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Get Ready!

H. R. 2500 and S.1790 have passed their respective houses of Congress.  S.1790 has around 19 provisions in Title 8 dealing with contracting while H. R. 2500 has over 60 provisions in Title 8 dealing with contracting.  I've only scanned the names of the provisions but there is a lot of new garbage that is coming DoD's way.  I haven't looked to see if any of the garbage is being tied in to civilian agency contracting in them.

I've updated the Legislation page so you can find links to them there.  Remember, this flotsam is still far from adding to the already created garbage.  In the months ahead, one of the Houses will pass an NDAA version, then a conference to iron out the differences--probably a paper, scissor, rock game to decide on provisons to include in the conference report, then an agreement and conference report, and then a new law.

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I posted this topic in anger last week.  Then I hid it.  Now it is back.  In reading:  Judge Bruggink's opinion in Oracle America, Inc. v. U. S. and Amazon Web Services,  Inc., No. 18-1880C, July 26, 2019 I read the inevitable.  The quote starts on p. 37

Quote

As discussed in the background, two single award determinations were made, by different officials under different standards. This is because, as currently codified, 10 U.S.C. § 2304a (2012) is a mixture of different legislative efforts at promoting competition in IDIQ contracts. Separate legislative and regulatory efforts have been layered on top of one another over time, resulting in the two distinct single award determinations in the JEDI Cloud acquisition.

and then on p. 43 Judge Bruggink states:

Quote

The use of a technology refresh provision thus appears to be at odds with § 2304a(d)(3)(B)(ii), and the Under Secretary apparently chose an exception under § 2304a(d)(3) which does not fit the contract.

This conclusion is obviously somewhat in tension with our previous decision upholding the CO’s decision that multiple awards are not allowed. This peculiar state of affairs is an artifact of a code section which is a mixture, rather than an alloy, of various pieces of legislation. Not surprisingly, the parties have different views about the implications of this possible result and whether Oracle is prejudiced by the flawed D&F.

Apprently, a workaround was found.  You will have to read a couple of pages of the protest to understand the quotes I added here.  Maybe we can say no harm was done.  But the Judge faced the issue of layers of legislation himself in this opinion.  I've noted the problem and the solution in the Wifcon Blog over the years.  

I'm angry again and I'm going swimming.

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Couple of comments.  One, the government needs to address clauses like technology refresh with pricing/evaluation provisions.  Technology changes are the needed norm with most commodities and contract terms need to be lengthy, partially because long award times.  So contracts have to be flexible and accommodating.  Second, on just about any significant procurement the amount of required documentation sets the stage for inconsistencies and conflicts.  With all documentation at their disposal, it’s easy for a protestor to pick things apart to some degree.  Just one more reason why a complete redoing and simplification of regulations and laws is needed.  

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