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Vern Edwards

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Everything posted by Vern Edwards

  1. Bob posted a July 2 announcement from the Office of the Undersecretary of Defense: "Organizational Name Change to Defense Pricing, Contracting, and Acquisition Policy" "Synergies" my foot. Sounds like Madison Avenue b.s. API will be just another bureaucracy. Is API going to tell Congress to ease up on the legislation and the president to hold off on the executive orders? No. Are they going write better regulations and "guidance"? Well, let's give them a chance. But probably not.
  2. See also Health Services Marketing Corporation, B-241183, 1991. Such protests have happened, but appear to be very rare.
  3. See Process Control Technologies v. U.S., 53 Fed. Cl. 71 (2002), concerning the cancellation of an 8(a) sole source set-aside because the price was too high. I think this was really a claim, but the court said it was a protest of the competitive procurement that followed. Excepts: I think the agency ended up buying from Lockheed. Not sure.
  4. @Drewj Novation is one of the most confusing topics in government contracting. Prepare yourself. You may get a hurricane of confusing responses to your inquiry. The personal experiences with various agency offices of the people who are going to respond to you will likely be all over the map. Here are some professional websites (attorneys, consultants) that might be of help. The sheer number of such websites should be taken as a hint as to how confusing the process can be—to both contractors and government personnel. Good luck. "Novation Agreements Under Federal Contracts" https://www.contractorsperspective.com/contract-administration/novation-agreements-under-federal-contracts/ "Novation and Recertification Requirements: A Post-Closing Guide for GovCon M&A Deals" https://www.pilieromazza.com/novation-and-recertification-requirements-a-post-closing-guide-for-govcon-ma-deals/ "More Novation Complexity In Gov’t Contracts M&A?" https://www.insidegovernmentcontracts.com/2018/12/more-novation-complexity-in-govt-contracts-ma/ "Novation and Change of Name Agreements" https://www.cbh.com/guide/articles/novation-and-change-of-name-agreements-guidance/ "Contract Novation Agreement: Everything You Need to Know" https://www.upcounsel.com/contract-novation-agreement "CAN YOU SELL A GOVERNMENT CONTRACT: ASSIGNMENT, NOVATION, CHANGE OF NAME AND ASSIGNMENT OF CLAIMS" https://publiccontractinginstitute.com/can-you-sell-a-government-contract-assignment-novation-change-of-name-and-assignment-of-claims/ "Novation Agreements – Prime U.S. Government Contracts Whitepaper" https://info.redstonegci.com/en-us/whitepaper-novation-agreements-prime-us-contracts
  5. Break the study into logical phases. Award a contract for the first phase that includes priced options for each of the subsequent phases. Coordinate the conduct of each phase with your CPFF contract funding schedule. Require submission of a results/status report at the end of each phase.
  6. @Voyager I wasn't criticizing your post. I was reacting to the fact that an outfit like Mitre is publishing guides to bid protests. I once (long ago) handled contracts with them for research pertaining to re-entry vehicles, i.e., nuclear warheads.
  7. It appears that you plan to change the scope of the contract. You must either exercise the option as is and then partially terminate the contract or modify the option before you exercise it. If the partial termination or modification changes the scope of the contract as originally competed (a "cardinal" change), then you may face a protest from one of the original competitors seeking a new competition for the option work. See Poly-Pacific Technologies, Inc. GAO Decision B-296029, June 1, 2005: Cited and briefly discussed by the Court of Federal Claims in Golden Mfg. Co. v. U.S., 107 Fed.Cl. 264, 274-276 (2022). See also "Postscript: Deductive Changes Outside The Scope of the Contract", The Nash & Cibinic Report, October 2005. To the best of my knowledge the GAO has not changed its stance on this.
  8. Dear God. We are all victims of the lawyerification of American society. Lasciate ogne speranza, voi ch'intrate.
  9. Well, the Supreme Court is what it is, whatever that is today. And Congress has written lots of laws that became litigation factories. If you are a contract specialist, a contracting officer, or a contracting officer's representative who did some business with a contractor, and it brings or sends you a gift𑁋in my day it might have been a company calendar with cool photos of aircraft, ships, launch vehicles, or spacecraft, or a Cross ballpoint pen with a company or program logo𑁋you are effectively accepting a tip. Who receives tips? Servants. In negotiating the deal did you think of yourself as a serving the contractor or as performing a professional task for the United States? Don't accept ANYTHING from a contractor as thanks for being cooperative or helpful in doing a deal𑁋not a calendar, not a pen, and not a "consulting" job, not if you have even just a modicum of professional pride.
  10. @ArmyofOne My answer is that you must include all in your tradeoff analysis, but in your scenario the tradeoffs are simple. Here is your scenario, using numerical scoring of the nonprice factors on a 0 to 100 point scale for the sake of simplicity. The numbers symbolize overall value, considering both strengths and weaknesses. Two offerors with the same score are indistinguishable in terms of overall value, regardless of the specifics of their proposals. Offeror A 80/100 points $1,000,000 Offeror B 80/100 points $1,250,000 Offeror C 70/100 points $1,100,000 All are "technically acceptable". Compare A to B (your No. 1). Since they are essentially the same, technically speaking, and B is more expensive, B is eliminated immediately. Why would you choose B? Why pay more for the same value? Document your analysis and explain your conclusion. Compare A to C (your No. 2). Since A is technically superior and has a lower price, there is no tradeoff to be made. C is eliminated immediately. Again, why would you choose C? Why pay more for less value? Document your analysis and explain your conclusion. You have made nonprice/price tradeoffs when comparing A to B and to C, but in your scenario the tradeoffs are very simple. Now suppose there is an Offeror D, 90/100 points $1,100,000. D is technically superior to A by 10 points, but would cost $100,000 more. You must determine what good things you would get from D that wouldn't get from A and then determine whether that difference is worth the extra $100,000, which is a judgment call, and depends on the relative importance of technical and price and the magnitude of the differences. Document your analysis and explain your conclusion. You should do some reading about tradeoff analysis. Try Decision Analysis for Management Judgment, 5th ed., by Goodwin and Wright (2004). And read this: Even Swaps: A Rational Method for Making Tradeoffs https://www.researchgate.net/profile/Ralph-Keeney/publication/13119982_Even_Swaps_A_Rational_Method_for_Making_Trade-offs/links/02e7e52f52123c0af0000000/Even-Swaps-A-Rational-Method-for-Making-Trade-offs.pdf
  11. If you want to know how top notch (i.e., high quality) bureaucracy works at the highest levels, I highly recommend Secrets: A Memoir of Vietnam and the Pentagon Papers (2003) by the notorious Daniel Ellsberg, who disclosed the Pentagon Papers to the New York Times and the Washington Post and who died last year. It is a very great book. Extremely well written. Ellsberg worked at the highest level within the Pentagon and in the field in Vietnam. It's a thriller and a shocker. Ellsberg was a war hawk at first, but changed his mind when he saw first-hand what was going on in the Pentagon and Vietnam. He was a superb observer. His insider revelations about how the war started and progressed stunned me. Available in hardcover, paperback, Kindle, and audio book. Essential reading for anyone who works in the bureaucratic world and wants to know how that world really works. If you and your boss disagree on a prospective policy, and if your boss invites you to go with her to a meeting with her boss, and if her boss asks your opinion, do you say what you really think and lose your boss's confidence, and maybe your job, or do you support your boss's position?
  12. @here_2_help I know what ATS is. I don't see how that's relevant. I don't agree with you. What on earth does "significant hesitations" mean? I suspect there are almost always hesitations about litigating. How much will it cost? What if we lose? And why do you bother to tell me that you agree that an expedited procedure is available? How could you not agree? The procedure is published and is common knowledge. I don't need your assurance. In any case, what does hesitation to litigate have to do with my inquiry? Go back and read my questions. They were not about game theory.
  13. The decision opens the door to protests by prospective subcontractors based on government acquisition strategy decisions.
  14. I would have set up a Part 13 BPA and let the COR call for mowing, etc., when necessary. I don't know why they needed a one-year contract with five one-year options. According to the solicitation they wanted only 18 mowings per year.
  15. I think the problem is practical. I think that most COs lack the knowledge of managerial accounting and government cost principles and cost accounting standards they would need to confidently argue with DCAA. They are offered a lot of opinions, and there are plenty of books, but even then COs lack the practical know-how they would need to be confident in their positions. And their bosses are often unwilling to resist DCAA recommendations for similaer reasons. Going with DCAA is safe. If you go against you have to be prepared to make an argument that you may not have the know-how to make.
  16. @here_2_help Your imagination needs a booster shot. You don't need a lawyer to go to a board of contract appeals, and there is a small claims (expedited) procedure. See the ASBCA's 2023 nine-page decision, American Technical Services, iInc., ASBCA Nos. 6354 and 6355, in which the contractor sought $12,728.68 and the Government sought $36,661.93. (The government withdrew its final decision and claim and the Board declared it to be moot.) The board denied the contractor's appeal. It took me all of two minutes to find that online after I read your post. There are plenty of small claims. Maybe, to borrow words from Bob Dylan, your imagination in this regard is "limited and underfed".
  17. From Government Contract Disputes § 4:9 Contracting Officer's Independence:
  18. All, I appreciate your responses. What I've been wondering is whether the government is engaging in too much litigation. I've been reading a lot of solicitations, and many of them are badly written. The government likes to award "without discussions," which means that the parties get little chance to talk things over before contract award, clear things up, and reach a true meeting of the minds. When conflicts arise, contractors may face unreasonable CORs. The CO may be located far away and unengaged. Disagreements arise and then comes an REA that leads to a claim or the disagreement goes directly to a claim. I think COs may feel compelled to deny the claim, to "support" the COR and "fight for the taxpayer," which results in litigation. We don't really know the cost of all that litigation (almost a thousand board decisions per year). Litigation increases the total annual cost of supplies, services, and construction. I think there is every reason to believe that much of that litigation is wasteful, even when the government wins. That's why I wonder whether it might be cheaper in the long run to settle and pay rather than litigate, even if the CO thinks they're right. I wonder if the CO should consider the costs of litigation before denying an REA or a claim. Is the CO obligated in some way to issue a final decision, deny a claim, and fight when he or she thinks they are right? Are they obligated to fight even if they think the fight would cost more than it's worth? Should COs weigh and balance the likely cost of litigation against the cost of settling when making a decision? Should they back off a final decision that they made if the contractor decides to appeal and the litigation would cost more than the settlement. There are people wondering if FAR should make a clearer policy statement about that in order to give COs some support. Something like: COs should [or may] weigh the cost of litigation against the cost of settlement before making a final decision to deny a request for equitable adjustment or a claim. Again, I appreciate your responses. Vern
  19. @joel hoffman Does that mean that the CO has authority to pay a claim on the grounds that (1) the contractor is likely to appeal a final decision that denies the validity of the claim or the amount sought, (2) the outcome of litigation is uncertain, and (3) paying is likely to be less costly than litigating?
  20. Those were my questions. Yes or No would work as answers. Yes or No with comments or explanations are welcome.
  21. All socio-economic programs and contract terms are political. They are designed to serve and to please certain political constituencies. They are the products of political thinking and striving. Those are facts of life in government contracting.
  22. The same as the first lawyer. "The board might find the spec to be ambiguous."
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