Don Mansfield

I agree with @C Culham.

Jamaal, There's series of courses on Wondrium (used to be The Great Courses) called "Law School for Everyone". The course on Contracts has a 30-minute lecture on consideration. It's the best explanation (and critique) of consideration that I know of. https://www.wondrium.com/law-school-for-everyone-contracts

Doesn't FPDS-NG have a help desk or something?

How is that Elliot Branch's fault? He said "review". Can you post the memo?

What do you mean "acceptable"? Are you asking if the FAR prohibits it? If so, the FAR does not prohibit it.

Did you read what is stated directly below FAR 47.207 (before the subsections begin)?

I still remember 20+ years ago when I first read the Nash & Cibinic Report. My PCO shared an article about something we had been debating as a team (I think it had to do with clarifications v. discussions). I couldn't believe there were smart people writing thoughtfully about the seemingly mundane work we were doing. It brought my work to life. The trajectory of my career was forever changed. I wanted to be like those guys.

Why not compare the proposed rates to the rates they pay on similar contracts? I think there would be a higher correlation between those data and the actual cost of performance than proposed rates and the actual cost of performance. If your task is to determine the probable cost, you're ignoring a significant piece of the puzzle. In competitive cost-reimbursement service contracting, it's not uncommon for an offeror to attempt to get a cost advantage by proposing the use of lower-paid personnel without an intention of actually using those proposed personnel during performance. The Government typically determines what the proposed individual would probably get paid if they were to work on the proposed contract, but they don't consider the probability of the lower-paid personnel actually working on the contract. They assume the proposed personnel will actually work on the contract and conclude that the offeror is a cheaper alternative. Savvy offerors know this. Some may say this is a dishonest practice by offerors. An economist would probably say it's a rational response to incentives.

Did the offeror provide performance information on similar contracts that they are currently performing or recently performed?

I predict we see a protest by the end of the year.

This has been all cleared up by the FAR Councils. From today's Federal Register So we all know what this means now, right?

I would suspect that the offeror is trying to recover a nonrecurring cost within the first two years. Maybe they have a high expectation that you'll exercise Option Year 1, but are not sure about the others. There could be a good reason. I wouldn't make an assumption that it's a clerical error.

Good article on contract clarity: https://www.worldcc.com/Resources/Blogs-and-Journals/Contracting-Excellence-Journal/View/ArticleId/11251/If-we-wrote-our-contracts-for-ten-year-olds-would-our-eternal-search-for-contract-clarity-end

@Lionel Hutz, Was on hiatus for a while. I wanted to get back to you, but don't feel that you need to respond. No, the UN recognizes countries as LDCs. Under delegation from the President, the USTR designates countries as LDCs pursuant to the TAA 19 U.S.C. 2511(b)(4). Not all LDCs recognized by the UN have been designated as LDCs by the USTR. Your argument seems to be that the clause cannot implement the TAA because it implements the BAA. I don't follow that logic. Why can't the clause implement both? I think the clause implements the BAA and most of the statutes listed at FAR 25.400(a). That's why the clause usually needs to be revised each time the list at FAR 25.400(a) is revised or some action is taken pursuant to the authority in those laws (e.g., when the USTR designates a country as an LDC). I assume you are referring to the "domestic content" test for BAA and the "substantial transformation" test associated with TAA. The clause has both tests. The definition of domestic construction material uses the BAA domestic content test. The definitions of Caribbean Basin country construction material, Free Trade Agreement country construction material, least developed country construction material, and WTO GPA country construction material all use the "substantial transformation" test. In any case, I appreciate the discussion and apologize for taking so long to respond.

Although the time to submit comments has passed, I still wanted to answer your question. I like the idea of something that defines our field and the functions that it performs. It's helpful for people entering the field to have a schema to refer to. It's also helpful in designing and developing training products. I think the CMS does this at a high level, but things start to fall apart as you get in to the task and subtask descriptions. It seems like they've invented some words and terms that I have never heard used: "solicitation plan", "offeror-evaluation plan", "Offer/no-offer analysis", etc. They've also included some tasks that I don't see as part of contract management like "Evaluate requirement achievability". I think the CMS is probably trying to serve too many audiences. I would prefer a Federal CMS that uses official words and terms that are commonly used and understood in Federal contracting--something that organizes a body of knowledge that already exists.

That's not true. The US Trade Representative makes the designation subject to the approval of the Trade Policy Staff Committee. Here's an explanation from FAC 2005-69: The authority to make the designation comes from the TAA. Agree? Changes to such designations would require changes to the definition (3) of designated country (least developed country) in the clause at FAR 52.225-11, correct?

Now I'm back to not understanding you. The authority to make a least developed country designation comes from the TAA. Correct?

Ok, now I understand your position. Earlier, you wrote: Doesn't the authority to treat least developed country construction material as designated country construction material rely on TAA authority (specifically 19 U.S.C. 2511(b)(4))? So, if the TAA waiver authority were struck down, FAR 52.225-11 would then have to be changed?

That's not what he's got me thinking about. I'm trying to make sense of his claim that there's a difference between implementing trade agreements and the Trade Agreements Act. If he answers my question in the affirmative, then I'd understand him (not saying I would agree with him). If he answers in the negative, then I'm back to not understanding him. And I'm hoping he doesn't say that the clause implements the BAA again. I know that and that's not what I'm asking him.

@Lionel Hutz, BTW, don't think I'm cross-examining you. I've never heard the argument you are making and I'm trying to understand. Before this discussion, I would have said that FAR 52.225-11 implemented the Trade Agreements Act. Now I'm not sure.

@Matthew Fleharty, Thanks for the input. I owe you a response. I'm still thinking about it. Don

Hmm. Do you think that you can't modify the contract unless it contains the Changes clause?

Ok. Would you also say that FAR 52.225-11 implements one or more of the laws listed at FAR 25.400(a)(2)?

Was it published for comment in the Federal Register?

I don't care.