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Don Mansfield

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Everything posted by Don Mansfield

  1. If the Government complied with the Paperwork Reduction Act (PRA) when drafting solicitations, I think there would be a reduction in bid and proposal costs.
  2. Delany, ji gave you good advice: I would add that the same goes for any responsibility-type criteria at FAR 9.104-1. You shouldn't evaluate any of those on a pass/fail basis to determine technical acceptability when using LPTA.
  3. Are you claiming that the CO would be prohibited from deviating from the cost principles, even if they complied with FAR 1.602-1(b)?
  4. Yes. For example, FAR 46.407(f) permits this: I don't understand what the consideration would be in this scenario. In the absence of some specific limitation on the contracting officer's authority in these circumstances, then yes. They would still have to comply with FAR 1.602-1(b) before exercising their authority. BTW, FAR 1.102(d) places the burden on the naysayer when it comes to the exercise of authority. As such, please cite the law, executive order, or regulation that would prohibit the types of modifications that you described.
  5. Take ji's example from earlier in the thread: The Government has given up its right to the delivery of 100 white items delivered in 60 days in exchange for 33 white, 33 red and 34 blue delivered in 45 days.
  6. Yes, provided they obtain consideration.
  7. @Lionel Hutz, Great explanation. Thanks.
  8. Trivia contest, arm wrestling, staring contest, to name a few.
  9. Assuming that whoever you award to will meet the responsibility standard at FAR 9.104-1(c), what's the point of making past performance "part of the TA"?
  10. @Lionel Hutz, I agree with almost everything that you wrote and you wrote very well. However, I don't agree that all bilateral modifications must have consideration. Some bilateral modifications are negotiated adjustments pursuant to contract terms--the consideration is already in the original deal. For example, the contractor experiences an excusable delay and the parties negotiate a schedule extension. The CO need not seek consideration for the schedule extension. For these types of bilateral modifications, I think there is value in citing the clause providing for the adjustment because the CO wouldn't otherwise have the authority to modify the contract without consideration. It tells the reviewing/approving official, who should be looking for the consideration, why consideration isn't necessary. For bilateral modifications that require consideration, I see no value in citing anything for the reasons you explained. I think the request for authority in block 13C has led to some of the dogmatic responses we've seen in this thread (e.g., "mutual agreement of the parties", "FAR 52.212-4(c)", etc.).
  11. I don't see the "automatically exempt" part in the clause.
  12. I'm not telling readers not to use agreement of the parties, I just don't see that as an "authority" as that word is used in block 13 of the SF 30. It seems like a superfluous description of the modification. It's of no use. I would say the same of "FAR 1.602-1". The only value I can see in providing a citation in block 13C is if there were no consideration. Normally, the contracting officer would have to ensure that there was consideration in a bilateral modification (i.e., the CO does not generally have the "authority" to bilaterally modify the contract without obtaining consideration). If, however, the modification was a negotiated adjustment pursuant to a contract clause that only made changes in one party's favor, then citing the clause communicates that the contracting officer is not required to obtain consideration. The modification in your scenario is legal, honorable, and brings joy. I would put "Not applicable--consideration required" in block 13C.
  13. What many folks don't understand is that incorporating a proposal into the contract doesn't necessarily bind the contractor to anything. A typical technical/management proposal doesn't contain promissory language--it contains descriptions of the intended approach, plans, expectations, etc. Such statements are not binding promises--they are illusory promises. The contractor would only be bound to promises made in the technical/management proposal.
  14. Why can't you select block 13C and 13E? Probably right. If people like @General.Zhukov do it for that reason, then I don't have a problem. I'm more concerned about the newbies who are being taught that a clause must be cited for a bilateral modification.
  15. Wouldn't the two signatures on the modification and the check in block 13C make that obvious? True, but that doesn't answer my question. Why do people think that it's an "authority"? 1. Why would I have to cite an authority at all? 2. I think contracting officers who cite FAR 43.103(a) or (b) as an "authority" do so because they are either not thinking about what they are doing or are placating somebody. 3. I think contracting officers who cite "mutual agreement of the parties" as an "authority" do so because they are either not thinking about what they are doing or are placating somebody.
  16. Why do people think that FAR 52.212-4(c) is an "authority" to execute a bilateral contract modification? Do people think that if that paragraph were not in the contract, the contracting parties would not be able to bilaterally modify the contract?
  17. If a third party knew they could force a competition by protesting such an issue, I would expect to see someone try. You are misrepresenting your conclusion--that the proposed course of action is a violation of CICA--as a matter of fact. You've made a convincing argument in support of your conclusion, but we don't really know whether the GAO or COFC would go along if they haven't been presented with the same facts. Maybe they would see a reasonable distinction between prior cases dealing with improper option exercises and cases where all parties acted as if the option were exercised and the late notice was just an "oops!"
  18. Do you know of any cases where: 1) Government did not exercise option on time 2) Contractor kept working/Government kept overseeing 3) Government sent notice of option exercise late 4) No change to contract terms and conditions 5) Third party protests that Government violated CICA 6) Third party won case? If what your saying is true, I would expect there to be such a case.
  19. For purposes of interpreting FAR 52.217-9, I think the contract expires when the period of performance is over. That seems to be what the Board assumed in American Contract Servs., Inc., ASBCA 46788, 94-2 BCA ¶ 26,855, recons. denied, 94-3 BCA ¶ 27,025, aff'd, 53 F.3d 348 (Fed. Cir. 1995). I don't think it's illegal, it's just not in compliance with the contract. The contractor can waive Government noncompliance, just like the Government can waive contractor noncompliance.
  20. Have you seen this? https://www.dau.mil/partnerships/Pages/StrategicPartnerships.aspx
  21. I think the best you can do is exercise the option late and request that the contractor waive its right to object to an improper exercise. If the right to object to an improper option exercise can be waived implicitly through performance, then it can be waived expressly. Here are some cases where the contractor waived its right: If the contractor objects to the improper exercise and wants to renegotiate terms, then I think you would have a CICA issue (i.e., you would have to justify negotiating on a sole source basis).
  22. @MAY-D-FAR-B-WIT-U, Is the contractor working, or are they waiting for the Government to re-open to continue work?
  23. @PepeTheFrog, There is now a Data Item Document for "Small Business Utilization Report." A reporting requirement could be in a CDRL.
  24. I've chosen the winners of the Plain Language writing contest. The following entry from @Jamaal Valentine was the acceptable entry with the best readability score: The most humorous entry came from @apsofacto: There were some others I really liked that didn't win. If we slightly change @bentley78's entry, we get: Thank you all for participating!
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