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Vern Edwards

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Everything posted by Vern Edwards

  1. @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.
  2. @Milcon Why do you call that cost reimbursement? It sounds to me like you effectively negotiate a pre-approved travel cost before each trip and agree to pay the lesser of the pre-approved amount or the actual cost of the trip. I wouldn't consider that a cost-reimbursement line item in the FAR sense. I must be missing something. What is it?
  3. Thanks, Milcon. Interesting. If indirect costs are part of travel costs, some of those costs may not be known until months after completion of the task and the deobligation of funds. You could get a surprise bill for additional costs, unless the CO included some other term in the contract that limits the government's cost liability.
  4. @joel hoffman So what? You are hiring a contractor to do work. In doing that work the contractor must travel. You could estimate the number and duration of trips and include the cost in the FFP. But you have chosen instead to reimburse the contractor for the cost of travel. Are you going to limit the government's cost liability? Are you going to limit the costs to those that are allowable under FAR 31.2? Are you going to require proof of cost incurrence? I admit that the travel cost CLIN, which is wildly popular these days, raises questions about clause inclusion. But a CO's job is to protect the interests of their client, the government, and how do you implement the government's policies applicable to cost-reimbursement without using appropriate clauses? On a large enough project, travel costs could run into the hundreds of thousands of dollars, even a million or more.
  5. @joel hoffman I know that agencies use CR travel CLINs without applying the applicable clauses, but such use does not justify the practice.
  6. @joel hoffman You question? Why? A contract with both an FFP CLIN and a CR CLIN is an example of a combination of types," FAR 16.102(b). If you put a CR CLIN in a contract, whether for travel or spacecraft development, you must apply the clauses applicable to that contract type to that CLIN. If you don't do that, you may find yourself being invoiced for unallowable costs, and you may not have established a limit to the government's cost liability, which could create Anti-deficiency Act issues. Think about it. To me, that is Contracting 101. I was taught it more than 44 years ago, when I was a GS-05, and I have no reason to think it is not as valid now as it was then. It is the kind of knowledge that a professional must have in order to protect the government's interests, but for which there is no express statement in FAR. If FAR had to contain an express statement of every logical consequence of stated rules, it would be 10,000 pages long, instead of 1,990.
  7. @MilconQuestion: Does the contract include, applicable to the cost-reimbursement travel CLIN, the clause at FAR 52.216-7, Allowable Cost and Payment, and the clause at 52.232-20, Limitation of Cost?
  8. @ji20874 You said: Here is 8.004 in its entirety: Are you saying that 8.004 directs agencies to consider ordering from a MATOC before considering an open market purchase? I don't see shall or must anywhere in 8.004. I don't even see should. I do see the word "encouraged." I don't read 8.004 as directing agencies to do anything.
  9. @Neil Roberts Why have you made that point? It seems to come out of nowhere. Have you read something here that suggests that the CO should unilaterally reduce the estimated cost in response to the contractor's revised cost estimate? Why would a CO do that? Why would it be necessary to do so if the contractor has notified the contracting officer that its estimate has changed? Why wouldn't the contractor readily agree to a change by supplemental agreement? A revised estimated cost based on an anticipated cost underrun would not entitle the government to a fee reduction unless the revised estimate is based on a contract change. And who but someone who does not understand cost-reimbursement contracting would worry because a reduction in the cost estimate would result in an arithmetical increase in the rate of fee? Are we supposed to refrain from doing the right thing in order to avoid worrying the clueless?
  10. @ji20874I didn't think I had been unprofessional. And I didn't think you were one of those professionals who believe that there must be an express rule in FAR requiring that a CO do what is obviously necessary in order to protect the government's interests under either FAR 52.232-20 or 52.232-22. Having signed and worked more than my share of cost-reimbursement contracts, in more than one agency, the notion of deobligating funds on a fully or incrementally funded cost-reimbursement contract while the work is still ongoing without also reducing the associated estimated cost or total funds allotted strikes me as not just unprofessional, but professionally incompetent. Do we really need a rule for everything?
  11. So you agree that there are cases in which a cost underrun requires a reduction in the estimated cost. Thanks.
  12. @ji20874 If the contractor reports a significant underrun, and you deobligate funds to use them elsewhere but do not change estimated cost, what happens to future applications of 52.232-20, under which notifications and limitations on government liability are tied to estimated costs?
  13. @here_2_help Recommended reading: The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy (2016). Whenever we want to free markets from government bureaucracy, the government ends up writing new rules to ensure that markets are free, and creates new bureaucracies and procedures to enforce the new rules. Multiple-award contracting was supposed to make contracting easier and quicker, but it has gotten more difficult and time-consuming with each passing year and each new "innovation."
  14. @ji20874 I think that when FASA created today's multiple-award contracting regime in 1994, the policy makers did not anticipate all of the issues that would arise under the new regime. For instance, the Rule of Two for acquisitions estimated to exceed the simplified acquisition threshold, FAR 19.502-2(b), which was first published in 1979, applies to "any acquisition," without apparent exception. A decision to place an order against an agency MAC or a GWAC is a step in an acquisition. That is why the Tolliver and ITility protests were filed. They raise the issue of applying the Rule of Two to an acquisition before a decision is made as to the method of acquisition. They do not raise the issue of whether to set an order aside under a MAC. An issue can lie latent for many years before some contractor or attorney in some protest or claim spots it and raises it.
  15. @ji20874That is not true in all cases. It is vastly overstated. You should clarify, especially since this is a "For Beginners Only" thread.
  16. @ji20874Thanks for the response. Just so you know, Delex, GAO B-400403, 2008 CPD ยง 181, addressed the question of whether the Rule of Two applied to fair opportunities under MATOCs. I think that's the question that 15 USC 644(r)(2) was written to answer, and I think the answer is no. But Delex did not address the question of whether the Rule of Two had to be applied before making the decision whether to use a MATOC, and I don't think 15 USC 644(r) does, either. I understand why people "support" the ITility decision. You're not the first person to tell me that. But the question that concerns me is whether GAO's decision correctly applies 15 USC 644(r) to the issue that was at hand. A side note: This is a discussion forum, and as a member, I am not willing to defer discussion of legal issues to attorneys. I'm not an attorney, but the Court of Federal Claims has referred to my writings on more than one occasion, as recently as March 2020 in fact. Educated laypersons can develop and express legal opinions (as opposed to advice) in forums like this; they just can't practice law. And I think practioners should work to become educated laypersons. I'd like to see more such discussion at Wifcon, especially with practitioners like you, instead of the querulous answering of indecipherable hit-and-run "questions." But I respect your position and your post. If you don't want to discuss it, you don't want to discuss it. I get it. As for fair opportunity ordering being "quicker and easier," it mostly is not. That ship sailed long ago. Agencies have turned the fair opportunity process into a FAR Part 15 process. They're even incorporating FAR 52.215-1 into their requests for task order proposals. I talked about that with a GSA official for an hour yesterday, and he was in near despair about it. The simplicity gene is rare among Federal acquisition practitioners. The FASA multiple-award policies have been a disaster in many ways.
  17. @ji20874Do you see any incongruity between GAO's description of the protest and the basis for the decision they made? GAO seems to think that ITility protested the fact that the agency did not set aside the task order under the Alliant2 contract. See the first sentence of the decision. Why would ITility do that? They are not a party to the Alliant 2 contract. A set-aside under Alliant 2 would do them no good. It seems to me that ITility was protesting the agency's decision to use the Alliant 2 contract. GAO based its decision on its interpretation of 15 USC 644(r). But if ITility was protesting the use of Alliant 2, not the failure of the agency to set aside the task order under Alliant 2, then what bearing did 15 U.S.C. 644(r) have on the protest?
  18. Not really. I believe they knew darned well from day one that they were going to proceed under the GWAC. Do you think the GAO got it right?
  19. @formerfed The court said that the agency did not formally cancel the GSA FSS solicitations as required by 10 USC 2305(b)(2) and did not formally withdraw the FSS set-asides as required by FAR 19.502-9. The court said that if it has, in fact, done those things it order the Army to reinstate the solicitations. The court told that Army that it could not proceed under the MATOC unless it does those two things anew.
  20. From Government Contract Changes, by Nash and Feldman, 4:5: "A dramatic increase (or decrease) in the contract price also should be an indicator of a cardinal change. Indeed, this issue is frequently a key component for whether the change is out of scope, although it is not a conclusive consideration." Thus, while scope may involve more than price or total price, a change in price may well be a factor in determining whether there has been a change in scope. And thus, your assertions that "Scope is not determine[d] on math for form." and "Or in other words it has nothing to do with scope." are not correct. FPDS is not a "rule." A CO can determine a total contract or order "value" for purposes of FPDS reporting without stating such a value in a contract or order. And as far as I know nothing in the FPDS-NG User Manual requires that a contracting officer state a "total value" in a contract or an order. If you know of such a requirement, please cite it specifically. And where in FAR Subpart 4.10 does it state that a contract or order must state a total "value"? While every CLIN has a total, I've never heard of establishing a CLIN for something called "total value" or "amount." Did I miss it in FAR Subpart 4.10? COs account for obligations at the level of CLINs, not "total value." Well, it seems to me that if the purpose of stating "total task order value" is to account for even just some component of scope, it makes the policy shop's stance a reasonable one. Note again the Nash and Feldman reference, above. Look, Carl, I also think the policy shop is wrong. But I think it's wrong because "total value" is obviously the sum of the individual values that go into the total, which I presume are CLIN values. And, therefore, I think that when you change any CLIN amount common sense dictates that you should change the total amount. I think my belief is easily validated by looking at the forms used for orders, which I think are primarily DD Form 1155 and Optional Form 347. I don't think the policy shop's argument relating a stated "total task order value" to scope makes much sense, not because total value has no bearing on scope, as you so vehemently assert, but because if a scope-of-the-order issue arises the value of the order will be determined on more evidence than any stated value or amount on a form or elsewhere on an order document. Now, Carl, I can tell that you're upset about this thread (typos). So I don't want to provoke you further. I'll leave that to Joel. ๐Ÿ˜Œ Easy does it, buckaroo. None of this matters. I've learned that.
  21. Suppose that the government has a single-award IDIQ contract for services with a five-year ordering period and that the contractor is a large business. Suppose further that the minimum value has already been purchased and that the maximum value has not yet been reached. Now suppose that at the beginning of the fourth year of the ordering period the government has a new requirement for services that is within the scope of that contract and that is expected to exceed the simplified acquisition threshold, but that would not cause the IDIQ maximum to be exceeded. Three questions: Would the issuance of an order against the IDIQ contract constitute an "acquisition" as defined by FAR 2.101? Must the government make a "rule of two" determination in accordance with FAR 19.502-2(b) before issuing an order against that IDIQ contract? If your answer to Question 2 is yes, would your answer to be different if the IDIQ contract were with a small business contractor?
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