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Vern Edwards

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Everything posted by Vern Edwards

  1. That's a strange interpretation of FAR 1.603-3(a), which says: If there are any limitations, then the appointment shall state them, but there don't have to be any limitations other than the ones stated in statute and regulation.
  2. Here is how the Design-Build Institute of America describes a Guaranteed Maximum Price contract: See: https://dbia.org/wp-content/uploads/2018/05/DeeperDive-Federal.pdf Keep in mind that GMP are used in construction, where "success" is based mainly on objectively measurable physical and functional characteristics. See the following for pros and cons: https://www.designingbuildings.co.uk/wiki/Guaranteed_maximum_price_for_construction_contracts
  3. @Tzarina of ComplianceI don't know whether PFS is a good idea. I've done some reading, and there are advocates and skeptics. I like to think that I have been an innovator, but I tend to be skeptical (not cynical) about anything that comes out of ivory towers like the Harvard Government Performance Lab, as would be anyone who knows the history of ideas like performance contracting in education, whence came todays Performance-Based Acquisition (formerly, Performance-Based Contracting). As far as I'm concerned, PFS is just education performance contracting with a financing twist. I've been around a long time, Tzarina. If you want an opinion about whether PFS contracting, as usually described, can be done under the FAR, my opinion is that it depends on how you want to do it. My general view is that it probably cannot be done under the FAR without approval of some, perhaps many, FAR deviations and perhaps some legislation. An informed opinion would require you to answer more questions than I want to ask. As for whether "Government pays nothing," well, that's a bold statement in a world with lawyers. I hope that if you undertake a PFS contracting arrangement you tell us about it and let us know how it goes. Best.
  4. I think that's right. It does not mention disputes "relating to the contract." Now the question is whether adding the alternate would be "tailoring." I don't know.
  5. That's bureaucratese ("leverage" "align") except, of course, for "crap." So we'll get the private sector to fund the crap ideas? Is that the idea? If the work is such that performance can be both specified and achieved, then why is the government using cost-reimbursement contracts and not fixed-price contracts? As for my question about profit, I was responding to your argument about investor benefit. If the performance outcome benefits the investor, if the investor gets what it wanted, then why should the government pay the investor a profit for its investment. Shouldn't the beneficial outcome be the investor's reward? Please elaborate. As for your comment about "real Performance Based Contracts," if such can be done, then why go through the rigmarole of a three-party relationship? What is your plan? Will the government contract with the investor or the service provider? Will the service provider be a subcontractor to the investor? Or will the government contract with the service provider and, separately, with the investor? Can the government award a contract under the FAR in which the deliverable will be funding? If funding is not the objective, or one of them, then why not just change your current acquisition strategy? I am asking you some of the questions I'd ask if you came to me seeking approval of a PFS contracting business case.
  6. @Tzarina of ComplianceIf you think you can do that under FAR, then put together a business case and send it up for approval through agency channels. Let us know what happens. But I have a question: If this program, to be carried out in a foreign country, is of such value to the private sector, and if the private sector has funds to invest, why won't the private sector invest without a promise of U.S. taxpayer payback? You say: So, if the program works to the investor's benefit, then the U.S. taxpayer should pay the investor for investing, plus a profit on its investment. Is that right? Please teach us about this.
  7. Joel, it would not cover a dispute "relating to" the contract.
  8. @C CulhamThat's just plain wrong. FAR does not "require" limitations. FAR 1.603-3(a) states: My last Air Force "warrant," which I still possess, stated my limitations as follows: "Unlimited." There are many COs today with "unlimited" warrants. If an appointment includes a dollar amount, it should be clear about to what that limitation is to be applied. If it's not clear, then, Carl, just apply the FAR guiding principles! 🙂
  9. Here is the original question: That question has been answered, with plenty of authoritative references. If NewbieFed is still interested he or she can read up.
  10. It's a way fund government programs when a legislature won't provide up-front funding. From the article to which I provided a link, above: I do not believe that FAR provides for such an "acquisition" strategy. Moreover, this is not just the half-baked performance-based acquisition scheme in FAR. In the cases in question the programs have been something like this: The benchmarks have been things like rate of recidivism. And note the boldface I added to the quote: Without congressional authorization, the Federal government cannot pay interest under a contract.
  11. See FAR 33.213, Obligation to continue performance: So what's the difference between "arising under" and "relating to"? In ABB Enterprise Software, Inc., ASBCA 60314, June 29, 2016, 16-1 BCA ¶ 36425, a software company accused the Navy of breach of contract based on breach of a master software license agreement, which the government had signed. The Navy argued that the board had no jurisdiction, because the license agreement was not mentioned in or incorporated into the government contract. The board decided that violation of the license agreement was a matter "relating to" the contract, and it thus had jurisdiction. In making its decision, the board cited Todd Construction, L.P. v. United States, 656 F.3d 1306, 1311 (Fed. Cir. 2011). A read of those two decisions, ABB and Todd, will give you a better idea of the distinction between "arising under" and "relating to" a contract. For details about the breach accusation, see ABB Enterprise Software, Inc., ASBCA 60314, January 9, 2018, 18-1 BCA 36954. The board granted the contractor summary judgment. The Navy agreed to pay the contractor $600,000 in settlement.
  12. For an in-depth description of pay for success contracting, see this downloadable/printable article: https://ssir.org/up_for_debate/article/the_payoff_of_pay_for_success
  13. See FAR 52.212-4(d), which says: Emphasis added. Compare the last sentence in that paragraph to the alternate to FAR 52.233-1: There is no need to tailor paragraph (d) to add the alternate. As written, paragraph (d) bars a contractor from ceasing performance pending final resolution of an accusation of government breach.
  14. @General.ZhukovUh, the "date" example might not be a good one. I'm old now, but my recollection is that sometimes persistence in the matter of asking for a date paid off. But I was 11B4P, and fortune favors the bold.
  15. @NewbieFedYou asked: "Termination" is a term of art used in government contracts to describe an act of the government, not of a contractor. Contractors do not terminate contracts. However, under the common law of contracts in the United States, if one party to a contract fails to fulfill a material contractual obligation—which is a material breach of contract—the other party is excused from further performance. See Restatement of the Law, Second, Contracts 2d, Section 235, "Effect of Performance and Non-Performance," which states: Now see Section 237, "Effect on Other Party's Duties of a Failure to Render Performance," which states: And now see Section 240, "Part Performances As Agreed Equivalents," which states: And now see Section 241, "Circumstances Significant in Determining Whether a Failure is Material": Bottom line: As a general rule, if the government materially breaches the contract the contractor is freed from its remaining obligations to perform. However, see the Disputes clause, FAR 52.233-1, Alternate I, which states: If that version of the Disputes clause is in the contract it may limit the contractor's common law right to cease performing.
  16. What if the COR just says it's their personal policy not to fill out such questionnaires?
  17. @NewbieFedYou are not being clear! What do you mean by "technology"? Hardware? Software? Both? Something just on paper. None of those? Do you know? WHAT are you buying permission to use? What do you mean by "technology/process"? Hardware? Software? Both? A facility? Something just on paper? None of those? Do you know? A "technology/process" might be a mathematical equation, a chemical formula, or a process specification. Specifically what will be delivered or rendered under contract? Do you know? Don't be embarrassed if you don't know. A lot of us have bought stuff we didn't understand, especially in our early days on the job. If you don't know, please say so. Then go away, find out, and come back if you still have a question.
  18. The FAR says nothing about COR completion of past performance questionnaires.
  19. @Weno2Seems to me that leaves room for interpretation when it comes to IDIQ. Does the amount on the certificate apply to the amount of the minimum, which is an obligation, or the maximum, which is the limit on the government's right to buy? I don't know, absent a clear statement on the certificate of appointment as to what the dollar limitation applies. Why should it apply to the maximum? The CO who signs the contract may not sign any of the orders. Interesting.
  20. @RF-SAWhen you read the EO as a whole it clearly applies to contracts only for services and construction and "contract-like instruments" for the same. There is no need to expressly exempt contracts for products, since they are not among the contracts listed to which the EO expressly does apply. I think the reason they expressly made mention of subcontracts solely for products is so that service and construction contractors will l know that the EO does not apply to all subs under a contract for services or construction, only subs for services or construction and subs for products that include services or construction, such as subs for the installation of elevators. Contracts and subs solely for products (include no services) are in the clear. What's not certain is applicability to contracts products that include installation and onsite maintenance. I discussed the EO at length with a colleague this morning, and we agree that it will not take effect before the implementing regulations are issued, and that it will take a while to get the regulations written and through the rulemaking process. A lot has to happen before the EO starts to have an impact. We'll all be in standby mode until the regs appear in the Federal Register.
  21. Have you considered sending the questionnaire to the CO instead of the COR? Have you considered asking the CO why the COR cannot fill it out?
  22. So what? Does it say "value"? If so, what does that mean? if not, then to what does the dollar amount refer?
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