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FAC 2005-48 & ID contracts under Subpart 19.10

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Carl:

The linchpin of your argument is the term ?new requirement.? I have searched the United States Code, the Code of Federal Regulations, and the GAO decisions for a definition of ?new requirement? and found only one, in 13 CFR 124.504( c)(1)(ii)(D), which is applicable only to the 8(a) program. So unless there is an applicable official definition that I missed, you must tell us what you mean by that term.

The term ?new requirement? is ambiguous, and its meaning is not obvious from the context. For instance, it could mean a requirement that has newly emerged from new circumstances (e.g., a new military threat), or one that the requiring activity has had for some time but for which it has not had funds for an acquisition and has not submitted to the CO under requisition, or it could mean a particular instance of a recurring requirement. Is an option to extend the term of a service contract a new requirement? Is a change order adding a feature to a product specification or a task to a statement of work a new requirement? We need a definition.

Please define ?new requirement? for the purposes of your argument.

Assuming that the definition you give us is unambiguous, I?m sure you know that unless it?s an applicable official definition my next question will be why we should accept the one that you give us.

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Bob:

You wrote: "how me an example of a program that was killed by law and an existing IDIQ contract was used to buy things under the program."

That would be hard to do without knowing about specific contracts and what happened. However, when the labor surplus area rules were removed from FAR I cannot recall anyone taking the position that IDIQ contracts awarded under that program could no longer be used. I have searched for news in that regard and could not find any.

Carl's proposition, if I understand it rightly, is that "new requirements" are subject to current rules and that contracts for such requirements that predate the current rules can no longer be used. Did the introduction of the service-disabled veterans program invalidate pre-existing IDIQ contracts? We can think of many new rules that have taken effect without anyone arguing that IDIQ contracts awarded before the new rules took effect can no longer be used. For example, no one argued after FASA that IDIQ contracts for items newly considered commercial could no longer be used. That is just one example.

Carl's Timbuktu argument is an unintentional red herring. (He introduced it in good faith, not intending to mislead.) He has not produced any specific statutory language for consideration, so I will ignore any argument based on that example. I never should have responded to it in the first place.

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Vern's argument seems to build on an analogy. The major premise of the analogy is undoubtedly true. Any convincing argument would need to explain why the analogy is not appropriate. I personally think the analogy is appropriate, though I do think that any CO needs to at least consider FAR 19.502-2(d) in deciding whether to continue to issue orders. See my post on Topic #715. Delex does not apply to the facts of this thread, as no small business (much less two) holds a IDIQ.

Carl's focus on the requirement is certainly similar to the GAO's rationale in LBM in finding jurisdiction, but I personally don't buy it. We have no reason to believe the scope of this IDIQ is so vague and broad as to make LBM even remotely on point. We have no facts to suggest this is a situation where the agency's initial acquisition planning for the basic did not contemplate work exactly like that planned for a future delivery order.

I would rely on FAR 1.108(d). In the absence of clear language in either the statute or the implementing regulation specifying otherwise, the elimination of FAR 19.10 for future contracts does not mean that the basic is unavailable. If the agency didn't meet its small business goals last year, then it might be a closer question, but again, we've no suggestion of that.

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So everyone will understand the state of the debate:

My argument is that the repeal affects only work that is not within the scope of the competition and the contract. The repeal does not affect work that is within-scope. Thus, the agency can continue to issue within-scope orders against the IDIQ contract. I rely on the following:

1. Long-standing law and tradition in government contracting that within-scope work is not governed by the rules for new (out of scope) work. See, e.g., FAR 5.202(a)(6) and (a)(11), and 6.001(e) and (f). See also Post #37 in this thread.

2. FAR 1.108(d).

3. The fact that many, many IDIQ contracts are awarded pursuant to laws and regulations that change after award, and I am not aware of any law, regulation, policy, or holding to the effect that a such a post-award change renders such contracts no longer viable.

(An agency can decide to voluntarily forego further use of the contract for its own reasons, but that is another matter.)

Carl's argument is that the repeal affects all "new requirements" and that orders can no longer be issued against the IDIQ contract. However, he has not defined "new requirements" and he has not stated the basis for his proposition except to say it follows from the fact that the contract was awarded under a program that has since been repealed. I am awaiting Carl's response to my request for his definition of "new requirement."

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Guest carl r culham

"New requirement" defined as a normal meaning of a procurement need that is being newly considered. A definition supported by longstanding use that is verified by the fact that in wifcon.com alone there are approximately 770 uses of the term to extend this normal meaning. The referrences in wifcon range from use in policy and statute citations to many discussion board topics. This longstanding use is only being challenged now as supported by the fact that in the 770 references noted the term has never been challenged in this normal meaning use. New Requirement is exactly what it means.

Again my arguement because Vern misrepresents it.

Yes A-E work is within the scope of the contract. While the contract purpose gave consideration to new requirements the agency might have but could not otherwise estimate for a stand alone contract there still is the fact that there is a statutory requirement that the contract does not meet and that is any requirement, whether covered by the scope of the this non-mandatory contract or not, must be considered in light of FAR 19.5 and the cancellation of FAR 19.10.

The Timbucktoo example is not a red herring and is directly on point to this arguement.

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Carl:

I reject your definition of "new requirement" ("normal meaning") as absurdly ambiguous.

I reject Wifcon as a basis for establishing "longstanding use." Statute, regulation, case law, and professional literature are the only reliable bases for establishing longstanding use.

If I misstated your argument it was inadvertent. I restated it just so you would have a chance to correct me. I did not intentionally misrepresent your argument.

The Timbuktu example is not an example at all. An example would be based on actual statutory and regulatory language.

Finally, the following sentence, to the extent that it is coherent, is a classic example of circular reasoning:

While the contract purpose gave consideration to new requirements the agency might have but could not otherwise estimate for a stand alone contract there still is the fact that there is a statutory requirement that the contract does not meet and that is any requirement, whether covered by the scope of the this non-mandatory contract or not, must be considered in light of FAR 19.5 and the cancellation of FAR 19.10.

If that is the best you can do by way of argument, then there is absolutely nothing for us to talk about. Frankly, I am disappointed. I expected better from you. Had I known that this was coming I wouldn't have bothered responding to your post. You believe what you believe and others are welcome to follow you.

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"New requirement" defined as a normal meaning of a procurement need that is being newly considered. A definition supported by longstanding use that is verified by the fact that in wifcon.com alone there are approximately 770 uses of the term to extend this normal meaning. The referrences in wifcon range from use in policy and statute citations to many discussion board topics. This longstanding use is only being challenged now as supported by the fact that in the 770 references noted the term has never been challenged in this normal meaning use. New Requirement is exactly what it means.

Again my arguement because Vern misrepresents it.

Yes A-E work is within the scope of the contract. While the contract purpose gave consideration to new requirements the agency might have but could not otherwise estimate for a stand alone contract there still is the fact that there is a statutory requirement that the contract does not meet and that is any requirement, whether covered by the scope of the this non-mandatory contract or not, must be considered in light of FAR 19.5 and the cancellation of FAR 19.10.

The Timbucktoo example is not a red herring and is directly on point to this arguement.

Carl,

Are you saying that if the "new requirement" was within the scope of a requirements contract, then the rule of two analysis would not be required? I ask because you keep stressing the nonmandatory nature of an IDIQ contract.

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Guest carl r culham

Vern - Your comments regarding the rejection of my definition boarders as usual on your own failure to read coherently my post and do your own research of my cited examples. You simply easily brush them aside as boorish without listening to reason and reading.

Specifically I stated that the 770 references in wifcon.com do include statute read my post! Example of one specific reference to "new requirement" is in the National Defense Act of 2006. http://www.wifcon.com/dodauth8/dod08_324.htm Other references are found in GAO Protests, here http://www.wifcon.com/pd15_206e.htm and here http://www.wifcon.com/pd9500.htm .

I suggest you quit making a red herring out of term that is widely used.

As to your reference that FAR Part 1.108(d) is a significant support to your argument I suggest you have read more into the citation than intended by the FAR Council. Specifically when the final rule was stated the FAR Council made this comment in the Federal Register. Reminder a task order or delivery order is a new contract.

"The final rule amends FAR Parts 1 and 52 to enhance a common

understanding of how the FAR is drafted. The final rule adds FAR 1.108 and amends 1.105-2, 52.101, 52.104, 52.105, and 52.200 to reflect

current FAR drafting conventions.

DoD, GSA, and NASA published a proposed rule in the Federal

Register on January 26, 2000 (65 FR 4346). Three respondents provided

public comments. The Councils considered all the comments in the

development of the final rule. The final rule revises the proposed rule

as follows:

FAR 1.108(d)(2) to clarify that contracting officers must

not award or modify contracts to include the FAR change until the

effective date of the FAR change."

Don - Yes and in such a case I would adopt the argument that Vern is attempting to apply to an IDIQ.

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Perhaps stating it a different way would help.

Pub. L. 100-656, the law that initially created the demonstration program, in sec. 711? & (d), defined the program's term and application. The program applied "to contract solicitations for the procurement of services in industry groups designated in section 717." When originally enacted, the demonstration program had a set expiration, but the program was extended indefinitely with Pub. L. 105-135, sec. 401. Both term and application are required to understand the scope of the program. As the program applies to "contract solicitations," a contract awarded against a solicitation issued within the program's term would be within the scope of the program and would remain so even after the expiration of the term of the program.

Absent clear language to the contrary (either in the statute or regulation implementing the program, or in the statute or regulation repealing the program), the repeal of the program with Pub. L. 111-240, sec. 1335, would not retroactively apply to existing "contracts" or "procurements." In reading sec. 1335, I found nothing to suggest repeal was intended to apply to existing contracts. FAR Case 2011-005 also didn't contain any language suggesting such an intent. The FAR drafters certainly know how to describe the effect of a rule change with delivery orders in mind. Consider FAR Case 1999-607 (FAC 97-27) (April 25, 2001), discussed in 43 GC ? 262. In fact, the continued presence of FAR 19.505-2(d) can be read to suggest no retroactive effect (though that is probably giving the drafters too much credit).

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Carl writes, "Reminder a task order or delivery order is a new contract." It isn't entirely clear what he means by this, but if he is suggesting that this definition somehow limits the ability to issue orders within scope of an existing basic contract, he's going to need more than FAR Part 2 to get him there. Any interpretation of the word, "contract" must be made in context. Here, we're interpreting is Pub. L. 100-656 as implemented (the statute creating the Competitiveness Demonstration Program).

As the focus of the Competitiveness Program is on whether competition for a contract should be unrestricted or whether it should be limited to small business, the focus shouldn't be on the definition of contract in Part 2, but on whether the issuance of the next task order is within scope or would require a new competition. As that ground has already been covered quite thoroughly, I won't revisit it.

I looked for anything I could suggesting a task order was a new contract for any purpose, and the only thing I could find was LB&B Assocs., Inc. v. U.S., 68 Fed.Cl. 765 (2005), 48 GC ? 11. In interpreting an SBA reg, it suggests, at least for purposes of requiring a small business certification, an order may be a new contract. The decision is discussed in Shager, 2005 Procurement Review, 06-2 Briefing Papers 1, 26 (Jan. 2006). I'm not sure it's on point, and I'm certainly not sure it was correctly decided.

(For some background on the significance of whether a task order is a contract, see Donald Mansfield (aka Don Acquisition), Task and Delivery Orders: Are They "Contracts"?, 24 N&CR ? 50 (Oct. 2010) or his blog. I would suggest that the manner in which FAR Part 2 defines "contract"--inasmuch as it actually does--is intended to be a broad as possible, to avoid folks from limiting the applicability of a given mandate in the FAR by construing that mandate's use of the word, "contract" narrowly. The vehicle used to capture a change in the parties' obligations--be it a new contract, a modification, an order--should not be confused with the obligation. When the FAR uses the word "contract" in the sense of "obligation," the choice of vehicle doesn't defeat applicability.)

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Carl:

Here is your definition:

New requirement" defined as a normal meaning of a procurement need that is being newly considered."

I presume that "newly" equates to "never before", so that a new requirement is a procurement need that was "never before" considered.

Now, I am not trying to misrepresent you. I am trying to understand you. If "newly" does not mean "never before," don't come back all pissy about being misrepresented. Now, proceeding on the basis of "never before," let's test your definition for clarity.

==========

Test 1: Suppose that we work in a contracting office for an Air Force base and that the base civil engineer has a number of construction projects that have been on his shelf since before the repeal of the Small Business Competitive Demonstration Program. He has never submitted any of them to the contracting office for acquisition because he has not had the funds. The contracting officer knows that there are some such projects, but does not know the details of any of them. He knows only that the civil engineer is waiting for funds, assuming they ever come. The contracting office has an IDIQ task order contract for just such construction projects, awarded through open competition before the repeal; however, the repeal has now taken effect. Now suppose that the base civil engineer obtains enough "fallout" funds for one of the projects, $500,000, and submits an acquisition request to the contracting office for issuance of a task order for the project.

Is that project a "new requirement," i.e., one that has "never before been considered," such that it can no longer be the subject of a task order under the IDIQ contract? The CO knew that there were such projects on the shelf, that's why he awarded the IDIQ contract, but did not know any specifics of the one in question. He had not even heard of it. Does "newly considered" mean never before considered by the agency or never before considered by the contracting office? Is it newly considered because the contracting office has not seen it before, or has it already been considered because it has been lying on the base civil engineer's shelf for some time and the IDIQ contract was awarded with such projects in mind? And what constitutes being "considered"? What kind of thoughts are involved in consideration? Whose thoughts? What if the CO had known about the project in detail before the repeal and discussed the use of the IDIQ contract with the civil engineer. Would that constitute having been considered, even if no requisition had been submitted to the contracting office?

==========

==========

Test 2: Suppose that we have a $5 million construction contract in place that was awarded through open competition while the Demonstration Program was in effect and that construction is underway. The repeal is now effective. A change in policy that occurred after repeal requires the addition of a feature to the project that was not included in the contract specifications and drawings. The base civil engineer received a communication from HQ changing the number of restrooms needed in facilities of a certain size. The current specifications and drawings call for one restroom in the facility, but the agency now must add a second restroom. The addition is unquestionably within the scope of the contract and will cost $200,000. The need for the second restroom was not discussed during acquisition planning, because the policy at that time called for only one restroom.

Is the addition of the second restroom a "new requirement," even though it is within scope? If so, does that mean that the CO cannot issue a change order to add the restroom to the specs and drawings?

==========

I don't expect you to respond to those tests. In fact, I hope you don't. I'm not seeking a meeting of the minds with you anymore. I just want other readers to have something to think about when evaluating your argument, such as it is.

Now, I'm not going to go into a lot of detail about your 770 Wifcon usages. However, I did check the three links you provided in your last post. Did you read all 770 before relying on them? Here is how "new requirement" reads on the Wifcon page to which your third link <http://www.wifcon.com/pd9500.htm> took me. It is from a decision of the Court of Federal Claims:

Precedent does not support plaintiff?s argument that an agency must go through a separate evaluation process when considering whether to implement the GAO?s recommendation. In the normal course of events, agencies fully implement GAO recommendations, and the ?fail[ure]? of an agency ?to implement fully the recommendations? of the GAO is so serious that a report of this ?failure? must be submitted to Congress. 31 U.S.C. ? 3554(B)(3), (e)(1) (2009). Neither Honeywell nor Centech nor any other binding case mentions a separate evaluation requirement. In fact, the only two cases to mention this requirement are the two cited above?IMS, Services, where the requirement allegedly appeared in dicta, and the recent SP Systems that rejected the existence of any such requirement. Finding that such a requirement exists would be at odds with our path of review in cases such as this one; as discussed above, this Court reviews the rationality of an implemented GAO recommendation because that decision ?constitutes the very reason(s) for the agency action.? Grunley Walsh Int?l, LLC. v. United States, 78 Fed. Cl. 35, 44 (2007). Furthermore, the administrative record in this case contains numerous documents and emails discussing the GAO decision and whether to implement it or waive the conflicts. This Court will not rely on challenged dicta in a nonprecedential, fifteen-year-old case to forge a new requirement.

Emphasis on "new requirement" added. That's the only mention of "new requirement" I found on that page. Criminy, Carl. That doesn't have anything to do with what we're talking about. Ouod erat demonstrandum: Your reliance on your 770 Wifcon usages is absurd. Goodness, you could have at least been more careful in choosing the links.

Finally, your discussion of FAR 1.108(d) is meaningless. It boils down to nothing more than that FAR 1.108(d) means what it says.

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Guest carl r culham

Vern - How do your tests fair with this reference - http://www.whitehouse.gov/omb/circulars_a0...ech_correction/ ?

What wifcon supports to me is that there are individuals that use the term ?new requirement? to describe something being procured with the term self defined (normal meaning) by its use in the discussion thread or specific document. I might add that you ought to take a swing through FedBizOpps and you will find the same occurrences. Beat me up all you want to about my use of the term but it is very clear to me that I meant something actually purchased under the IDIQ because in reality nothing is contracted for in the IDIQ except a "right" to do so through the use of a minimum. Plain meaning of "new" whether you want to add "requirement", "procurement", "contract", "purchase", ?task order? etc. and then argue about it.

Now to further specifics with regard to your tests.

Test 1 - So I guess what you are also saying here is that if the IDIQ allowed steel from Timbucktoo because the anticipated "shelf" projects had needs for Timbucktoo steel and in the interim a statute was repealed that allowed Timbucktoo steel into the US you would purchase the "shelf" project if it continued to require Timbucktoo steel?

I hope you answer this question with a Yes or a No as I too want the readers to have something to evaluate your argument other than the smoke and mirrors you continue to use in arguing "new requirement".

Test 2 - This example is not useful to the instant question being argued in this thread.

For this thread I am done responding to YOUR posts.

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Carl's link is to OMB Circular A-76, which has nothing whatsoever to do with what we are talking about. In any case, here is the definition of "new requirement" from A-76, Acronyms and Definitions:

New Requirement. An agency?s newly established need for a commercial product or service that is not performed by (1) the agency with government personnel; (2) a fee-for-service agreement with a public reimbursable source; or (3) a contract with the private sector. An activity that is performed by the agency and is reengineered, reorganized, modernized, upgraded, expanded, or changed to become more efficient, but still essentially provides the same service, is not considered a new requirement. New ways of performing existing work are not new requirements.

That definition applies when an agency must make a contracting out decision. (By the way, that definition is deeply flawed, in that it uses a derivative of the term to be defined in the definition itself -- "newly." This violates one of the fundamental rules of definition. See Copi and Cohen, Introduction to Logic, 13th ed., p. 107, Rule 2. Such mistakes are common in FAR definitions.)

Carl claims that other people use "new requirement" the way he does. Fine, I don't doubt that, but that's not the issue. The issue at this point is what he means by the term, and I say his definition is ambiguous. That's why I posed the test questions, to show that his definition could be interpreted in more than one way, and to give him an opportunity to clear things up. Carl's responses to the test questions speak for themselves. He refuses to clear up what he means by showing us how his usage would apply in various cases.

If Carl would clear up his definition, he might find that we do not really differ all that much, and that we might be able to reach a meeting of the minds. Moreover, he might find that he has hit upon an important issue worth pursuing. Don Acquisition and I discussed that on the phone yesterday evening. If he saw the test questions as a way to clear things up, and not to trip him up, we might reach a common understanding. Too bad. If he were willing to THINK, we might be able to get somewhere.

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Vern - Your comments regarding the rejection of my definition boarders as usual on your own failure to read coherently my post and do your own research of my cited examples. You simply easily brush them aside as boorish without listening to reason and reading.

Specifically I stated that the 770 references in wifcon.com do include statute read my post! Example of one specific reference to "new requirement" is in the National Defense Act of 2006. http://www.wifcon.com/dodauth8/dod08_324.htm Other references are found in GAO Protests, here http://www.wifcon.com/pd15_206e.htm and here http://www.wifcon.com/pd9500.htm .

I suggest you quit making a red herring out of term that is widely used.

As to your reference that FAR Part 1.108(d) is a significant support to your argument I suggest you have read more into the citation than intended by the FAR Council. Specifically when the final rule was stated the FAR Council made this comment in the Federal Register. Reminder a task order or delivery order is a new contract.

"The final rule amends FAR Parts 1 and 52 to enhance a common

understanding of how the FAR is drafted. The final rule adds FAR 1.108 and amends 1.105-2, 52.101, 52.104, 52.105, and 52.200 to reflect

current FAR drafting conventions.

DoD, GSA, and NASA published a proposed rule in the Federal

Register on January 26, 2000 (65 FR 4346). Three respondents provided

public comments. The Councils considered all the comments in the

development of the final rule. The final rule revises the proposed rule

as follows:

FAR 1.108(d)(2) to clarify that contracting officers must

not award or modify contracts to include the FAR change until the

effective date of the FAR change."

Don - Yes and in such a case I would adopt the argument that Vern is attempting to apply to an IDIQ.

Carl, please take this as a constructive suggestion. Think before you post and make sure your posts are clear and concise. I have been trying to follow your logic but have a hard time doing so based on the structure of your posts. Sometimes, I just get lost trying to follow what your are saying.

Having said that, I think I am beginning to understand your position, but need clarification on some points. First, is your position based on (a) a change in statute, (:) a change in the FAR or © both? Second, is it your position that the rule of two should be considered only before issuance of orders under an IDIQ contracts that are not mandatory for use? Finally, is it your position that the rule of two should be considered before issuing an order under an IDIQ contract if the minimum order amount under that contract has been met? Put another way, the rule of two would not apply if the minimum order amount has not been ordered yet?

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Guest carl r culham

Re - Thanks for the comment, I will give a shot.

As to your questions answered in the order you have stated.

Yes, statute that results in a change to FAR.

Yes, as noted in my response to Don, where I would have a different view regarding a "requirements" contract.

Hmmm, had to think about this one just a little. My answer would be based on how the minimum is stated. If just in a dollar amount I would say you must apply the rule of two as you could simply pay the dollar amount. If the minimum was stated in the terms of services such as number of hours or the like, then I would say you would have to accomplish the minimum before moving to the rule of two.

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Guest carl r culham

So all readers understand my position please review this thread in total because I have used "new requirement" just as Vern Edwards did in his very first post to this thread. In fact his post was the place that the term "new requirement' was first used. I have thought about the question as first raised a lot and converse to what Vern says, if he were to THINK and be reasonable he might agree that he has come around to a thinking that is in alignment with my very first post.

To save you all from looking back here is Verns post of Jan 6, 2011 and I quote with bold added (interesting that this "non-issue" has generated significant discussion)-

"If an IDIQ contract was awarded in compliance with the laws and regulations then in effect, and if a new requirement is within the scope of that contract, then the requirement need not be competed except as required by FAR Subpart 16.5, which is about competition restricted to awardees of multiple award IDIQ contracts. See FAR 6.001(e) and (f). See also FAR 5.202(a)(6) and (11). If the work need not be competed, then it need not be set-aside under 19.5. There is no need to revisit the set-aside issue for work that is within the scope of a legally awarded contract.

This is a non-issue."

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Singer & Singer, in 1A Sutherland on Statutes and Statutory Construction (7th ed.), at ? 23:35, "Effect of repeal-vested rights," notes the following:

However, a right which has become vested does not depend upon...the statute under which it was acquired. It has an independent existence. Consequently, repeal of a statute...from which it originated does not erase a vested right and it remains enforceable without regard to repeal. To become vested, a right must be a contract right, a property right, or a right arising from a transaction in the nature of a contract which has become perfected to the degree that it does not depend on the continued existence of a statute.

Accord, CJS Statutes s 593 ("The repeal of a statute does not operate to impair or otherwise affect rights which have been vested or accrued while the statute was in force. This rule is applicable to rights acquired under contracts....").

Here, the vested right is the government's--namely, to issue task orders under the terms of the existing basic contract. We're once again back full circle. A contract action after repeal is not affected by repeal if that action is within scope of the preexisting contract--e.g., if the government can unilaterally require performance.

As the vested right is the government's, it could easily decide not to take advantage of it. So far as I can tell from the FAR Case, nothing suggests an overarching government policy to do so.

I've tried to understand how Carl distinguishes an IDIQ contract from a requirements one and I can't find a principled basis for the distinction. It doesn't seem to have anything to do with the rules surrounding the legal effect of repeal. While both parties have rights under a requirements contract, Carl's analysis seems to ignore the government's contractual right under the IDIQ. If a task order issued against an IDIQ contract is a "new contract" (Carl's Posts #16 & #58), it isn't clear why a task order issued against a requirements contract wouldn't be. (Perhaps his concern is specific to the Rule of Two?)

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Carl seems to think that I disagree with his definition of "new requirement." I do not, because I don't know what it is. I know what I mean by it, but I don't know what Carl means. His first use of "new requirement" is in Post #50. Read all my posts thereafter. I have never said that his definition is wrong. I have said only that it is ambiguous.

I have been trying to find out what Carl means by "new requirement" so I can understand his argument. He said he means it as I do. I don't know how he knows that, since I have never explained what I mean by it. Here is what I said, in Post #6:

f a new requirement is within the scope of that contract, then the requirement need not be competed except as required by FAR Subpart 16.5....

I'm a contracts guy. To me, a "new requirement" is a new procurement request (requisition, purchase request). ("We got a bunch of new requirements today.") But a new requisition is not necessarily for new work. "New work," as I use it and as the boards, the GAO, and experts in government contracting have used it for many, many years, is work that is out-of-scope. See Post #43. A new requisition can be for within-scope work or for new work. Why is this important? Because I say that if a "new requirement" (new procurement request) is for within-scope work, not "new work," then it is not subject to the Rule of Two. Law, regulation, and tradition are on my side, as I have shown.

If it's true that Carl uses "new requirement" the same way that I do, and if he thinks that all new requirements (new procurement requests) are subject to the Rule of Two if they are being considered for order under IDIQ contracts (not requirements contracts), then I think he is demonstrably wrong. But if he defines "new requirement" differently, then perhaps we do not irreconcilably disagree. I do not think he meant it the way I do, which means there is hope. But I don't know.

I've aggravated Carl, so instead of working to understand one another he is dodging the ball by responding to questions with questions. I wish he'd settle down and try to work this out like the reasonable man I think he really is. I think he's on to something important that ought to be discussed (it was hinted at in the exchanges between Don and me), but we're not going to get to it this way. Too bad, because since Don and I recognized what we think the real issue is, I have been kind of excited.

Jacques--I think I now understand why Carl (apparently) limits his rule to IDIQ contracts, but I don't think he does, not clearly anyway. And if what I think is bothering him is what in fact is bothering him, then he and I may be on the same page. But he'll either figure it out or he won't.

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Carl,

I'm having the same problem with your argument as Jacques:

I've tried to understand how Carl distinguishes an IDIQ contract from a requirements one and I can't find a principled basis for the distinction. It doesn't seem to have anything to do with the rules surrounding the legal effect of repeal. While both parties have rights under a requirements contract, Carl's analysis seems to ignore the government's contractual right under the IDIQ. If a task order issued against an IDIQ contract is a "new contract" (Carl's Posts #16 & #58), it isn't clear why a task order issued against a requirements contract wouldn't be. (Perhaps his concern is specific to the Rule of Two?)

The repeal of the statute either applies to future orders or it doesn't--it has nothing to do with whether the underlying contract is IDIQ or requirements. If the repeal applied, an agency with an IDIQ contract would have to stop issuing orders under the contract or terminate it (if they hadn't met the minimum). If the agency had a requirements contract, they would have to terminate it.

To be persuasive, I think you need an actual example to support your argument--a decision, a statement of policy, something. Your argument is logical, but your premise seems too made up.

-Don

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With reference to Post # 46, since the content discussion has moved along so much, this post is about tone rather than content. It appears that others share this view, and our host has weighed in.

My absence was not due to moping, but a combination of factors: snowed at work with too many half-days (12 out of 24), preparing to move (in my time "off"), and finally wondering why I bother to post here when abuse continues, even in posts which deny that they are abusive.

Please think about "piling on" and "unnecessary roughness." Please consider whether calling somebody (anybody) "too sensitive," speculating that somebody is "moping," and especially your last paragraph, add any real value to the discussion or just gratuitous sarcasm (abuse). Please consider whether the post cited above discusses the issues at hand or goes directly to personalities in an "I'm OK; you're not OK" kind of transactional analysis.

The sermon I preached about manners fell upon deaf ears, so I won't preach about a related subject: respect.

So if the good folks on this forum do not see me posting much, it's not that I'm avoiding debate, which I find stimulating, or moping, which is not how I am. It's because it's no fun to go into a debate expecting civil treatment and instead getting abuse. Who needs it?

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Oh, cajuncharlie. I don't think it's bad manners to tell someone that they are wrong. But I will take your comments to heart about calling you too sensitive and saying that you are moping. I apologize for saying those things. I do not apologize for saying that you were wrong.

All: I think that what is bothering Carl, and the reason he restricts his principle to IDIQ contracts, is the fact that so many such contracts contain very broad statements of work,so broad that it's hard to say that any work is out of scope. That's the problem mentioned by the GAO in LBM and in it's famous "Valenzuela" letter. I think that's a legitimate concern, but the legitimacy of that concern does not support Carl's argument, and his application of his principle is inconsistent, which is what is bothering Don and Jacques.

Carl's concerns, if I have them right, are legitimate and warrant action by the FAR councils. (Good luck with that.) But the way to address them is to say that if an IDIQ or requirements contract is so broadly written that prospective offerors could not reasonably be expected to know that specific work would be covered in the future, then the work is out of scope, is new work, and is subject to competition, synopsis, and set aside. Thus, a broad statement of work should be interpreted restrictively, rather than broadly. That approach retains the within-scope vs. "new work" distinction and principle that is well-established in law and regulation, eliminates the inconsistency in Carl's application, and solves what I think is a real problem. That, I think, is how GAO should have handled LBM.

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Carl... To be persuasive, I think you need an actual example to support your argument--a decision, a statement of policy, something. Your argument is logical, but your premise seems too made up.

-Don

Don:

I'm surprised to see you say that Carl's argument is logical. A logical argument includes a major premise, a minor premise, and a conclusion that follows from the premises.

All men are mortal.

Socrates is a man.

Therefore, Socrates is mortal.

An argument is valid, i.e., logical, when, if the premises are true the conclusion must be true. An argument is true when, if the premises are true the conclusion must be true, and, in fact, the premises are true.

Carl has presented us with a conclusion: the repeal of the statute prevents further use of the IDIQ contract. Fine, but what are his premises?

Carl's conclusion is perhaps appealing to some, but it is not logical, because he has not articulated clear premises from which his conclusion follows. Only when we have a valid argument can we proceed to determine if the argument is true.

I do, however, think that Carl's comments point to a genuine problem with all task and delivery order contracts -- which include both IDIQ and requirements contracts -- that ought to be addressed. It may also point to problems with the exercise of some contract extension options.

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Aah, Wikipedia...

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Joel:

One of my favorites: Zegarelli, Logic for Dummies (2006). I keep it on my nightstand. B)

But the Wiki entries for logic and syllogism are very good.

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Vern,

I understand Carl's primary argument as follows:

Major Premise: The repeal of a law affects all future requirements under nonmandatory contracts.

Minor Premises: 1. alexreb's contract is a nonmandatory contract.

2. The Small Business Comp Demo Program has been repealed.

Conclusion: Therefore, the repeal of the Comp Demo program will affect future requirements under alexreb's contract.

That's logical, but his major premise is questionable. He has not proven that to be true. His argument for that, at this point, seems to go as follows:

Major Premise: ?

Minor Premise: ?

Conclusion: Therefore, the repeal of a law affects all future requirements under nonmandatory contracts.

That argument is not logical.

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