Vern Edwards

First, think in terms of (A) experience and (B) past performance. Experience is the record of what an offeror has done in the past. Past performance is an assessment of how well the offeror has performed. You should always evaluate both. They are related, but they are different things. All assessments of past performance are associated with particular instances of experience. Let's call those instances jobs. What you should want to know about an offeror is how many jobs it has had in the recent past that were like the one you will want it to do for you. You want a contractor to have experience doing jobs that were similar in terms of the type of work that was done, the size of the job, and the complexity of the job. Complexity is the product of (a) what the work entailed, its "scope", and (b) the conditions under which the work was done. Complicated work performed under variable and unpredictable conditions can produce unexpected states of affairs. Such states may present themselves in the form of unexpected difficulties that the contractor will have to overcome in order to complete the job as promised. That is why the complexity of past jobs is an important consideration. We presume that experience teaches a company about what can go wrong, what are the warning signs that something is going wrong, what if anything can be done to prevent them from going further wrong, what remedial actions can be taken to get things back on track, and what can be done to recover from unpreventable disaster. That's why experience is valuable. What you want is a contractor (a) whose experiences should have prepared them for the work to come, and (B) whose past performance shows that they have learned from those experiences.

Here's a simple rule. When researching the FAR and going to a particular part or subpart, before you read anything else read any sections entitled scope, applicability, and definitions—SAD. Don't be sad, read SAD first.

Probably OJT word of mouth—training by rumor and innuendo, provided by a "professional" and accepted without question. Trust, but verify.

See this: "Boeing's Low-Ball Defense Bidding Has Come Back to Bite Them" https://www.defenseone.com/business/2022/04/boeings-low-ball-defense-bidding-has-come-back-bite-them/366293/

@formerfed Congress? OUR congress? The one in D.C.? The Barnum & Bailey act? What would be the status of such hires? Would they be civil servants? Would they be government employees of some other classification? The political ramifications could be very significant. Which party would have the support of such hires. Who would lose political support for voting in favor of such hires? Let us know when you get back from Fantasy Land. 😂

The solution is simple. First, what's the problem? The problem is getting offerors to propose realistic estimated costs. What is the source of the problem? Competitive pricing of cost-reimbursement contracts, which motivates offerors to low-ball estimated cost. Solution? Base source selections for cost-reimbursement contracts on offeror capability, without consideration of costs. Then negotiate estimated costs and fees one-on-one with the selectee. In other words, use the architect-engineer capability-based selection process to award cost-reimbursement contracts. Problem solved. Now go tell the idiots on Capitol Hill that their notion of "full and open competition" is 19th Century thinking.

I like that idea. I think that's true. We're doomed.

@General.Zhukov Here are the rules. FAR 15.404-1(d)(1) - (2): From ASRC Federal System Solutions, LLC, GAO B-420233, April 12, 2022: From IAP Worldwide Services, Inc., U.S. Court of Federal Claims, March 20, 2022:

You're welcome. So everyone knows, I sent a copy of the article to the contracting officer as a heads up. Also, keep in mind that the article is about a draft RFP. @here_2_helpI haven't forgotten about the photos. Coming later today.

Some acquisitions are too specialized for generalists. IT contracting should be a specialty field. IT contracting officers and contract specialists should receive special education and training. Other specialty fields are: Construction and architect-engineer contracting Research and systems development (military and space) Other research and development Long-term support services If we had real leadership in the government we would have more and better education and training and fewer fads like performance-based acquisition and agile. The government would be the lead dog on the sled team instead of the last and have a better view of the way ahead.

Are the rates covered by forward-pricing rate agreements or contract ceilings ("caps")?

@General.Zhukov If the offeror is going to do the work with people already in its employ, and if it can show what it's paying those people, and if it's cost estimate is based on those costs, then on what basis would the government say that the offeror's estimate of cost is unrealistically low? The most probable cost must reflect the likely cost to each offeror based on its own method of performance. The government cannot apply an across the board estimate of its own to all offerors.

In other words, the offeror has proposed rates that it is actually paying. Is that right? If so, then the issue is not cost-realism. Is the procurement for professional services?

@ji20874You did say that. But I want more than guidance. I want oversight. I do not want the decision left to contracting officers, good or otherwise.

I think that's good advice. However, given the issues, the stakeholders, and the potential for litigation, costs, and delays--and despite ji20874's apparently faith in contracting officer judgment--senior agency acquisition officials should provide chiefs of contracting offices with some guidance. They should at least provide a list of things to consider when deciding whether to apply Part 19 to acquisitions outside the U.S. In larger procurements, such decisions should be subject to higher level policy review. No one really likes oversight, but there should be oversight when the stakes are high. I agree with ji20874 that there are many "good" contracting officers out there, and I think the best of the good ones will want some backup in this matter. Like Don, I believe that we'll eventually see litigation, whether or not this year. Agency acquisition chiefs would be wise to ensure the appropriate use of discretion and consistent policy application.

If no one asks and answers those questions the lawyers will take the entire process to court and kill it, the way Amazon killed JEDI. Or the way Boeing killed the first KC-X acquisition. There is no sense complaining because there are lawyers and you have to THINK. People who don't want to think should go fishing. It's the way our system works. But it might have been easier if the FAR Councils had earned their pay.

If the CO determines that the procurement is "outside" the U.S., then the relevant question becomes: Should we apply Part 19? It's discretionary. Is the discretion "unfettered", or must the CO have reasons? If the CO must have reasons, what kinds must they be?

Please note that the new rule does not tie the applicability of Part 19 to place of performance. It says that the CO "shall" apply Part 19 "in the United States and its outlying areas" and "may" apply it outside the United States and its outlying areas. The councils have not resolved the issue of what the phrases "in the United States" and "outside the United States" mean. What must be "in the United States"? Why didn't they say "when performance will be in the United States" or outside the United States? And why didn't they say what constitutes "performance"?

@ji20874Yes, when the personnel exercising a "flexibility" have been trained in how to do it properly, know and understand the "whys" of the underlying policies, know the principles of discretionary choice in a regulated activity, know right reasons for choice from wrong ones, can state their reasons in clear and persuasive terms, and know not to make such choices for the wrong reasons.

Inside the United States. Outside the United States. Another dumb rule from the FAR Councils. More work for the lawyers. $$$$$

That's not even close to describing most of what's wrong with government acquisition.

Oops! I edited while you posted. As for Monty Python, look out for that rabbit.

I responded the best I could by giving you the OMB House policies. I don't know how to find out what is "really done" with the info. What is "really done" about anything by government is rarely known by the general public. In the same way, we don't know how source selection decisions are really made or how prices are really negotiated or how disputes are really settled unless we participated.

From the Federal Register: And see this: https://www.whitehouse.gov/omb/information-regulatory-affairs/

More on the topic of writing a contracts and contract content: Contract Drafting: Powerful Prose in Transactional Practice, 3d ed., by Espenschied (American Bar Assoc., 2019) A Manual of Style for Contract Drafting, 4th ed., by Adams (American Bar Assoc., 2017) Garner's Guidelines for Drafting & Editing Contracts, by Garner (West, 2019)