare offers. Uses checklist to determine legal acceptability. Permits and facilitates in-depth one-on-one negotiations with top two contenders. I haven't thought this through completely. A one-time FAR deviation or two may be necessary. I haven't tried to identify any.

@FARtmanI just saw your post today. Haven't read it yet. Give me a few days.