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On ‎5‎/‎24‎/‎2016 at 4:30 PM, Vern Edwards said:

After 40+ years of experience in contracting, which included time as a government contract negotiator, contracting officer, chief of two contracting offices, and headquarters staffer, I'd turn contract writing over to contractors in a heartbeat. That's the way it ought to be, the offerors offer and the Government accepts. That's the power. The Power of Acceptance or Rejection. Let the offerors write the statements of work, just like they do in the SOO process.

Think of it. Free from all that RFP-Contract writing hassle. By God, why didn't I think of it?

Great idea, shall7. So now what? Don't let it just die. I'd toss that baby frog out without a second thought.

Somebody--propose it as an innovation!!!!

My plan is to start with where I am  - the Navy Secretariat.  I will contact the Chief of Staff at the Deputy Assistant Secretary of the Navy for Acquisition and Procurement (DASN AP) and if no traction occurs I'll move through some NAVSUP channels outside my sphere of influence.  If NAVSUP balks at the idea I will move onto the CNO's "Rapid Innovation Cell" and see where it goes from there.  I could also try to talk to someone at the Assistant Secretary of the Navy for Research Development and Acquisition (ASN RD&A) or possibly even the Under Secretary of Defense for Acquisition Technology and Logistics (USD AT&L).

My main problem of course, is lack of rapport or any concrete solution.  It will be a challenge to gain traction, no doubt.

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shall7,

I think you have an interesting idea, but the problem you presented had to do with the limitations of SPS. It seems like the solution to that problem is to not require the use of SPS. The idea that you have potentially solves a lot more than the SPS limitation. I think you need to better define the problem or problems that would be solved by your idea. For example, the Navy got in trouble last year for not having the correct clauses in its contracts for implementing the Buy American statute and the Berry Amendment. Maybe we can get a better result if the offerors had to select the proper clauses. 

Ask only to pilot the idea. Gather data. If things go well, you have a better argument to try it again.

My unsolicited advice.

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On 5/31/2016 at 6:57 PM, uva383 said:

Desparado,

why do you think the drafter of a contract is protected?  Contra proferentem, a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. Based on this doctrine, the Government is actually harmed, with the exception of those clauses where courts have ruled the Christian doctrine applies, if a term or clause is ambiguous or missing from a contract. This is why courts generally rule against the Government when Contracting Officers try to invoke clauses that are missing from the contract, with the exception of those clauses that fall under the Christian doctrine. 

 

UVA - By my statement I meant that by drafting the RFP/Contract, the government will be able to ensure that the clauses necessary to protect our interests are in place. If you allow the fox to run the hen house, they will only put in clauses that protect their interest.  For example, I'm sure they won't put in any type of T4D clause, or liquidated damages clause, or anything the government currently uses to protect its interests.

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Desparado,

What if the procurement were competitive and the evaluation considered protection of the Government's interests in the proposed terms and conditions?

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Desparado:

If the Government RFP instructed offerors to insert all of the clauses required by FAR, how would a proposal be acceptable if it didn't include required clauses? Example, termination clauses for default and convenience use shall statements.

Even if an offer didn't include a clause the government wanted, isn't that negotiable? The government doesn't have to accept an offer that it doesn't like.

shall7:

Recommend reading Vern's blog on Innovation: How Not to Go Down in Flames

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Small business would be well-served by this kind of scheme. It would force them to become experts in the contracting process, something woefully lacking in today's environment where firms come out of the SBA preference programs without the ability to find their 'donkey' with both hands (as SBA will tell you). As it stands, most of them graduate to oblivion because they have been coddled and hand-held to the point they don't know the difference between a BPA and an IDIQ.   

There seems to be a belief amongst many commenters that somehow the government would 'not be protected' unless there is government authorship, however, no one said "non-compliant with the FAR".  By the same  token, commercial-to-commercial  transactions are assumed to be bound by  the UCC and/or Civil Law re: contract terms.

Isn't this kind of a logical extension of Part 12, i.e., he who provides the most favorable terms, wins? whoever holds the funds will always have the power, and that will always be the government. At least in the suggested scenario, vendors would be forced to read the  dang contract for a change..

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Don and Jamaal - Why complicate matters by having to evaluate/negotiate all of that?  I don't see that the gain outweighs the cost/risk here. In fact, I would propose that acquisitions would take much longer to complete because of the additional requirements to review, evaluation and possibly negotiate clauses. Call me old fashioned but I truly believe that the best protector of the government's contracting interests is the government's contracting officer, and that we should dictate the terms and conditions of contracts, not the contractors.

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Desparado,

I was reacting to your statement: "If you allow the fox to run the hen house, they will only put in clauses that protect their interest." I think that risk could potentially be mitigated by competition.

Your assessment of the idea may be right, but we wouldn't know unless somebody tried it. There could be some benefits that we can't see yet.

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1 hour ago, Desparado said:

Why complicate matters by having to evaluate/negotiate all of that? 

Isn't the question actually "does evaluating a proposed model contract take longer than drafting one from scratch?"  

Doesn't 12.301 kind of open the door to the OP's approach, i.e.,  "...include only those clauses...Determined to be consistent with customary commercial practice."?

Quote

I truly believe ... we should dictate the terms and conditions of contracts, not the contractors.

How much are these "dictated" T&Cs costing the government?

But admittedly there is a scary implication of this approach: Lawyers.  It seems implied that they would  now be actively involved in Source Selection, e.g., "Evaluation Factor X: Legal Sufficiency of the Proposed Vehicle (Pass/Fail)". 

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I have followed this thread and find the idea very interesting.   Just getting an opportunity to test the idea will be a long haul but like some have said it should be tried.  But I am concerned….

Seems many comments concentrate on industry acceptance of the idea and ability to put it into practice in proposals they would submit.  I question the ability of the Government to both accept and put into practice the idea.  And I do not mean at executive level, I mean at the journey level. 

The WIFCON forum is forever scattered with comments about the ability of the current workforce.  Simply creating a new approach to the RFP process (which the idea is in the end) does not create success.

Is not the basic ideal of contracting in both the commercial and Federal sector that everything is negotiable?  From this view does not the process of a contractor suggested model contract already exist?  Nothing, in my view, prevents a contractor from, in the current process of RFP and Government prepared/proposed model contract, suggesting changes to the model.  The problem is that the Government is less than acceptable to such suggestions.

How many in this forum  have questioned and proposed changes to their personal cable or satellite tv service contracts, cell phone contracts, marked up their car repair work order, or any other commercial market place acquisition as Pepe has suggested?  What was your success if you did in reaching agreement on having the contract changed so that ended up using the exact firm you wanted?

If I am truly the firm you want to successfully complete the work you want done I would suggest that it is the competition process that is flawed and not the effort to reach an acceptable contract. 

Consider a twist on the idea - Let me use what is currently termed in the Federal arena “market research” as the competition process, be able to defend  (document) that market research unequivocally  to determine who I think is best for the work I need done and then move to the RFP process to let that firm suggest the model contract, negotiate it and get the work done.  I want the contractor and if the contractor is are reasonable with requests regarding the model/final contract (socioeconomic considerations included), I will get the work performed and the contractor will make a profit.

Sound like a familiar process, yes to an extent in the Federal sector it does but it is called A-E contracting, yet I do this every day at home for every type of need I have!!!!  Commercial item contracting at its finest.

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In case anyone was wondering what happened to this, the Defense AT&L magazine has stated that it intends to publish my final article on this subject in its March 1st 2017 issue.  I hope you all like it!

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