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Vern Edwards

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Everything posted by Vern Edwards

  1. @Boomer635Do you want something from the members of this forum? Information? Advice? Or are you just telling us your company's story? If you want information or advice, please tell us what you kind of information or advice you want. Keep in mind that we cannot give you legal advice, but we can offer opinions.
  2. @govt2310: I am not going to do any caselaw research for you. I suggest that you read Formation of Government Contracts, 4th ed., Ch. 1, Basic Principles of Federal Procurement, Sec. II., Contracting Powers. Also see FAR 1.602-1(b). Absent a specific example of the kind of thing you are talking about, that's the best I'm going to do for you.
  3. Go to the GAO Red Book, 4th Ed., 2016 Rev. and read Ch. 2, "The Legal Framework." In order for an agency to hire a contractor to do something it must have congressional authorization and an appropriation. Sometimes the authorization is provided separately and sometimes it is included in the appropriation act.
  4. Just brain-storming... Agency prepares a two-page RFP stating only its acquisition objectives, contract type, and evaluation factors. Invites offerors to prepare a proposal that includes (1) a complete proposed government contract, prepared in accordance with applicable rules in FAR and the agency FAR supplement and (2) a statement of the offeror's qualifications (capability, capacity, reliability). Agency allows three months for proposal preparation. Evaluation factors are, in order of importance: (1) legal acceptability of offer nonprice terms (based on statutory and regulatory requirements); (2) likelihood of achievement of government acquisition objectives; (3) price reasonableness; and (4) prospect for achieving mutual assent to contract terms. Agency selects top two offerors for discussions leading to negotiated agreement. Government selects and accepts the "most promising" negotiated agreement based on stated evaluation factors. What are the advantages of this process? Eliminates government time and effort to prepare a complete RFP (and amend it) in accordance with FAR Part 15. All the government needs to prepare is a two-page SOO. Allows offerors maximum freedom to propose technical solutions and technical and nontechnical contract terms; however, mandatory FAR and agency FAR supp. clauses must be included. Forces offerors to do, in addition to technical thinking, FAR and agency FAR supp. homework. (Contract to include a "Christian Doctrine clause.") Government develops a checklist of statutory and regulatory requirements while offerors prepare offers. Uses checklist to determine legal acceptability. Permits and facilitates in-depth one-on-one negotiations with top two contenders. I haven't thought this through completely. A one-time FAR deviation or two may be necessary. I haven't tried to identify any.
  5. @FARtmanI just saw your post today. Haven't read it yet. Give me a few days.
  6. Arguably, Bezos' has submitted an unsolicited proposal, or made preliminary contact about one. See the definition in FAR 2.101 and the coverage in FAR Subpart 15.6. The proposal does not appear to in response to the NASA solicitation, which has closed. There should be no need for congressional action, and he does not appear to have offered a voluntary service. He wants a contract. It appears to me to be a potentially very attractive offer. If NASA has competent negotiators it might be able to enter into a very good contract with a very good company.
  7. I do not know of any prohibition against a contractor disclosing its own CPARS assessment to anyone. I cannot think why there would be such a prohibition. And I cannot think how FOIA is involved. Why would the government care about a contractor disclosing the assessment of its own performance? Go to the CPARS website, get the phone number, and call for assistance.
  8. Maybe the CPARS contains favorable comments and the contractor wants to quote them in a proposal.
  9. Benjamin Franklin is considered by many to be the founder of decision analysis. Here is the text of his letter to his friend Joseph Priestly about how to make important decisions, dated Dec. 19, 1772. Note the mention of "weights" and the discussion of their application. Spelling and punctuation as in the original. To Joseph Priestley London, September 19, 1772 You could use that method to select a contractor, citing the advice of one of the greatest of the Founders.
  10. Are you asking whether a contractor may legally disclose the assessment of its own performance?
  11. It sounds to me that the contractor may have exceeded, or expects to exceed, the total amount allotted under an incrementally-funded CPFF contract because of a subcontract cost of some kind. The contractor wants the government to allot additional funds to cover the overrun. This sounds very simple. It happens all the time under incrementally-funded CPFF contracts. The contractor has probably told the subcontractor to stand by for a response from the government. @erock: Yes, potentially, because you have a contract under which you must reimburse the contractor for its allowable incurred costs, and you should want to know if the subcontractor's cost overrun is an allowable cost. Get off Wifcon, call the contractor, and ask what's going on.
  12. You're asking me? You called it "new work" in your original post. "New work" is contracting jargon for "out of scope." You did not post in the Beginner's Forum, so I assumed that you knew what you were talking about when you said the prospective mod was to be for "new work." Scope is a complicated matter, requiring knowledge of the terms of the contract, of the order, of the nature of the work originally required, of the nature of the work to be required, and of other facts. None of us at Wifcon can know whether the work to be required is beyond the scope of the original order, and if you don't know you better find someone who has the knowledge, time, and inclination to sit down with you and think it through. The fact that the work to be done is "similar" to the work that was done does not necessarily mean it is within scope.
  13. The government's power to accept the offer was probably terminated when it made its counteroffer. See Restatement (Second) of Contracts § 39: A better knowledge of contract law and of the terms of the contracts you deal with would be helpful to you in future
  14. Here's my analysis: The work under the task order was substantially complete when your company, in response to a government inquiry, offered to perform what you have called "new work." Your company has apparently let the offer remain open for two years. By "new work" I presume that you mean that the work to be done is not within the general scope of the work previously specified in the task order. The government has now, after two years, rejected your company's offer and made what is, in effect, a counteroffer. Your company does not want to accept that counteroffer. And its rejection of your two-year-old offer has taken that offer off the table unless your company extends it. According to you, the government has threatened to unilaterally modify the task order to add the work to the two-year-old task order. Under what contractual authority would it do that? If the work in question is, in fact, "new," i.e. beyond the general scope of the task order, then the government cannot enforce its threat pursuant to the standard changes clause. The CO would have to issue a new task order, in which case your price for the "new work" would not be limited to an equitable adjustment under the changes clause. It would be limited only by the pricing terms of the IDIQ contract. (Consenting to perform under a "change order" might be pure folly on your part.) You say the iDIQ contract is still in effect. We do not know its terms. Would it allow the government to issue a new task order to do the work under the IDIQ without first negotiating an advance agreement as to pricing? I suspect that your company wants the work, so plan to somehow become a brilliant and diplomatic negotiator in coming days. Land the job, but to your employer's advantage.
  15. After Don posted that, I told him that while I agreed with him, the statement that relative importance is "irrelevant" to the tradeoff decision requires an explanation. He responded on 7/16 at 06:10 pm in part as follows: While I agree with what Don has said, I still think we need a rationale for saying that the relative importance of evaluation factors is "irrelevant" to the tradeoff decision. If GAO has ruled that way—and it has, although it has not expressly said "irrelevant—we need to understand why. I think that as professionals we can't just say that the GAO has consistently ruled that way. I think we must understand why it has ruled that way, so we can explain it to others. And I don't think we should cite an article by Professor Nash that we can't find.
  16. @ji20874I agree. In the June 2018 edition of The Nash & Cibinic Report, I wrote: Unfortunately, the DOD Source Selection Procedures (April 2016) effectively require that agencies make those findings in acquisitions to which the procedures apply: However, waivers may be requested.
  17. I am not aware of any such requirement. Moreover, FAR Part 15 makes no mention of source selection plans. The requirement for an SSP is an agency level requirement. Moreover both the GAO and COFC have said that failure to adhere to a source selection plan is not grounds for sustaining a protest. See Epsilon Systems Solutions, Inc., GAO B-409720, 2014 CPD ¶ 230, July 21, 2014: The position of the COFC is generally along the same lines, but not so unequivocal. See "Postscript II: Source Selection Plans," The Nash & Cibinic Report, (Sept, 2010), which discusses the somewhat inconsistence stances of the judges at the court. Perhaps the CO and the SSEB have not been properly educated and trained by their superiors. Perhaps they haven't bothered to educate and train themselves. Perhaps for one or both of those reasons they are not qualified to conduct or participate in a source selection.
  18. @WifWafHmmm. Interesting idea. I think I like it. But let's be critical thinkers and ask: What would the opponents say against it?
  19. To which "Vern's post" are you referring? I have made several. Emphasis added. The issue is not evaluation against the stated factors versus comparisons. Offerors and their offers must always be evaluated against the specified factors. The issue is the method of factor evaluation. Factor Evaluation by Direct Comparison A panel lays their heads on each pillow and subjectively decides which is the softest. The one identified as the softest is given 100 points. The second softest is given fewer points, say 80, assigned subjectively by comparison with the softest. The third gets even fewer points, say 60, again based on subjective comparison with the softest. And so on. Factor Evaluation by Comparison to a Common Standard A panel is given a descriptive scale of softness, such as the five point scale used by US Mattress: 1-firm, 2-medium firm, 3-medium, 4-medium soft, 5-soft. (The categories come with descriptions.) They lay their heads on each pillow and assign it a rating based on the descriptive scale, not based on direct comparison. In both cases the pillows are rated "using the stated factors"; but in each case the ratings are assigned based by a different method.
  20. There is no prohibition in FAR against evaluating proposals by direct comparison. If you are familiar with decision analysis techniques, you know that evaluation by direct comparison can be a valid method and that there are suitable ways to do that. The idea that agencies may not evaluate proposals on the basis of direct comparisons dates back to agency source selection regulations, especially those for research and development, that required evaluation of proposals on the basis of comparisons to agency established standards, rather than comparison to each other. See, e.g., Air Force Regulation 70-15, 16 April 1976, p. A-37: Proposals were evaluated and rated on the basis of whether they met, failed to meet, or beneficially exceeded the standards. In other words, to refer to ji20874's example, if the pillow evaluation factor was to be softness, then the agency had to have a scale and standard of softness, and each proposal would be rated (excellent, good, fair, etc.) on the basis of how soft its pillow is compared to the standard. However, another way to evaluate offerors would be to determine how soft each competing pillow is and rank the offerors by direct comparison, with the softest pillow getting the highest rating and the others getting proportionately lower ratings. The prohibition against evaluation by direct comparison was intended to ensure that the winner met the agency requirement for softness. In theory, evaluation by direct comparison could result in a winner that is best among the competitors, but that does not meet the agency's needs. To the best of my recollection, FAR has never prohibited evaluation by direct comparison. Today, FAR 15.305 states: Some agency-specific policies or procedures may still prohibit evaluation by direct comparison, but others do not. See, for example, the Department of Commerce Acquisition Manual, Section 5, Source Selection Process, para. 5.2.3: Like Freyr, many in the workforce think that FAR prohibits evaluation by direct comparison. It doesn't, but there are pros and cons. If it were up to me, only specially trained contracting officers would be permitted to conduct source selections. It could save the taxpayers millions.
  21. No, it doesn't. Don, I agree with your assertion, but I don't think you have proven its truth.
  22. All: I wrote the following letter to the DOL Wage and Hour Division: I received the following response from a DOL regional office today: The person who signed the response identified themself as: "Senior Investigator Advisor." I do not believe the DOL response answered my question, which was: Basically, the DOL response is "We won't tell an agency what it can or cannot do." That response does not seem to me to be consistent with the plain language of either 29 CFR 4.6(g)(4) or FAR 52.222-41(i)(4). However, it is clear to me that it's the only response I am going to get under the circumstances. I was told orally that CO-initiated interviews are rare. The only agency mentioned by the DOL rep was the Forest Service, but I did not inquire about other agencies. I think the DOL response lends support to C Culham's general take on the issue, but that it does not support his specific arguments and conclusions about the CO's authority. That's all I could learn. Such are the ways of bureaucracy.
  23. @ji20874I'd like to address that. FAR requires that agencies evaluate offerors and their offers on the basis of stated evaluation factors. Following the concepts and principles of decision analysis, I say that "evaluation factors" are attributes (characteristics, features, properties, qualities, etc.) of the things to be evaluated. They are qualities that will contribute the the achievement of the government's objectives, either by their presence of absence. A description of an evaluation factor should include a description of the object of evaluation—the thing to be evaluated—and the attribute of interest. If the evaluation factor is "soundness of proposed approach," then the object of evaluation is the proposed approach and the attribute of interest is soundness. The purpose of evaluation is to determine whether and to what extent various facets of offerors and their offers possess specified attributes. The findings of the evaluators in that regard are the principle products of evaluation. If the evaluation factor is soundness of approach, the evaluators will read the offerors' descriptions of their proposed approaches and determine whether and to what extent they possess the quality called "soundness." The evaluation findings will be statements of the extent to which each of the proposed approaches is or is not "sound." Both the GAO and the COFC have condemned the practice of basing a source selection decision on ratings alone. See, e.g., Braseth Trucking, LLC v. U.S., 124 Fed. Cl. 498, Dec. 4, 2015: And see Manhattan Strategy Group, LLC, GAO B-419040.3, 2021 CPD ¶ 216, May 21, 2021: Since FAR does not require ratings, and since the GAO and COFC will not permit agencies to base their decisions upon them, why use them? The reason is to reduce complexity and facilitate rationality. The finding associated with each of the various evaluation factors is stated in different terms than the others. That's because each factor is a different attribute, with a different description and a different scale of measurement or assessment. The terms used to describe the findings about "soundness of approach" will not be the same as those used to describe, say, "depth of experience," because those are attributes of different natures measured or assessed on different scales. Taking all factors into consideration at once in order to determine each offeror's overall value can be very hard if there are more than two or three factors. Ratings are used in order to simplify complex factor findings by converting findings expressed in different terms and on different scales to common terms and scales. In the quote I provided above, the authors stated: Each finding is like a fraction with a unique denominator. You cannot aggregate them until find the lowest common denominator (LCD). And that's where rating comes in. Ratings, whether they be numbers, adjectives, colors, emojis, or whatever, are like LCDs. A rating system converts judgments expressed in various terms to common terms like 85 points or "Good" or Green. However, you still cannot aggregate adjectives or colors. I agree that if you have a simple acquisition, by which I mean one that entails the evaluation of only two or three factors, then rating is unnecessary and perhaps a needless complication. Taking two or three factors into consideration at once is not too hard. But if you have an acquisition in which there are 5 or even 100 factors, then rating is useful and even necessary. Now, if rating is a useful or necessary means of simplifying complex information for decisional purposes, then a numerical system is superior to an adjectival system, because, quoting the authors again, "The advantage of numerical subjectivity is simply that expressing judgments in numerical form makes it easy to use arithmetical tools to aggregate them." If one has had the proper training, the process of using numerical rating is not inherently complex. There are several ways to do it (e.g., Simple Additive Weighting) and many books that describe them. But to one who has not had the proper training, writing a simple English declarative sentence is complex, and so is long division. And goodness knows, the contracting workforce does not receive proper training in formal decision-making techniques. I will agree in advance to disagree. I expect disagreement. I long ago gave up trying to convert anti-numericals. I am not trying to change anyone's mind here. I am not seeking anyone's agreement. I was once a convinced anti-numerical myself, back in the late 1970s, until properly taught by knowledgeable persons. I have been able to convert a few, but not many, either because I have not been convincing or because they were beyond the reach of my ability to inform and persuade. Based on my training and wide-reading, I believe that government source selection is in the stone age, but the government manages to chose contractors, usually, eventually, so what the heck. All I'm doing here is thinking out loud and talking to myself.
  24. I'm not sure that we do disagree. Your last post seemed to indicate that your problem with numerical scoring is the ignorance of the users and how they use it. You don't seem to object to it in principle.
  25. @joel hoffman The prejudice against numerical rating methods in source selection is strong and, as a practical matter, insurmountable. However, if you read any textbook or article about decision-making the authors will likely use a 0 to 100 point rating system. (NASA uses a 1,000 point system, and you can hardly call them idiots.) Two highly distinguished authors of one of the greatest of all textbooks on decision-making said this about the prejudice against numerical methods: [Emphasis added.] I find adjectival/color rating systems to be seriously dumb and, as a practical matter, almost useless. But they've been with us since the late 1970s and are not going away, giving the ignorance of decision analysis among policymakers and the workforce. It's funny how people who oppose the use of well-established numerical methods are willing to live with and base important decisions upon vague concepts such as "strengths" "weaknesses" and "significant weaknesses." It's very hard to overcome a prejudice among those who won't learn. I usually don't try. But I think you and I have discussed this before. There is a new book out entitled, Shape: The Hidden Geometry of Information, Biology, Strategy, Democracy, and Everything Else, by Jordan Ellenberg. The first chapter tells how Abraham Lincoln taught himself the art of logical persuasion by studying Euclid's Elements. I read about it in The Wall Street Journal, and I'm reading it now.
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