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Vern Edwards

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  1. This may seem like a trivial question at first glance, and to a knowledgeable person it is. But one must know several things in order to answer it coherently and persuasively 𑁋things bearing on the case and the rules that are not taught in typical contracting courses and not obvious𑁋and be able to put that knowledge together and reason effectively. And in order to learn what must be known, one must rigorously self-interrogate and then do some research and systematic thinking. It's a heck of a good learning opportunity. One would learn things one must know to answer much more important questions. I'm tempted to offer an answer, but too busy now. Concepts, principles, processes, and procedures.
  2. https://www.law.gwu.edu/government-procurement-courses-and-degree-offerings See also George Mason University. Florida Institute of Technology. https://www.fit.edu/programs/acquisition-and-contract-management-ms/ There are a few others. Search!
  3. Sorry for the edit while you were posting, Retread. Au revoir.
  4. @Retreadfed Allowable, eligible... Whatever. 😀 It doesn't change my explanation of the DODIG's and the GAO's simile that a UCA is "effectively" like a cost-reimbursement contract until definitization, which explains why Congresss placed statutory limits on them. We use a lot of similes to explain things to people in our business. Remember when some people insisted that a T&M contract was a kind of cost-reimbursement contract. That was not even close to being true. Vern, is leaving the building. Going to France on Monday to spend a month on the Seine and the Loire in Spring. Y'all carry on.
  5. No, the clause doesn't mention the cost principles, and I don't think I cited Part 31. (I see a quote box for me in your post, but no quote.) But see DCAA 17500 Audit Program for Progress Payment, Cost AP, Item 8: Emphasis added. https://www.dcaa.mil/Portals/88/17500 Audit Program for Progress Payment Cost AP.pdf?ver=1DtDHZB6nPAH_hdDTBOkgA%3D%3D See also DCAA CAM 14-200 Section 2 Audit of Progress Payments, 14-201 a.; Emphasis added. And see 14-202.1 d.: Emphasis added. The contractor will ultimately be paid the full contract price for acceptable performance, but, apparently, progress payments include only allowable costs pending liquidation. At least, that seems to be DCAA's position and has been my understanding. Maybe DCAA has a different definition of "allowable". https://www.dcaa.mil/Portals/88/Documents/Guidance/CAM/Chapter 14 Other Contract Audit Assignments.pdf?ver=CF-j6io9SKfawNSSXQpCwQ%3d%3d
  6. I assumed it is common knowledge because I often falsely assume that contracting "professionals" understand self-interrogation. (Question: Why a UCA for a commercial item?) This thread is off the rails, as often happens at Wifcon Forum. Let's not forget the questions that started it. I presume that the first question has been answered. What about the second and third question? As to the second question, it is not a matter of "de facto authority". (Authority is the last refuge of the helpless.) It is a matter of business smarts. DFARS 217.7404-6 states: That is an instruction about how to negotiate. Why the instruction? It's there for the clueless. Smart, competent COs negotiating the definitization of an FFP letter contract would do that as a matter of course, as a matter of profit policy and commonsense business practice, because they know that before definitization an FFP letter contract "effectively" works like cost-reimbursement contracts, and they can explain why and how that is the case. And because some savvy contractors will take advantage of government ignorance and incompetence, while others are simply resigned to government slow motion. Smart people negotiating a UCA for the first time engage in self-interrogation, determine what they do and do not know, and then research and study like heck. But those persons seem to be rare. It seems that some people have never heard of Google Books and Google Scholar. Some people don't search DTIC. They spend their spare time watching "Ted Lasso" and "Monarch: Legacy of Monsters". (I liked "Lasso", but "Monarch" is for idiots. "Godzilla Minus One", on the other hand, is sheer genius, but it's not streaming yet.) So if you are negotiating an FFP contract price the guidance to the clueless is, first, to reward the contractor's assumption of risk with higher profit than you would agree to under a cost-reimbursement contract, but, second, if the contractor has incurred "a substantial portion" of the total cost by the time the letter contract is definitized, while the UCA functioned like a CPFF contract, then the contractor has not faced as much risk as it would have under an FFP contract and should not be rewarded with FFP-level profits. It's not about "de facto authority", it's just commonsense business practice. Wonder why we have so much regulation? Look around you. Okay, I hope that takes care of questions 2 and 3. Question 4 does not deserve an answer. This isn't high school. BTW, if you really want to understand the DODIG's concern about UCAs, go to Google Books and search for: "Acquisition Reform-1986." It's a transcript of a HASC hearing. Download it and then read pages 1-47, which are devoted to UCAs. Plenty of good background. (Question for the self-interrogators who cultivate curiosity: Why does the DFARS say that change orders are not UCAs?) The FAR is not a textbook. Most of the textbooks devoted to the practical sides of government contracting are legal hornbooks, like Formation of Government Contracting. They don't address and explain practical matters in any depth. You have to be able to gather info, put ideas together, think things through, follow the logic, and determine logical consequences. Competence is not handed to you on a platter. We old-timers have failed the younger folk to the extent that we have not taught them how to think things through, and to the extent that we have engaged in too much hand-holding. Knowledge and competence are the products of career-long struggle. Forgive any typos. I can barely see my screen.
  7. @Retreadfed No. That's not what I said. I said: Just like under a change order. Assume an FFP letter contract. The contract must contains 52.216-24 and 52.216-25. The -24 clause limits the government's liability if the contract is terminated. The -25 clause prescribes a procedure for definitization, requires the contractor to submit a proposal, and, if the contract was awarded based on price competition (which in my experience would be unusual), a maximum negotiated price, assuming that the contract is not modified prior to definitization. Presumably, the contractor will want some kind of revenue flow during performance unless its is willing to provide its own financing. So it seeks progress payments based on costs, which will be anchored to the Government's maximum liability. See 52.232-16. At the time of award, the contractor is not obligated to complete the work for any specific amount, because the contract is undefinitized. So the contractor starts working, starts incurring costs, and eventually submits a proposal, which has been delayed due to government changes. The government initiates an audit and starts price analysis. The contractor submits a revised proposal, while still incurring costs, and the government has had to increase its maximum liability because it has changed the contract a few times. Oh, and all the while indirect cost rates are being adjusted. All of this is why Congress enacted legislation to try to limit and control the use of UCAs. See 10 USC 3371, which is why DFAR 214.74 exists. And don't forget the PGI 217.74. And all of that is why the DOD IG said what it did. Honest to God, I thought all this was common knowledge. BTW, here's the GAO in 2007: Here's from the Congressional Research Service in 2020: @FrankJon You're no newbie. You've been a member of this forum since 2016. Do your own research. (Heard of Google or Google Scholar?)
  8. From the IG report: Emphasis added. What don't you understand about that? UCA is "essentially" a cost-reimbursement contract because it is undefinitized as to price. The contractor works pending price agreement and will be entitled to compensation for allowable costs incurrred until the parties reach final price agreement. For more info, see this: https://apps.dtic.mil/sti/tr/pdf/ADA432582.pdf and this: https://www.gao.gov/products/gao-07-559
  9. @EZK81For an illustration of how price realism might work in the competitive placement of an order against a GSA schedule contract, see the GAO's bid protest decision in the matter of ManTech Advanced Systems International, Inc., dated August 14, 2023. To find that decision use the link below or go to Google or some other search engine and search for B-421560.4. The pertinent part of the decision with respect to your question is on page 4. https://www.gao.gov/products/b-421560.4
  10. The "By placing an order" pricing language has been in the FAR 8.404 since 1997.
  11. Depending on the text of the RFP, the lowest price of the range might not have been a limit. It might just have been the lowest price received. And if the agency had asserted that the lowest price of the range was a "limit" if might have been in trouble if the RFP had not stated that price realism would be an evaluation factor.
  12. I found the phrase "competitive price range" in 25 GAO protest decisions ranging from 1962 - 2019, and in one COFC protest decision from 1999. I found the phrase "reasonable price range" in 15 GAO decisions, ranging from 1955 - 1994, and in four COFC decisions, 1991 - 2024. I did not read any of the decisions.
  13. I agree. But is award of orders by rotation a competitive procedure? (Is rotation the same as, or a type of, "allocation"? See FAR 16.505(b)(1)(ii)(B).) And since DEA awarded only one BPA per geographical region they must have awarded orders without comparing competitive quotes. If so, was that a competitive procedure? Was it maximum practicable competition? Logan's (aka Envirosolve) attorney was a single practitioner. Their name appeared as representing a protester in only nine GAO decisions, all between 1999 and 2017. In one of those nine they represented an intervenor. In three of them they represented Logan versus the DEA. Of the nine protests only one was sustained in full (one of the Logan cases), and one was sustained in part (involving a different client). They represented two clients in three COFC protests between 2004 and 2007. They succeeded only once, partially, on a motion for discovery. They represented six clients (including Logan (as Envirosolve) in 20 BCA cases, in seven of which they represented the same client and in six of which they represented another client. The outcomes were mixed. Several were settled before coming before the board. I did not read them all. I cannot help but wonder how Logan might have fared had they hired an attorney with extensive bid protest experience. What issues and arguments might a more experienced protest attorney have presented based on facts we don't know about? Also, the impression I have of GAO is that it does not always have a lot of patience with inexperienced lawyers. Be careful not to read too much in, and rely too much on, a single GAO decision that has never been cited on-point after eight years. But feel free to innovate experiment. 😀
  14. Unless I missed something, all Logan boils down to is that if you conduct a competition to establish BPAs and get competitive quotes, you don't have get new quotes from the BPA holders for each order. You can just use the quotes you already have. That strikes me as nothing more than common sense. I presume DEA included price lists in each BPA and that the work was fairly standard from one order to the next. Were the BPAs in Logan agreements or contracts? Take a look at footnote 4: Did the agency obligate funds to cover the minimum? There were untimely protest issues that the GAO did not consider. See footnote 6. There may have been protest issues that were not raised. I don't like the Logan example because I think conducting competitions is a lot of work and protest-risky. Protests cost money and delay awards. We know that competitions under FAR Part 13 have generated sustained protests largely due to needless use of FAR Part 15 procedures. In 2006 JAN Army Law 9 (2008), in a description of the Logan decision, the author, a Lieutenant Colonel, described the DEA's BPAs as "noncompetitive." He did not explain why. Maybe he was thinking that BPAs were competitively established but that the placement of the orders was done without competition, which appears to have been the case. No need for new quotes, but shouldn't the quotes have been compared before awarding orders? It appears that they were not. The GAO dismissed that thought with a couple of simple sentences: Why not? I think that is a questionable statement. GAO might rethink that in dealing with a protester armed with experienced lawyers from a large firm. But if, as ji20874 suggests, an agency has top-notch people to think through and work out potential issues, plot a good course, and steer the thing through the rocks and shoals, they should give it a try. Experiment, by all means. What do you have to lose?
  15. The decision by GSA to adopt the term "BPA" in connection with schedule contracts created a lot of confusion. Before his death in 2005, Professor John Cibinic criticized that decision in "Contracting Methods: Square Pegs and Round Holes," The Nash & Cibinic Report, September 2001. I think that conducting competitions for the "award" of SAP BPAs is a needless complication of simplified acquisition. It is not clear to me what practical advantage there is in such a process. I think GSA's hijacking of the term has poisoned the well of common sense. But I am open to be educated.
  16. Yes. I'm talking about FAR Part 13 SAP BPAs, not the GSA FSS 8.405-3 things ("Schedule BPAs"). Under the terms of 31 USC 3551 and FAR Part 33, protests are complaints about contract actions. See GAO's protest rules, 4 CFR 21.1(a): Emphasis added. SAP BPAs are not contracts. Moreover, synopsis of a competition for multiple SAP BPAs does not free an agency from the statutory requirement to synopsize "each" contract action conducted thereafter. Any prospective order (or "call") against a SAP BPA that meets the criteria in FAR Part 5 must be synopsized. The existence of a SAP BPA provides no exception. However... Practice generally precedes regulation, and many new practices are based on faulty interpretations of the regs. I do not doubt that buyers today are using SAP BPAs in ways that the regulations do not contemplate. Anyway, I am still in the dark about what ji20874 and Don like so much about Logan with respect to BPAs. To me, what it says about maximum practicable competition is just a common sense reading of the FAR. Under Part 13, competitive quotes are competitive quotes, no matter how you got them. Having received competitive quotes through its (seemingly) pointless BPA competition, the agency did not have to get new quotes when placing orders against the BPAs. Big whoopee. (Apparently, the BPAs included prices. Agencies have been issuing "priced BPAs" since I entered contracting in 1974. They did that in order to permit no KO "ordering officers" to place calls without having to determine fairness and reasonableness.) I suspect that the agency in Logan may have been confused about the difference between SAP BPAs and Schedule BPAs. Another Wifcon wild diversion.
  17. I think establishing BPAs competitively might make you vulnerable to protests when you place orders ("calls") against the BPAs. Is rotating vendors consistent with competition? How do yo explain paying a higher price just because someone has come up on rotation? If you're going to do that, what was the point of the original competition? And remember, an order against a BPA is contract action, and each one that meets the criteria in 5.201(b) must be synopsized. I don't think you can restrict the competition to BPA-holders. A SAP BPA is just a charge account. It is not a contractual instrument.
  18. Well, if you're going to conduct competitions for SAP BPAs when you don't have to, why not conduct new competitions when they expire? BTW, I do not think GAO has protest jurisdiction over actions to establish or extend BPAs. See 31 USC 3551 and the definition of protest in FAR 33.101. Logan was not about the establishment or extension of a BPA.
  19. Why use competitive procedures to establish multiple BPAs? Why not just do market research and then enter into BPAs with vendors you like? Then seek competitive quotes from them. Maximum practicable competition is not full and open competition. Again... A Part 13 BPA is just a charge account, a billing arrangement. That's all it does for you. It's not a contract.
  20. I don't understand what there is to like so much about the Logan decision. That decision has been cited only four times, and never about the BPA competition issue. A few agencies have established priced BPAs for decades. Logan is just common sense in such cases. And I don't understand how the Logan decision answers my question: Why synopsize a competition for BPAs when such competitions are not contract actions? What would it do for you? Clue me in, fellas.
  21. Why would they synopsize it? You must synopsize only contract actions, as defined in FAR 5.001. An action to create or extend a BPA issued under FAR Part 13 is not a contract action.
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