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Vern Edwards

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  1. The confusion about proposal/offer is the product of how the concept of "negotiated procurement" developed in government contracting after World War II and the Korean War emergency. I'll describe it one day for a Wifcon article. There were two factors. First, no one knew what "negotiated procurement" meant in practical terms other than that it was any kind of procurement other than "formal advertising" (now "sealed bidding"). Second, was the concept of "proposal" which emerged from weapon design competitions. It's an interesting story, but too hard for me to write now due to my eye problems.
  2. No. But somebody wrote about that more than 20 years ago, making that very point.
  3. @LeighHar Wait a minute! What are you pricing? A new subcontract or a subcontract modification? Does your contract with the government include the clause at FAR 52.215-12 or -13? If so, is the sub's proposed price greater than the TINA dollar threshold when you signed your government contract? What I want to know is whether your government contract requires you to obtain certified cost or pricing data from the sub in this instance. I am unable to determine that from your posts. If you want a further response, please answer my three questions.
  4. See STG International, Inc. v. U.S., COFC Nos. 23-47C; 23-175C, May 24, 2023. I have long argued that there is a distinction between offers and proposals. Offers are sets of promises to act or refrain from acting in a specified way, so made as to communicate a willingness to enter into a bargain. Proposals, despite the stupid definition in FAR 2.101, are packages that presumably contain (1) offers and (2) mere information. The COFC protest decision demonstrates that fundamental idea in a dramatic way. A link to that decision was posted on the home page today.
  5. See Cibinic and Nash's discussion of Contracts Varying from Statutory or Regulatory Requirements, Unauthorized Variances, in Formation, pp. 72 - 75: When I entered the contracting field, Formation of Government Contracts and Administration of Government Contracts were foundational textbooks. You would see them on the bookshelves of many COs. Not today. Most government offices won't buy it for their trainees, and most government personnel won't spend their own money for it. I will go so far as to say that if you are a contracting "professional" and don't own and read those books, then you are engaged in a battle of wits, and you are unarmed. Invest in your career. Then, get with a few of your colleagues and form a reading and discussion circle.
  6. Ratification applies to authority issues. It does not apply to compliance issues regarding procedure or contract content. You cannot ratify a commitment that, had it been made by a contracting officer with requisite authority to make that kind of commitment, would have been illegal because the contracting officer did not comply with a law regarding procedure or contract content. It's very, very simple. Read Cibinic and Nash, and think. You ratify unauthorized commitments, not improperly made and written commitments. It's just someone who has authority approving after the fact an act of someone who did not.
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