Vern Edwards

@here_2_help The problem with all such clauses is that they are an attempt to turn a process of thoughtful contract writing into a process of mechanical contract assembly. Instead of crafting a contract, you cobble one. It's not a method that thinking people would use.

@ji20874 Easy does it, ji. I didn't say you are wrong about anything. I quoted directly from the GAO, which says "must," and I asked if I was interpreting what it said wrongly. That's all. I am not trying to trip you up. Well, the problem is that the GAO said "must." You say not must. I'm just reporting the fact. You're shooting at the courier. Every contract is "needed." How can we get to the bottom of this and help readers understand the rule, if there is a rule?

Thanks, Weno2.

@Weno2Is your agency posting a cost estimate or a budget? If an estimate, is the estimate based on completed drawings and specifications? If an estimate, do you post the details or just the bottom line?

@ji20874 See Jade Excavation, Inc., B-419515, March 18, 2021: Emphasis added. I read that as saying that the agency must delay the award for a reasonable period of time to allow the bidder to do a SAM registration. Am I reading anything wrongly? P.S. SAM is mentioned in 35 GAO decisions. Most of the mentions are mere references. I am still reading the decisions that involve lack of SAM registration and defective SAM registrations. What I have seen so far has been confusing.

The answer depends in part on why you want to extend the period of performance Why do you want to extend the period of performance?

Yes, I did. 😁 And I'll pay very close attention to you from now on. 😈

🤯

That not everybody worries about precise uses of words defined in FAR when used out of context. That if the GAO can use "ineligible" the way they did, so can I. So can ji20874. So can you. So can anybody. And it won't make a damned bit of difference, legally or otherwise. Here's a usage quoted by the Court of Federal Claims in Ranger American of Puerto Rico, Inc. v. U.S., --- Fed.Cl. --- (May 14, 2021), in Footnote 14. The court rejected the protest. And here's one from PAE Applied Technologies, LLC, --- Fed.Cl. --- (April 14, 2021): The definition of "ineligible" in FAR 2.101 merely says what the word means when found in the FAR. It does not dictate other uses in other contexts.

@Don Mansfield From FAR 2.101: See Master Pavement Line Corporation, GAO B-419111, Dec. 16, 2020, Footnote 5: Emphasis added. Is that usage consistent with FAR 2.101?

@Constricting OfficerThe questions in this case are, first, what does the task order say? Then, what do you want it to say? Then, is there a difference? If there is a difference, and if changing the order to add the betterment work would cause an increase or decrease "in the cost of performance"—that's in the "cost," not "the price" or "the proposed price"—then the contractor would be entitled to a price adjustment, regardless of the costs already included in the price. That's Equitable Adjustment 101. Now, if you can persuade a court or board that the task order already requires performance of the betterment work, even though it does not specify that work, because the contractor included the cost of the work in its proposed price, then you could have a different outcome. But if the contractor has a good lawyer you would have to deal with the argument that the parol evidence rule precludes consideration of the cost proposal. That's my take.

That's just what I'd expect to hear from a CO. Hopefully, you would be able to persuade a court or board.

Maybe they were award of the GAO decisions and knew that they did not have to be registered at the time of bid submission or bid opening.

@C Culham Emphasis added. I would expect an order to be issued under DD Form 1155, Order for Supplies or Services, or OF347, Order for Supplies or Services, not SF1442. But who knows what agencies are doing these days?

@Fed101This is a problem in contract interpretation. One of the first questions to be asked is whether the task order document is supposed to be an "integrated" agreement. In other words, is it supposed to state the complete agreement between the parties. If the task order is an integrated agreement, and if it makes no mention of the betterment, then, in the event of a dispute, a board or court might invoke the parol evidence rule and refuse to consider the contents of the price proposal. The facts that (1) the proposal was not incorporated into the order and (2) that the requiring activity asked for the betterment to be added to the task order after it was awarded, lend credence to the argument that the proposal may not be used as evidence that the award included the betterment, and that the contractor is not obligated to perform it without an equitable adjustment to the price. But who knows? My analysis is half-baked, but it's the best I can do with the facts at hand. An attorney might be able to make an effective counter-argument. You should talk to yours.

Published in June 1995.

Whoever decided to establish a category of "emerging large businesses" and put the above in a solicitation should have their head examined. In March 2020 NIH was telling us that masks were worthless. Now they're creating their own socio-economic category. https://washingtontechnology.com/blogs/editors-notebook/2021/05/ciosp4-analysis.aspx Whatever happened to the gospel of Keep It Simple. I hate the GWAC entrepreneurs. The protest attorneys are rolling up their sleeves.

@bob7947No, not in litigation, but it has come up in government contracting. See, e.g., Professional Management Consulting Services, LLC, ASBCA No. 61861, 20-1 BCA 37638, June 25, 2020. You heard about it I'm sure in connection with Two Rivers Corporate Centre, LP, ---Fed.Cl.---, June 7, 2021. See Black's Law Dictionary: Cibinic and Nash discuss the principle without using the term in Formation of Government Contracts, 4th ed., pp.250-252, under the heading "Nonacceptance Responses to Offers." They cite the Restatement ,Second, Contracts § 58: According to Black's Law Dictionary the term "mirror image rule" dates only to 1972.

See FAR 1.108(a): For several years now, I have told students to include a Section H clause like the following in their contracts. "Definitions. See the clause at 52.202-1, Definitions (June 2020). Ordinary English words and terms in this contract—excluding legal terms, technical terms, and terms of art, if not defined in the Federal Acquisition Regulation (FAR) or otherwise in this contract, or if defined in FAR or this contract in only a specific context, shall be interpreted as defined in _______________________." Fill in the blank with your preferred English dictionary. My current personal favorite is the American Heritage Dictionary of the English Language, 5th ed. Courts tend to refer to Webster's Third or to collegiate dictionaries when it comes to ordinary words. They will often refer to more than one dictionary. But they will refer to a dictionary cited in the contract for that purpose. They also refer to specialty ("technical") dictionaries.

Garner's Dictionary of Legal Usage, 3d ed., has entries for "so," "so as," "so far as," "so help me God," "so long as," and "so... so as." The entry on "so" (adv. and conj.) in the Oxford English Dictionary 2d ed. prints out to 12 pages! Who knew?

@WifWafYou do not understand OCIs. No organizational conflict of interest is created by asking each offeror responding to a solicitation to propose a statement of the work they promise to perform, no more than asking them to describe their proposed approach, proposed plan, proposed process, proposed procedure, proposed design, or proposed product. No OCI. None. Please do not come to this thread to learn about OCIs. If you want to discuss OCIs, please start your own thread in the Beginners Forum. Before you do, read up on OCIs. You mentioned some NASA material. NASA has a guide. I don't think you've read it. If you did, I don't think you understood it. Try again. Start with Chapter 1. https://www.hq.nasa.gov/office/procurement/regs/guides/OCI_Guide.pdf

No it's not! If I can understand it so can you.

@C CulhamWell, the Forum has a record of what we all have said in the two threads. So if you do come back to this topic in the future, we can all check to see what we said before. I just checked, printed out the thread, and am satisfied. Best.

@C Culham Thanks, Carl. One last thought: "contract performance monitoring by a CO with regard to SCA" is a little vague. The issues (disputes) in this and in the prior thread arose from your ideas that (1) COs should, at their own initiative, interview contractor employees to verify that they are being paid the proper wages and fringe benefits, and (2) that a CO's authority to do that was provided by the inspection of services clause, FAR 52.246-4, independent of DOL authorization. To the best of my recollection, those were the primary issues about which there have been disagreements. I do not believe that COs have any authority to interview contractor employees with respect to the SCA except as authorized by the DOL. I don't recall any disagreement about "monitoring," in the sense of complying with FAR 22.1018, 22.1019, 22.1020, and other such matters. The main issues have been employee interviews and CO authority under the inspection clause to enforce the SCA. While I am disappointed that you have decided to drop the issues without addressing the points that I have made, I respect your decision to proceed no further, and I do not attribute it to any concession on your part. Best to you.

This is for all those interested in the interpretation of statutes, regulations, and contracts. What does the word "so" mean? See 18 USC 1030, Fraud and related activity in connection with computers, which reads in part as follows: Emphasis added. Note, in the boldfaced passage, the word "so" in red. Violators can be fined or imprisoned for up to 10 years. A cop named Van Buren used his access to a vehicle license data base to get information for someone in return for $5,000, a violation of police department policy. It was an FBI sting operation. Van Buren was convicted and sentenced to 18 months. He appealed, based on interpretation of the statute. The 11th Circuit Court of Appeals ruled against him in 2019. He appealed to the Supreme Court. On June 3, 2021, the Supreme Court issued a 20-page 6-3 decision. Much of the decision is devoted to the significance of the word "so." The decision was written by Justice Barrett. Justice Thomas wrote a 13-page dissenting decision. The decision reversed a 2019 decision by the 11th Circuit. The decision is Van Buren v. United States, 593 U.S. ____ (2021), and it's available at the Court's website. Must reading for anyone interested in legal interpretation.