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Vern Edwards

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Everything posted by Vern Edwards

  1. @MAY-D-FAR-B-WIT-UOne day, probably when the Four Horsemen of the Apocalypse show up on the horizon, you people in the field will learn to keep it simple. You're well-intentioned, but incorrigible complexity fanatics. A threat to national security. Source selection is child's play until it's in the hands of the "professionals." I'm serious. Deadly serious.
  2. B-417984, B-186873, B-233029, B-238496, B-249497. You're going to be disappointed. They don't say much other than that the agency thought profit was too high. Literally one or two sentences, at most. There is no detailed analysis or discussion beyond that. There have been no protests sustained on that basis. Waste of time. On the other hand, there have been 142 protest decisions involving FPI contracts since 1981. I have no idea what they have been about. No, I'm not going to send you a list. I'm too busy. Get your lawyer to download the list for you from LEXIS or Westlaw, then use the B-numbers to Google them. And I agree with ji20874 that you should look at the target price (or ceiling price) and forget about the profit. Fixed-price incentive contracts are the most studied of all contract types, and they have never, ever, been shown to work as advertised. They are needless complications. They are a public nuisance, and should be banned. If I were running a contracting shop today I would absolutely prohibit their use. If I were your boss and if the RFP were still on the street I would order you to amend it and change the pricing arrangement to firm-fixed-price or cost-plus-fixed-fee---anything but FPI. And be glad you're not doing a price realism analysis. Price realism is a protest swamp. Price realism for FPI(F) is a grave.
  3. What do you mean by "price ceiling"? Are you talking about the "maximum" mentioned in FAR 52.216-22(b)?
  4. @joel hoffman Joel, I'm not sure what you want me to clarify. Please explain. If you're talking about IDIQ contracts and the issuance of orders, once the government has bought the minimum the issuance of any further orders is voluntary. Orders are exercises of options to buy additional quantities. There are many reasons why the government might choose not to issue further orders to an IDIQ contractor: no requirement, poor past performance, suspension or debarment, some other disqualification, or some other reason. The contractor has no right to further orders. To me the rules in FAR Subpart 4.21 seem very straightforward. I can understand why some contractors would not like them, but the government is not your ordinary customer and government contractors must be prepared for such things. None of this seems as shocking as an unexpected termination for convenience, but they are not at all uncommon. Nor is this the first time COs have been instructed to negotiate new clauses into existing contracts. Why the strong reactions from some people? The issues seem to be mere practical matters. I stand by my earlier response to the OP: 1. change the contractor's mind, or 2. change your mind and seek a waiver, or 3. say goodbye to the contractor when the current contract ends.
  5. @C Culham Yes. When I used the phrase "exercise the option" I was referring to the action of the party who has the right of exercise. In a government contract, that's usually the government, not the contractor. So if the government asks for a change to the terms of the contract as a condition of exercising its option, and if the contractor refuses, the government can still exercise the option as it is, and the contractor cannot decline.
  6. @Neil Roberts I didn't mean that the CRS report is malarkey. I meant that the following assertion is malarkey: I sincerely apologize for "malarkey." I should just have said that I disagree. Here's why: The law conditions the creation of new contractual relations and the voluntary extension of current contractual relations upon assent to certain terms. The relevant passage says: FAR 4.2104 states: According to the FAR councils, the law and the regulation are designed to protect citizen privacy and national security. What I understand the statute and regulation to do is prohibit new and extended voluntary relations. New contracts and the exercise of options are voluntary undertakings. With respect to options, any party to a contract is free to seek changes to the terms of an option and to decline to exercise the option if the other party will not agree. A contractor has no contractual right to expect a contract extension that is not contractually required, and neither the statute nor the regulation prohibits a CO from agreeing to an extension to which a contractor is entitled, such as an equitable time adjustment after a contract change or a time extension as compensation for a government breach, such as late GFP. Neither the statute nor the implementing regulation requires existing contractors to accept the new clause. They don't require the termination of a contract in case of refusal. Acceptance is entirely voluntary. Moreover, the statute provides for waivers. I cannot see how the law or the regulation interferes with existing contractual rights. I don't see any breach of contract. I don't see any bad faith or unfair dealing. Do you, Neil? But you might change my mind by making an argument instead of just dropping a 20-page maybe-this-maybe-that report in here and alluding to a vague possibility without explanation. If you think the CRS report points the way to particular possibilities in this matter with respect to contract interference, why don't you tell us about it? I'm eager to read what you have to say.
  7. Malarkey. The CRS report is irrelevant. There is no "taking" issue. It is well established that a contractor has no right to the exercise of an option. See, e.g., Puget Sound Environmental Corp., ASBCA 58828, 16-1 BCA ΒΆ 56465: Does anyone think that Congress acted in bad faith when it enacted the law or that the FAR Councils act in bad faith when they promulgated the implementing regulations? This is government contracting. Deal with it.
  8. Neither do I, but there must be something, because agencies keep coming up with them.
  9. Ten pages in each of 1,000 expected responses comes to 10,000 pages to be read by the evaluation team. Why don't they just give contracts to all of the 1,000 and let the ordering agencies decide which ones they want to do business with? Honestly, it make me very sad to know that I won't live long enough to see my country have an intelligent contracting process.
  10. The FAR does not impose a duty on the part of contractors to accept the clause. It imposes a duty on contracting officers to either (1) persuade contractors to accept the clause or (2) refrain from exercising an option to extend. The common law of contracts imposes the requirement for consideration.
  11. Let's sort out the issue of consideration. If the parties to an executory contract are going to modify it in a way that is not already provided for by a contract clause, such as the Changes clause, then consideration is required by the common law of contracts. See Keeter Trading Co., Inc. v. U.S., 85 Fed. Cl. 613 (2009): The parties would have to agree on what would constitute adequate consideration.
  12. @Retreadfed I don't think so. FAR says to include the clause in "all" contracts. I think that means what it says, regardless of the date of award. I'm open to being wrong about that, but in light of statute and regulation I need some authoritative reference. As has already been pointed out, FAR 1.108(d) says, "Unless otherwise specified..."
  13. The OP asked if any of us has faced a situation similar to the one that he's facing. The closest that I've come is a situation in which a sole source refused to provide certified cost or pricing data. In that case, we got a a waiver. Anybody else?
  14. There is no mention of overlapping periods of performance anywhere in the FAR System. The word "overlapping" does not appear in the FAR. It appears once in the Department of Agriculture FAR Supplement in the phrase "overlapping provisions" and once on the Agency for International Develop FAR supplement in the phrase "overlapping decision phases." The word "concurrent" appears much more frequently, but I'm not going to devote any more time to an inquiry such as the one that initiated this thread, in which the OP provided no background information. Nor will I devote time to searching GAO decisions.
  15. I wonder how many Forum readers know the history of the "technical proposal" concept in Government source selection.
  16. Retread, So if the contract is for commercial items the clause may already be in the contract. Okay, got it. And if not, then the clause must be added. Right? Then you said: I don't understand what you mean. What is the implication?
  17. Why are they bothering with a ten page "technical" proposal? It's a waste of time. Are they hiring essay writers? And Phase Two should be Phase One. How are they going to evaluate price?
  18. @C Culham I apologize for being thick about this, but what are you saying?
  19. @Retreadfed See 85 Fed. Reg. 42665, July 14, 2020, Interim Rule, Federal Acquisition Regulation: Prohibition on Contracting With Entities Using Certain Telecommunications and Video Surveillance Services or Equipment, at 42673:
  20. @Retreadfed Retread, I don't think it matters, because FAR 4.2105(b) says: It does not exclude contracts for commercial items. And contracts for commercial items are not among the exceptions in FAR 4.2102(b).
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