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Everything posted by odessa

  1. Circa 1990, as a member of the FAR Council, we suggested something similar where all levels of regulatory material, as well as non-regulatory explanatory statements (ala UCC), guides, and other related were "collocated" electronically and connected by hyperlink (as opposed to physical co-location and shading). As a companion concept we also suggested a reduction in regulatory requirements and the expansion of explanatory statements and guides. Of course, the concepts were quickly rejected. In today's world, I'd suggest the addition of integrated process maps so that detailed methods and processes applying the rules could be followed by practitioners.
  2. Since a COR has no inherent authority, but obtains only that which is delegated by the CO, what then is the purpose of FAR 1.602-2(d)(5), Vern?
  3. Question: CORs are frequently authorized to provide contractors with "technical direction". In practice, this is frequently translated into providing a contractor with instructions on how a specific work activity should or must be performed. In the absence of contract language which defines the methods of contract performance, is such instruction contrary to FAR 1.602-2 (d)(5)? Question: The FAR defines "Contracting Offficer" as including "certain authorized representatives of the contracting officer acting within the limits of their authority as delegated by the contracting officer". Is a COR a contracting officer?
  4. Well, here are a couple thoughts- just to roil the waters: FSSI isn't (yet) true strategic sourcing. It is, thanks to the NDAA, a form of forced centralized buying and leveraged pricing. In industry it might be referred to as consortium purchasing. This form of strategic purchasing isn't a new "hot thing" in the Government. It is the latest iteration of an old "hot thing". Since there is no effective corporate memory in public organizations they tend to invent the past. FSSI may be a more sophisticated version of past approaches to consortium purchasing/strategic sourcing (I am not fully familiar with what level of market/value/relationship/and life-cycle analysis GSA has actually done-lowest purchase price is not necessarily strategic thinking). It may also just be yet another GSA marketing variation using the FSSI logo to capitalize on this Administration's rediscovery of the concept. Having said that, it doesn't mean that there is anything wrong with GSA's FSSI. It may be a very useful tool. It could be our most effective tool. However, just because it is titled as such we shouldn't be misled into thinking that it is the only example of Government consortium purchasing, nor should we be confused that it embodies all the elements of strategic sourcing.
  5. I am equally ignorant of the DFAR definition at 204.7101. However, it seems to me that the solicitation and contract should be explicit as to the purpose and effect of all documents exchanged by the parties during the contract formation phase. In this case, a reference to the DFAR definition may suffice in informing the parties to the contract, but without it you are just asking for a problem down the road. The underlying problem here (lack of contract clarity) goes beyond the distinction between attachments and exhibits.
  6. What an interesting discussion! Thanks all. Regardless of the answer to the underlying question, there are a number of observations made here that hit the mark. To restate them slightly: 1. The GSA MAS are such a unique animal that recycling terminology (BPA) historically used by the FAR for a different application was not the best idea. -Mike_wolf 2. When it comes to the law of contracts, what the FAR calls something isn't necessarily what it is.- Vern 'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'
  7. I am not quite buying it. It seems to me that there is a big difference between the two transactions labelled as BPA's. In the case of a BPA under the MAS the transaction is a subset of an established contractual arrangement (the GSA awarded IDIQ). The MAS-unique regulated procesess for "downselecting" BPA "awardees" from the available pool of MAS contractors doesn't relieve those contractors from the underlying obligations of their MAS contract. The only question then is whether the selection and award process for the BPA creates any additional contractual obligations on the parties based on their respective offer/acceptance. Put another way, is additional consideration required and, if so, is there any? Is the consideration here similar to that which the courts and GAO have found adequate to rationalize the enforceability of the underlying MAS contract?
  8. Hmmm. If a GSA multiple award schedule contract is a contract, how can a BPA established under that contract be anything less of a contractual commitment? Once established, if an agency places an order under the BPA is the BPA holder not under an obligation to perform in accordance with the terms of the MAS contract and the BPA? If not, there would appear to be some serious problems with the GSA program and its legality under CICA.
  9. odessa

    Defending the FAR

    Mike, you are correct on one thing: the FAR is not the "problem".It is simply the vehicle. However, as a vehicle it has a number of challenges, and certain aspects of the document could stand a fresh look. So could the mechanisms by which it is issued. If those challenges did not in fact exist, you wouldn't have to be writing an article defending its virtue. Unfortunately, the "recruitment, retention, and development of contracting managers" isn't the "solution". This has been the mantra of virtually every NCMA head, every OFPP Administrator, and every other talking head in the community for years. I can't think of any componenet of the federal (non-military) workforce that has received as much professional and developmental attention in the last 40 years. Either we have horribly, and repeatedly, bungled the job or we have engaged in self-delusion. I am in the latter camp. When someone eventually writes the history of Government acquisition and contract "reform" I suspect that the most evident theme will be our dogged insistence in cyclically retrying improvement schemes that had little or no impact on the first, second, or third attempt. Perhaps we lack long term memory. Perhpas it is a lack of originality. Perhaps it is an unwillingness to face the obvious.
  10. meteec, In the 1990s there was much debate as to what the FAR should be. A recommendation was made to the FAR Council to distill the existing FAR down to that core policy and procedure requiring regulatory treatment. The various regulated, and electronically available, subject matters could/would be supplemented through hypertext to layers of supplemental (but non regulatory) information that would include explanatory material (ala the Uniform Commercial Code), guidance and good practice, relevant case law, training modules, process maps, samples and examples, articles, and other resourcess. The stated objective was to have a relatively small core of mandatory requirements and a larger body of vetted professional resource materials, available in context, to aid practitioners. An unstated objective was to also provide a non-regulatory, but nonetheless official outlet in which new concepts (including Vern's "half-baked reform initiatives") could be aired without prematurely or unnecessarily adding to the body of mandatory requirements. Needless to say, the recommendation wasn't adopted. Sounds very similar to your thinking, however.
  11. Vern, to quote Aragorn: "There is always hope." I will try to set the stage, if you will act upon it.
  12. I was not suggesting a FAR rewrite. In fact I agree that a wholesale revision of the document is impractical and, perhaps, unnecessary. I was suggesting that it needed a good "spring cleaning". This could be done incrementally and it could include the deletion of materials no longer neccessary or appropriate to a regulatory document. One approach would be to identfy a limited number of priority issues to tackle based on a survey asking the Federal and private sector to identify sections that are: confusing, inconsistent, incomplete, outdated, poorly or illogically constructed, contain incorrect or innacurate statements, better handled through non-regulatory guidance or information, or reflective of poor judgment or misapplied principles. Vern, after teaching so many courses on the FAR you could undoubtedly identify the high priority areas in short order. This, to me, is a far simpler initiative than a true rewrite. And simpler than attempting to delete large portions of the regulation. That effort makes little sense to me without tackling a much bigger issue- the source of most of the "stuff" that makes the acquisition system the complex, costly, and incomprehensible system that it is. Additionally, I don't agree that there aren't talented individuals in the Government's workforce capable of taking on the project (s). The problem, I suspect, is the system under which they operate. Having had some interaction with the DARC, the CAAC, and the FARC over the years, I can tell you that the regulatory development process is anything but efficient. That is something that would indeed benefit from a "rewrite".
  13. I have been away from this thread for a while, and I'd like to return to my earlier comment (which Vern seems to have discarded). Ms. Rung based her "vision" memo, in part, on suggestions provided by industry in response to a public request from the CAO Council and OFPP that was published in the Federal register many months ago ( referred to as the "open dialog with Industry"). Apparantly, there were a sufficient number of comments submitted that commented on the complexity of Federal acquisition to elicit Ms. Rung's interest in addressing "regulatory burdens". There is, of course, much much more to "acquisition complexity" than the FAR. However, since this thread is on that subject I thought it would be interesting to hear what industry actually had to say on the matter- not just OFPP's translation. My memory is that the suggestions for improvement were a bit more sophisticated than "shrinking the FAR". For example,submitted comments noted that there are portions of the FAR that are a hodge- podge of policy and procedural "bolt ons" resulting from years of legislative and executive tinkering. When looked at as a whole, the covered topics are disorganized, difficult to understand, and in some cases intellectually suspect. There are other portions of the FAR that are reflective of an acquisition focus more significant for 1960s than today. There are parts of the rule that are so out-dated that no one pays any attention to any more. there are statements in the FAR that are just plain wrong. And, as others have pointed out, the FAR is never quite sure whether it is a regulatory document or an informational guide. If it is to be the former, then "shrinking" is a definite possibility. In short, there is much on the FAR that is good, well thought out, and useful. However, the industry comments would indicate that it is time to give the document a fresh look. I applaud Ms. Rung's willingness to consider at least some of these issues. Unfortunately, she has tasked the wrong organizations with the task.
  14. It would be nice if OFPP and the CAO Council released a report summarizing all the suggestions that were provided in response to their request for industry's ideas . I suspect that there were a lot of good thoughts left on the table, including ones on how the FAR could be improved.
  15. So, putting aside for a moment the discussion on Executive Orders,et.al., let's get back to Physiocrat's original posit and civ-1102's point regarding the distinction between "charge account" BPA's under FAR 13.303 and GSA's (unfortunate) adoption of the term Blanket Purchasing Agreement in the context of drop down agreements under the schedules program covered by FAR8.405-3. The defintions of the terms and the rules regarding their usage are in fact different. I, for one, am under the impression that the former are not contracts, while the latter are. What say you?
  16. Just saw this GSA OIG report:http://www.gsaig.gov/?LinkServID=8E3B1DAD-CE45-9941-09FE240651197CCE&showMeta=0 Apparantly the previously stated conditions weren't present.
  17. You asked two questions, Vern: 1.Are the rules for using GSA MAS/FSS schedule contracts too complicated? 2.Is anyone confused about how to use the schedules and about what you can and cannot do? My opinion: 1. Yes. GSA's multiple award schedule contracts were originally a rather innovative (for the time)- and surprisingly rational- vehicle and process for acquiring commercial products (later services).The method was procedurally rather simple and provided an efficient form of what is now called "strategic sourcing" for Government agencies.However, in the public arena, no good deed shall ever go unpunished.Years of misunderstanding,criticism, and tinkering by half-informed experts have resulted in the current system, which -in my opinion- is neither simple nor efficient. 2. No. If you can read, think, and are willing and able to take the time to do so, you can pretty much understand the current set of rules governing the program.However,those conditions may not always be present.
  18. Thanks for the additional information, Mike!
  19. The "development and maintenance of a competent acquisition workforce" might actually be made easier if we could somehow reduce the ridiculous number of moving parts in the acquisition system. You reference ideas and initiatives "in various stages of development" that could improve the bloatus horrendous of TINA, FAR, and the government's pricing and compliance infrastructure. I am not familiar with these initiatives, Mike. Can you provide more information?
  20. The history of TINA-related legislation and its implementing regulations is a wonderful case study of how government procurement policies are frequently misinformed, misdirected, and mishandled. As a result the system is now burdened with a complex, confusing, costly, inefficient, resource bloated, Government-unique activity that churns out reams of data that most practitioners really don't know how to manage, analyze, or apply. TINA's merits are a myth of acquisition reform that is worth debunking.
  21. odessa

    Blow Up the System?

    Following up on Mr. Edwards FAR comment, the suggestion below was made in the CAO/CIO Councils' request for ideas to improve the procurement system last Spring: Spring Cleaning for the FARThe FAR needs a top to bottom scrubbing as well as some thought as to how its utility could be improved. Many sections of the FAR were developed years ago or pieced together from predecessor regulations dating back to the 60s when Federal procurement was supply-focused. Other sections of the FAR are a patchwork of concepts that, while "politically correct" at inception, no longer suit the needs of modern procurement and contracting practice. Still other sections reflect the ill-considered propensity of its drafters to embed Court, Board, and GAO interpretations and applications of regulations into the rules without determining whether that interpretation is desirable policy. Suggest that OFPP and the FARC commission a small group of recognized procurment experts and some out-of-the box thinkers to go through the entire document and recommend changes to clarify, better organize, re-vise, add, subtract, and otherwise re-think the regulatory scheme. This could include recommendations for statutory changes that have unnecessarily encumbered the system as well as consideration of the use of official commentary or explanatory notes as was done for the Uniform Commercial Code. Experts should include people like Ralph Nash and Vern Edwards as opposed to the usual folk who populate these commissions. Indeed, this would be a great way to capture and apply some of their wisdom before it is lost to the procurement community. Having once been responsible for the FAR, I have some insight into how it has been put together. It is time for a fresh look. Whatever happened to all those suggestions by the way? Did I miss the announcement on what the Council's intend to do with them?
  22. Agree. This was my last point. The FAR discussion of term vs completion is somewhat academic since the reg descriptions aren't reflected in a standard FAR clause that describes the parties' rights and obligations in those terms. Thus, "...the actual terms of the contract regarding the parties' obligations and the circumstances under which fee is earned are controlling, not the regulatory descriptions of term and completion contracts". As far as common usage is concerned, the terms are frequently used in ways not contemplated by FAR 16.306, which only uses the terms for purposes of describing how the scope of work is described and when the (fixed) fee is earned. Like much of what is in Part 16 on contract types, the text isn't all that helpful.
  23. The term and completion form of cost reimbursement contracts, as used in the FAR, refer only to what the contractor has to do to earn fee (the FAR uses the terms only in the context of a cost- plus fixed- fee contract, but conceptually they may have broader application). The terms have nothing to do with the reimbursement of allowable costs or the expiration of the contract. In a term contract the fee is earned when the contractor has provided a level of effort for a stated period of time. As long as it does so, fee is earned regardless of the performance outcome.In a completion contract, however, fee is earned only when the end product specified under the contract is delivered.The contractor's must use its best efforts during the period of performance to produce the end product within the contract cost estimate/ceiling. If it does so, the Government's obligation is to pay the fee upon completion. If the contractor exceeds the contract cost limit during the contract period the government may always add more money to the contract and compel additional effort toward completion. If the contract has a defined term or period of performnce(and most do), once the contract term ends the contract is over. If the end prodcut has not been delivered the contractor has not earned its fee (unless of course the non-delivery was because of Government fault). Unlike a fixed-price contract, however, costs are reimbursed pursuant to the standard cost reimbursement Payments clause. Having said this, there is no standard FAR contract clause that I am aware of that actually uses the term/completion terminology. Accordingly, the actual terms of the contract regarding the parties' obligations and the circumstances under which fee is earned are controlling, not the regulatory descriptions of term and completion contracts.
  24. My apologies to both of you. Public Interest/( c )7, now (a)7.
  25. Vern, Re: "I'm curious about the example you cited and want to hear more." Sorry to be so tardy in response. The industry we needed support from was not familiar with government contracting & had no real interest in learning (couldn't blame 'em). Used industry vehicles to explain the need, solicit interest, and explain the selection process. Had one on one discussions with principles to elaborate. (Used Government vehicles as well, but no one reponded) Asked for submission of basic qualification information Down- selected to the four companies identified as best qualified Asked for written proposals from the four using a limited number of very focused selection criteria Conducted interviews with the teams proposed to work on the project A three member selection committee selected the winner, subject to successful negotiation of the complete contract within a specified period of time (with the proviso that if agreement was not reached within that time we would move on to the next best) The contract included all mandatory government contract clauses, but relied heavily on industry norms Compensation was in accordance with industry norms, and evaluated for reasonableness in consideration of those norms The whole process took a little over a month. No complaints. The selected company did a great job and the project was successfully completed
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