Vern Edwards

A screw up or a bad decision. Put an explanation in the file and move on. Unless someone wants to call the IG. Do you?

DOD USD(A&S) DPC is a dry well of knowledge, vision, and invention.

No. It's not worth the bother given that you're firmly committed to a course of action. The provision for special responsibility criteria has been in the procurement regs since before I entered the workforce in 1974. The wording of the provision in the 1970 ASPR, 32 CFR § 1.903-3, was very similar to FAR 1.104-2: For those readers who don't think they already know enough about something they don't really understand, see Kidd and Franing, Effectiveness of Definitive Responsibility Criteria in Sealed Bidding for Heavy Construction Projects (2019), Naval Postgraduate School (98 pp). https://upload.wikimedia.org/wikipedia/commons/b/b1/EFFECTIVENESS_OF_DEFINITIVE_RESPONSIBILITY_CRITERIA_IN_SEALED_BIDDING_FOR_HEAVY_CONSTRUCTION_PROJECTS_(IA_effectivenessofd1094563468).pdf The abstract: The authors concluded that the use of DRC is a mixed bag.

The issue is not whether to require certification when making a responsibility determination. The issue is whether to establish a special ("definitive") standard of responsibility. The point is that a special standard is not necessary, and is not ideal, because it gives rise to possible (and avoidable) legal complications. You can require certification under the general standards of responsibility.

There is no need for a special ("definitive") standard of responsibility. If the solicitation/contract specify that the blaster must have certain credentials, then the apparent low bidder's responsibility can be established under the general standards of responsibility. See FAR 9.104-1(e), 9.104-3(a), and 9.104-4. Blasting in tunnel construction is not an "unusual expertise." dsmith101Abn would have known that if he had read FAR carefully and done enough research. Besides, the contractor might use the boring method of tunnel construction instead of blasting. https://www.fhwa.dot.gov/bridge/tunnel/pubs/nhi09010/tunnel_manual.pdf

I don't know about that. The CO today is a player, not a dictator. The CO's authority comes from knowledge and expertise, not bluster and insistence. A day ago dsmith101abn was clueless about special ("definitive") responsibility criteria. Hardly anyone who posted in response to his query knew much about the topic or its literature. Yet a couple of days later he is ready to just do it, "Right or wrong beneficial or not," come hell or high water, despite a warning from the two most distinguished government contracting experts who ever lived. Steven Feldman's discussion of the topic is 16 pages long. Definitive responsibility criteria have been mentioned in 1,642 GAO decisions. dsmith101abn might be jumping into Dien Bien Phu, otherwise known as "Hell in a very small place." But let's call it innovation. I wish him the best.

😈 Oh yeeeessss.

If, in anticipation of receiving the contract, you incurred costs for work that will be required by the prospective contract, i.e., initial costs or precontract costs (see FAR 31.205-32), then you must identify them as such costs.

There is no prohibition against requesting responsibility information to be submitted with the submission of sealed bids.

The difference has been explained by Feldman, cited in my earlier post: Footnotes omitted. In a 1992 article entitled, "Definitive Standards of Responsibility: How To Shoot Oneself In the Foot," Professors Cibinic and Nash wrote:

@dsmith101abnYou should know that the GAO has long referred to special standards of responsibility as "definitive" standards or criteria of responsibility. See e.g., Shimmick Construction Co., Inc., B-420072.3, March 17, 2022. Footnote: See also Navarre Corp., B-419088.4, June 29, 2022: The earliest such mention was in Harris System Termite Co., B-185659, Feb. 19, 1976. See Feldman, 2 Government Contract Awards: Negotiation and Sealed Bidding § 18:10, Definitive responsibility criteria.

You could if you do two-step sealed bidding in accordance with FAR Subpart 14.5.

Ill-conceived. Badly written. Wholly inadequate.

The FAR is ambiguous. FAR 22.1103 sates,. in part: FAR 52.222-46 states: Those passages could easily be interpreted to include the professional employees of subcontractors. If in doubt, ask the CO who issued the solicitation. Ask in writing.

No.

Rigmarole to get on schedule. More rigmarole to win a multiple award BPA against a schedule contract. Even more rigmarole to get an order under the multiple award BPA. They turned a simple idea from Part 13 into what to me is a confusing idea.

When the Government posts a solicitation called an invitation for bids (IFB) or request for proposals (RFP), it is inviting or requesting offers. Companies can submit offers called “bids” or “proposals” in response. The Government accepts a company’s offer (bid or proposal) in order to make a contract. A purchase order is a Government offer to buy, usually made in response to a quotation from a company. The company accepts the Government’s offer in order to make a contract. A task order or delivery order issued under an IDIQ contract is not an offer, an invitation or request to submit an offer, or an acceptance. It is a command to deliver or perform in accordance with the terms of an existing contract. Refusal to deliver or perform would be a breach of contract. A BPA (Blanket Purchase Agreement) is not a solicitation, an offer, a contract, or a contractual command. It is a noncontractual agreement under which the parties might do business in the future. BPA is a complicated idea with various meanings that I am not willing to spend time explaining in this forum. You can Google the term to get more information. Or maybe someone else will explain.

YES! I think GSA has gone off the deep end with all it’s “vehicles,” and I know some GSA folks who think the same. Now, instead of getting on with buying, people spend precious time wondering how GSA’s various “‘vehicles” work. And BPAs are one of the worst. Too much innovation!

No. Thanks for answering my question.

Just say that you’ll enter into a BPA with the lowest and the second lowest. But if price is the foremost consideration, when would you ever place an order with the second lowest? Why are you entering into multiple-award BPAs?

This may have already been discussed. Question: It’s a T&M contract. How are you going to bill report prep? At the hourly labor rates? For administrative work? What’s in the annual report?

For those of you who have access to law review articles through their office, the internet, or a library, look up Macneil, "A Primer of Contract Planning," Southern California Law Review, Vol. 48, page 627 (1975). See Section II, Lawyer Functions: The Process of Performance and Risk Planning; C. Drafting: Reducing Planning to Media of Mutual Communication. It's one of the best things of its kind ever written.

I checked Westlaw. The Federal Circuit decision was the end of the road. You might want to read about the Totten Doctrine.

There is an associated law review article citing the case (footnotes 74 and 119) and addressing the issues. See Radsan, "Second-Guessing the Spymasters with a Judicial Role in Espionage Deals," Iowa Law Review (2006). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=877180

@FAR-flung 1102 Everybody seems to have an opinion about such things. But do you know about Military Handbook (MIL-HDBK) 245E, Preparation of Statement of Work, 14 JUN 2021? If not, Google the name, download it, and read it. That venerable guide has been around since the 1960s. It is far from perfect, but it is widely used. Start there. Here is the Foreward: Moreover, there is a ton of "guidance" available online. Just Google <statement of work guide>. Then take your pick. Here's a link to an old NASA handbook: https://ntrs.nasa.gov/api/citations/19750015297/downloads/19750015297.pdf Here's a link to a State of Texas guide for SOWs for IT services: https://dir.texas.gov/it-solutions-and-services/buying-through-dir/statement-work-sow Here's a GSA guide: https://www.gsa.gov/cdnstatic/SOW_Application.Services.and.Component.Framework.pdf This is not a new or unique work challenge.