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Vern Edwards

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Everything posted by Vern Edwards

  1. A more recent and expansive decision to read in support of Carl's point is Noble Supply & Logistics, B-418141, January 6, 2020.
  2. @Guardian I wouldn't say I was considering price unless I was prepared to say what I meant by "considering." Of what would considering consist? As I recall, there are no mandatory evaluation factors when placing orders under FAR Subpart 8.4. (Am I wrong about that?) If price is not a mandator evaluation factor, then I think you may eliminate a firm in Phase I without considering or evaluating price. But you say you will evaluate price in Phase II, and it sounds like you intend to make a tradeoff decision. That might cause some confusion. Why eliminate someone in Phase I without considering price and then consider price when selecting the "winners." You had better think that through and explain what you intend to do clearly in the RFQ. Otherwise it might not make sense to a protest tribunal.
  3. @Guardian You are right that I have used "consider" and "evaluate" with reference to price or cost, but I am not aware of having intentionally used them with reference to distinct processes. I have looked at hundreds of protest decisions, and my observation is that the GAO and COFC seem to use the terms interchangeably. I have found nothing in any decision that leads me to believe that either tribunal understands the terms to refer to distinct processes. I checked with some knowledgeable people and they were not aware of any distinction in the protest decisions. I long thought that talking about price "evaluation" was odd phrasing. I think of "evaluating" as assigning a value to something, and it does not make much sense to me to say that we're going to assign a value to price. I tend to think of analyzing a cost or price in order to determine or decide whether it is fair and reasonable or realistic. But FAR 15.304(c)(1) says, "Price or cost shall be evaluated in every source selection"; FAR 15.305(a)(1) refers to the evaluation of cost or price; and FAR 15.404-1(a)(1) says, "The contracting officer is responsible for evaluating the reasonableness of the offered prices." Bottom line: I don't know of any case law principle to the effect that there is a distinction between considering cost or price or evaluating cost or price. But you have given me something to think about.
  4. @Guardian Would you please cite a decision in which the Court of Federal Claims, the Federal Circuit Court of Appeals, or the GAO has made a distinction between "considering" price and "evaluating" price?
  5. Reading the foregoing, I am reminded of two lines from the last stanza of Tom O'Bedlam's Song: "With an host of furious fancies, Whereof I am commander, With a burning spear and a horse of air To the wilderness I wander. By a knight of ghosts and shadows I summoned am to tourney Ten leagues beyond the wide world's end: Methinks it is no journey." 🤗
  6. @DCDOD2020 Firm-fixed-price. You should use a firm-fixed-price contract when you can specify the work you want done and you and the contractor can agree on a fair and reasonable price. The government pays the stipulated price when the work is completed acceptably. Firm-fixed-price level-of-effort term. You should use a firm-fixed-price level-of-effort term contract when you want something done, but there is no natural beginning and end to the job. You might want a contractor to observe some natural or man-made phenomenon for some period of time and report its observations. Such a study might entail the work of one or more persons and go on for years. The purpose of the combined level of effort and term is to set the scope of the project, which otherwise would have no inherent boundaries. For example, you might want ornithologists to observe and report the social behavior of bald eagles in the Columbia River Gorge between the Wind River estuary and The Dalles Dam during the period 1 December 2020 through 28 February 2021. You agree with the ornithologists to a level of effort---a number of hours of observation---that is to be delivered during that period of time. You might also agree on the number of observers and the places, hours, methods, and standards of observation. The combination of the level of effort and the term establish the scope of the project. The government pays the stipulated price upon completion of the level of effort, performed acceptably throughout the term, and the delivery of a report. While this type of contract is typically used for research, its use is not strictly limited to research, except, perhaps, by individual agency policy. And while the level of effort is commonly expressed in terms of hours, other measures and units of effort can be used Labor-hour. You should use a labor-hour contract when you know the result you want the contractor to produce, but the two of you cannot estimate how long it will take and how much it will cost to achieve the result, because you are not sure what work the contractor will have to do to achieve it. An example might be the repair a malfunctioning item of complex equipment when you don't know what's wrong with it. You and the contractor agree to hourly labor rates, a ceiling price, and a period of performance. If the contractor reports that it cannot complete the repair within the ceiling, you can increase the ceiling and require the contractor to keep working at the agreed hourly rates until the period of performance expires. The government pays the stipulated labor rates up to the ceiling price for the actual hours of work used to complete the work acceptably. Summary. Confusion and conflict about the appropriate use of those three contract types is not uncommon. It is generally the result of (1) poor training and (2) not thinking things through. Proper selection and use is part of the practitioner's art. @General.ZhukovGeorgy, Do you know you were promoted to Marshal?
  7. I agree with Carl about the utility of mentors. But my idea of a mentor is someone who provides sage advice, not direction or supervision. There is nothing worse to my kind of mentor than a nightmare mentee who shows up several times a day wanting to know what to do next. In my view, a mentor-mentee relationship is not the same as a master-apprentice relationship. But there are other opinions.
  8. True, but only up to a point. "Done properly" is a big proviso. You're just as likely to pick up bad practices through OJT. It all depends on who is doing the OJTing. "Senior" and "knowledgable" don't necessarily go hand-in-hand.
  9. @Jamaal Valentine I'll call you privately next week.
  10. "Padding" a price by asking for an amount that is much higher than the cost estimate is not defective pricing. Defective pricing is giving the contracting officer certified cost or pricing data---assertions of fact---that were not accurate, complete, or current as of the date of price agreement. Generally, estimates are not cost or pricing data, but the factual existence of an estimate is cost or pricing data. Thus, if a contractor develops multiple cost estimates, high, low, and most-probable, but discloses only the high estimate, and not the others, the nondisclosure would be an instance of defective pricing. Certified cost or pricing data also include any statements of fact that an offeror provides in support of an estimate. If an offeror were to support a proposed price by stating in an estimate that an employee was paid $50/hr when, in fact, the employee was paid $35/hr, that would be an instance of defective pricing. If the offeror provided a statement to the contracting officer that an employee had been paid $35/hr, but that the offeror planned to pay $50/hr in the future, when in fact there was no such plan, that, too, would an instance of defective pricing. See, generally, FAR 15.407-1, Defective certified cost or pricing data. See also Bodenheimer, Defective Pricing Handbook, 2019-2020 Edition (Thomson Reuters, 2019).
  11. @Jamaal Valentine The key to understanding the changes is in a single sentence in the September 2, 2020, "Back to Basics" (BtB) memo signed by former Under Secretary of Defense (Acquisition & Sustainment) Ellen Lord: Translation: We give up. John Tenaglia's February 2, 2021 memo, which announced the "restructuring" of the 1102 certification program, should be understood as acknowledging that DOD has failed at developing competency among its 1102s and lacks the resources and the will to make another serious attempt. So DOD will now "certify" that when a person has completed four courses and taken an exam he or she is ready to do whatever he or she is paid to do as a contract specialist. That's not to say that the old program was worth much, with its Levels I, II, and III and myriad half-baked DAU training courses, but it seemed ambitious. I have seen nothing about improving OJT, probably because it is too hard to do. Of course, Ellen Lord is gone. DOD will have a new USD(A&S) soon, and "Back-to-Basics" will likely be forgotten or allowed to languish. Who knows what new policies will soon be slouching toward Bethlehem. If you are an 1102, and if you want to learn and develop as a practitioner, as I suspect most do, you must educate and train yourself. Don't count on your employer.
  12. It seems to me that if your agency has awarded a contract that provides for the work that you want done, and if the work that you want done is within the scope of that contract, then you don't need any justification for using that contract instead of conducting a new competition. Why don't you check with your supervisor, agency lawyer, and the CO for the IDIQ-NITAAC? Ask: 1. Does the IDIQ-NITAAC provide for performance of the work that you want done? 2. Is the work that you want done within the scope of that contract? Somebody straighten me out if it's more complicated than that.
  13. No need to worry. The OP did not ask if the contractor is entitled to an upward adjustment, and no one has suggested that the contractor is entitled to an upward adjustment.
  14. It's part of a CO's job to care. @Dan Wiesner I don't know of anything in FAR that requires the cost of bonds to be allocated to unit prices. I just spoke with a prominent attorney in private practice at a large firm who has handled a number of government construction contract claims. He said that he could not think of any reason why bond costs have to be allocated to unit prices. Additionally I checked a surety industry website and found this: https://mgsuretybonds.com/types-of-construction-contracts-surety-bond-perspective/#Unit_Price_Contracts At another website, I found this: https://www.levelset.com/blog/unit-price-contract/#What_Costs_Go_Into_Pricing_a_Unit And go here to see a form used by New York City for proposing change order unit prices on construction contracts. https://www1.nyc.gov/assets/ddc/downloads/current-consultant-cm/contract-cost-proposal-for-change-order-on-unit-price-contracts.pdf Look at the last block, which is for the unit price calculation, and includes a space labeled: "Additional Insurance or Bond Cost."
  15. @Guardian I'm afraid I got side-tracked on the printing press refurb. Some day. A couple of thoughts. If the PWS says that the deductions are for "late " delivery, i.e., a default, then such is not an incentive. Such is either a form of liquidated damages or a penalty. If liquidated damages, then there should be a reasonable and documented calculation of the damages the government would suffer on a daily basis. Absent such a calculation, the deduction might be construed as a penalty that is not related to any injury the government would suffer. A penalty likely would not survive before a board or the Court of Federal Claims, because it would not be consistent with the American common law of contracts. Cibinic, Nash, and Nagle discuss that in their Administration of Government Contracts, 5th. In order to be an incentive, the delivery date should be a "target," with a sliding scale of permissible dates fore and aft and the incentive payment a function of actual delivery, positive and negative from the target. Delivery within the permissible range would not be "late" and would not constitute a default.
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