Vern Edwards

@Witty_UsernameThat depends on what you meant by "used." The nuclear warheads sitting on top of Minuteman and Trident missiles are items of supply, and they are not "in stock" in any meaningful sense of that phrase. In one sense, they are in use; but they have yet to be "used." The GAO's "rules" are not always crystal clear. See the definition of service contract at FAR 37.101. Sam101 is buying water in bottles, not time and effort. The water and the bottles are property, so it's a supply contract. Deliveries are just that, not a service, even if the supplier calls it a service.

DOD has cancelled the Joint Enterprise Defense Infrastructure (JEDI) acquisition. The RFP was issued on July 26, 2018, almost three years ago. The acquisition was strangled in its crib by bid protest litigation. DOD is starting over, and the IT industry is already lining up to file new bid protests. According to Bloomberg Law, "Key House lawmakers vowed to consider changes to the Pentagon’s arcane technology buying process after senior Defense Department officials canceled its flagship cloud computing program." What lessons learned should be learned by Congress, the Executive Branch, and DOD?

All of the posts in this thread, and all of the speculative responses that have followed from people who have not seen the solicitation and who have had no other source of information, have been based on a one-sided and often confusing description of one acquisition by one employee of one disappointed competitor. "There are eight million stories in the naked city. This has been one of them."

Okay, here is some feedback. Early in my career I was a member of a single military program office, headed by a colonel or general officer, with my office around the corner from the program manager's, and I handled only one or two acquisitions at a time. Communication and coordination were excellent, even when there was disagreement about acquisition strategy and negotiation tactics. Communication and coordination are largely (but not entirely) matters of organization. If contracting is centralized, not program-devoted, and if busy COs must support numerous program teams and their acquisitions, then communication and coordination will not be as good as it would be in an organization in which each CO is devoted to a single program team and manages only one or two acquisitions at a time. Donuts won't help. My impression is that life in many contracting offices today is chaotic, with each CO supporting several program teams located in various places, and managing several acquisitions. I'm glad I never had to work in such an office. If I had, I would not have stayed in contracting.

@SalusPrice reasonableness, a mandatory evaluation factor, is generally a matter of whether a price is too high. See Aviation Ground Equipment Corp., GAO B-417711.2, May 3, 2021: You seem to think the winner's price was too low to pay the wages that you think are necessary to ensure that the winner can hire quality people. That is a matter of price realism. Price realism is not a mandatory evaluation factor. See FAR 15.404-1(d)(3). Did the RFP say or otherwise clearly indicate that the agency would evaluate price realism? Did the RFP include FAR 52.222-46, Evaluation of Compensation for Professional Employees? If not, then they did not have to evaluate that factor. No one at Wifcon can fairly say what the agency should or should not have done without seeing the exact wording of the solicitation or request for task order proposals, which you have not provided, unless I missed it. Even then, the language would be difficult to interpret out of the context of the rest of the proposal preparation instructions. In my opinion, some of the speculations here have been unfounded. What you are learning is that source selection is a complex problem that involves many subtleties. You cannot understand it without considerable study and experience. Maybe your company should hire someone who knows the business.

@SalusSee FAR 15.506(e): If you asked the CO for the number of the winner's strengths and weaknesses you were seeking to make a point-by-point comparison. I believe in generous debriefings, but I would not have given you that information. The purpose of a debriefing is to tell you about your proposal, not to tell you about the proposals of other competitors. In any case, strength and weakness are merely categories of evaluation findings. They are not necessarily unitary measures of value. Thus, one offeror's single strength might be worth more than two or three strengths of another offeror. Suppose that the winner had four strengths and you had six? So what? Unless you know how an agency understood and used the concepts of strengths and weaknesses, comparing counts won't tell you much.

That is a loser's strategy. They could tell you to get lost, and there would be nothing you could do about it. Focus on writing better proposals.

There is no such thing as "agile services." Software development is a service. "Agile" is a method of doing software development. It is not, in and of itself, a service. I would like to see the agency's argument in support of the notion that all software development services employing agile methods are commercial services.

This is a simple problem of negotiating a price for an undefinitized FFP contractual agreement that is now physically complete. The supplier understandably wants to recover its costs of performance and a profit. Unless there is something that TNT1 has not told us, the supplier is entitled to a fair and reasonable price. The bottom line is that unless there is something he hasn't old us, the prime will probably have to pay the supplier its reasonable costs of performance, as described in FAR Subpart 31.2, and a reasonable profit as described in FAR 15.404-4. The government will then have to compensate the prime. In the opening post TNR1 asked: The answer to the first question is: No. The answer to the second question is: Yes. TNT1 subsequently asked: The answer to that is that the negotiator should tell the supplier that it will have to (1) submit documented evidence of the cost incurred in performance, (2) an explanation of why that cost is reasonable in terms of FAR 31.201-3, and (3) an explanation of why any proposed profit is reasonable in terms of FAR 15.404-4. Could the supplier say shove it? Yes, but then it wouldn't get the money it wants unless the prime is doling out charity. Which means that TNT1 should sign out of Wifcon and educate himself by reading the FAR subsections cited above. He/she should then read the appropriate chapters of the DOD Contract Pricing Reference Guides, Vol. 4, Section 6.4, Definitizing Undefinitized Contract Actions.

The only reason that I'm engaging you about this topic is because of something you said in response to a post from ji20874 on May 16. On that day Joel posted, and ji20874 posted this in response, to which you responded, And you considered the OP's client to be a dirtbag. ji20874 responded with this, in part: and went on to defend himself. After that you went into what is your typical rain dance of who-said-what-in-what-post—dissembling, denying, finger-pointing, and insisting, and writing crappy, sometimes incoherent sentences. And you did it all in the Beginner's Forum, of all places, where many readers don't know enough to know who is right and how to assess the evidence on each side. I respect your knowledge, experience, and passion for the work, but I was angered by what you said in those May 16 posts. And I don't respect you for going on and on and being doggedly insistent in the face of contrary evidence from several sources, and contrary arguments from several very experienced Wifcon members of long standing, that you are wrong to claim that CO's have independent authority under the Inspection of Services clause and pursuant to the FAR guiding principles to conduct employee interviews, and a duty to do so, which no statute, regulation, or contract clause expressly or impliedly empowers them to do except as authorized agents of the DOL. What you have asserted in these threads is significant departure from the plain language of statute and regulation and from long-standing practice. I do not accept anything you say about some "interpretation" you say you got from some DOL "inspector" in response to some letter which we have not seen. A gracious colleague would long since have said, simply, "In light of so much opposition from so many respected persons, perhaps I'm wrong. I'll think more about it and do some research," and let it go at that. You had a bad experience when you were with the Forest Service, and it has thrown you off your bearings. It was a mistake to post to What happened? You should have let it drop. You owe everyone an apology, but especially ji20874. As soon as you make it, I'll apologize for being irrascible and intemperate. I will still look forward to reading your posts about other matters.

So you don't know whether termination and cancellation are different. Thanks. You have no idea how helpful you're being.

May I interpret that to mean that you don't know whether termination and cancellation are different?

Is a cancellation different from a termination for default? If so, what's the difference? That's really a question, not a challenge. I have thought that the use of the word "cancellation" was just a quirk of the statute. If there is a difference I want to learn about it. Here's what 52.222-41 says, at paragraph (k): Here's 29 CFR 4.190(a): I think cancellation and termination are the same thing. Am I wrong?

Post your letter here, please.

Of course I read your assertive posts looking for flaws! Flaws are incomplete statements, mistatements, misinterpretations, and errors of fact or reasoning. We all have them, which means that I have them and so do you. I read all assertive posts for flaws and often point them out. If I post something that's flawed I hope and expect that someone will point it out to me, if for no other reason than to keep me straight. And you should hope and expect the same. That part of what's called... let's see... discussion. Now, after you respond to ji20874, as I know you're going to, please answer this question for me: You say, and I agree, that agencies have the authority to cancel contracts in response to a violation of the SCA. So if a CO acting on his or her own initiative tries to interview a contractor's employees in order to determine whether the contractor is paying the SCA specified wages and fringes, etc., but does not have a letter of authorization from the DOL, and if the contractor orders the CO not to interview its employees for that purpose and tells them not to answer the CO's questions, can the CO terminate the contract for default? Please remember that disputes about SCA compliance are not subject to the Contract Disputes Act and to FAR Subpart 33.2. Also, remember that the SCA authorizes only the DOL to investigate, hold hearings, make findings, and make decisions about SCA compliance. It's a yes or no question. You've had your talk with the DOL WH "investigator," so I assume you can answer with confidence. By the way, what's the name and number of that investigator? I presume that's public information and that you won't mind if I ask about this matter as you did. You can communicate that privately with me if you like. We need to get this sorted out once and for all.

So DOL has primary and final authority among agencies, but not sole authority. 29 CFR 4.101(b) says: And so your statement that "DOL has sole authority to interpret SCA law" was false. A federal court can overrule a DOL interpretation. Just as I thought. You know, it would have been okay for you to just say that your statement was incomplete. We all make such statements on occasion. All the bull trying to turn it around on me wasn't necessary.

Please cite that regulation. I say that the courts can interpret the SCA and that they have the last word. Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which was recently modified by Kisor v. Wilkie, 588 U.S. ___ (2019), the courts defer to the interpretations of statutes by the agencies charged with enforcing them, but the agencies do not have the last word. The SCA gave the DOL authority to issue regulations and enforce the law. 41 USC 6506 says DOL can make, amend and rescind regulations and make investigations and findings. 41 USC 6507 says DOL can hold hearings and make decisions. Nowhere does the SCA say that only DOL can interpret the SCA. They must do so, but their interpretations are subject to judicial review. So, per what regulation does DOL have sole authority to interpret the SCA? Or do you mean that DOL is the only federal agency with authority to conduct investigations, hold hearings, and make SCA enforcement decisions, but that it can call on agencies to assist?

What we have here is a disappointed offeror who thinks his company maybe should have gotten a higher rating than it did. Uhhh, okay. Absent an equation of some kind, the determination of whether something is merely acceptable, a strength, or a significant strength is purely judgmental. The only way I can think of to successfully contest such a judgment is to show that the agency was inconsistent in its application of those ratings between or among various offerors.

@Salus Some thoughts: I don't know that a proposal consultant would have made a difference, but it might have helped. You might have gotten that sought-after "significant strength" simply through better presentation of the same material. That's mainly what the consultants are about. The government's various definitions of things like "strength" and "significant strength" are exceedingly vague, and likely deliberately so. I wouldn't rely on them as the basis for any kind of challenge. The best thing you could hope for in a protest is that your attorneys find evidence of disparate treatment in that regard. As for feedback on how the proposal could have been improved, if by that you mean what you could have proposed that would have resulted in a significant strength, the agency could reasonably say that they are not in the business of proposing solutions but of seeking them, and that if they had had a better solution in mind they would have specified it for everyone to respond to. The same with a "significant strength." They could say that it's like art—they might know it when they see it, but can't describe it in advance. The agency can't tell you much about what the other offerors proposed, since that might violate laws against disclosure of proprietary information. You could, of course, file a protest in order to obtain more information. But that is a costly way to research the market. Your chances of winning, all things considered, are about 1 in 5. Better luck next time, but better not to trust to luck, fairness, genius, or generosity. Take a close look at the presentation you made in your proposal.

@C Culham The big debate was mainly about your assertions concerning CO interviews of contractor employees. I don't find your "condensed version" of a telephone conversation with a WH "investigator" to be persuasive of anything. It certainly doesn't "validate" your assertions. I don't buy that the issues about CO interviews are a "gray area." You said that COs may and must conduct such interviews. I say that a CO is not lawfully or contractually empowered to conduct SCA enforcement interviews of contractor employees except as an authorized representative of the DOL. Nothing in DOL's SCA regulations or the SCA contract clause says anything about interviews by COs, and silence in that regard is neither authorization nor assent. We debated this for days without resolution. I see no reason for further discussion without new information. I do appreciate your effort to seek an interpretation from DOL WH. I'm not surprised that you didn't get one in writing.

@here_2_help What would happen is that a prime would request an adjustment from the government before it settled with its subs because it wouldn't want to agree to pay a sub until it knew how much it was going to get from the government. It wasn't a matter of the government "green-lighting" a settlement.

@learningcurveThink. If you suspended your general contractor, and your general contractor had to suspend or terminate a sub, then the terms of the contract between the general contractor and the sub will determine what if any settlement the general must make with that sub. If the general incurs a liability to a sub that was caused by the action it took in response to its suspension, it will want to pass that liability on to the government. Okay? Got that? The general will either settle with the sub before going to the government or it must estimate what settlement it will have to make in order to request compensation from the government. Whether the amount the general seeks from the government is allowable, in accordance with FAR 31.201-2, and therefore compensable, will be a matter for contracting officer consideration and determination. Got that? Conceptually, this is very very simple contract law. The details, however, are likely to be complicated. My suggestion is that you do not come here for help with the details. Instead, talk to someone in your organization who knows how to handle this sort of thing.

They will likely be entitled to compensation if their work was affected by the suspension. But that would be a matter between the prime and its subs.

@Salus Did you use a professional proposal management consultant?

9 WHOA! That is not good advice! The problems could be due largely or entirely to changes in government requirements or behavior or to market conditions---things beyond the contractor's control.