Voyager

Yesterday was the cutoff for general feedback on the Revolutionary FAR Overhaul any of us practitioners wanted to provide the OFPP. I provided the attached. An A.I. tool my agency provides helped me prepare this. The A.I. suggested, and I decided, that the RFO initiative needs to balance accountability with agility, and procedural correctness with mission success. I did not let the A.I. base its perspective outside of Wifcon.com. That means, subject to any user error and the limits of the technology I used, 27 years of forum activity is advising this document. What do you think? Would anyone like to augment, refine, or disagree with these points on this forum? If you agree with any of these points, what is an example of it in the RFO Parts that could lead to actionable public comments on the Federal Register? I view this feedback as merely a conversation starter. RFO Feedback.pdf

But it's not, if the CO customer knows what he or she is doing. A MAS is just a place for a contractor to state prices available to all customers. A BPA is a place for a price negotiated down to a certain customer for a certain repeatable task. It's a device for removing risk from the MAS price. An opportunity - in the right hands.

You guys are probably right. Does it matter? Common sense says we do a lot of commercial transactions. Business sense says we should make those less lawyerly (take procedures out of the law) and less onerous (make the APA inapplicable).

FAR Part 15 award procedures are for the COs with noncommercial requirements. In the U.S. Government's award data reported by COs in FPDS, if you look at the number of transactions, COs report that most transactions - and that means most of their work hours - use commercial procedures. It stands to reason, then, that the first place COs need reform is in the procedural burden of awarding commercial requirements. It's the low-hanging fruit. I agree with @FrankJon above that it is only natural for bureaucrats to revert to their old ways, and I venture to guess that might be why this increment of change did not attempt to take them on and change their ways all at once. In this way, even the current increment of change is agile. The early adopters of the overhauled FAR procedures will instead be the COs with commercial requirements, and they have nearly all of the reformers' collective focus on them now. The "revolution" is occurring in their world, as evidenced by the obliteration of FAR Subpart 8.4 - a law you used to have to know.

We're digging ourselves out of a hole. We won't just emerge all at once. At this point in the likely decade-long reforms needed to federal acquisition, aren't the reformers just restoring common sense? Their orders are literally Executive Order 14275, Restoring Common Sense to Federal Procurement. Common sense says less instructions and less prerequisite knowledge needed to read the remaining instructions will mean less complexity in execution. Then the buying guides can fill in the knowledge gaps without the onerousness of the Administrative Procedures Act. Then the culture will value risk aversion less and value efficiency and effectiveness more. Then the hiring will naturally improve. That latter activity will all be done in the agile sense of modular improvements based on current known needs. This might take a while. The prerequisite knowledge of the law is the problem right now, so they're solving that.

With the "facts or circumstances" language put back in, that leaves open Vern's two questions still: A binding contract requires offer, acceptance of the offer, and consideration. Assuming FAR Part 15 source selection procedures were used, prior to award the Contractor proposal's promissory statements were the offer, and, unless the Government counteroffered in discussions, the award document was acceptance of the offer. Consideration, according to The Government Contracts Reference Book, is either a benefit to the offeror or a detriment to the buyer, so at time of award without discussions, consideration was the Government's promise to pay the sums stated in the contract. Now, here at time of contract modification, I assume the parties are actually negotiating. Now the supplemental agreement drafted by the Government is the offer, as it captures the REA proposal's promissory statements and any other promises the Government offers to the Contractor buyer for bilateral signature. Again, consideration must be either a benefit to the offeror or a detriment to the buyer. Here the detriment to the buyer is the promise to release claims. Look at this phrase again: it seems to say the "modification(s)" are the consideration*. But I just said the promise to release claims is the consideration. It is unclear as written. I therefore propose the whole entire template language remain the same except for the first word. Change "In" to "As". Then the offer is the supplemental agreement draft, the acceptance is the Contractor's bilateral signature, and the consideration is the promise to release. *Here, the modification is actually the binding contract. It is the instrument that requires offer, acceptance, and consideration.

I see in the language @Vaughn sets forth we lose the applicability of the release to the underlying facts or circumstances surrounding the change the Government made. We instead apply the release of claims to all things the Contractor wrote in their proposal. So, they could just issue a new proposal and get another swing at it. Imagine a disgruntled contractor up at the plate: "Strike 8 - try again!" In DOD I once had a boss who was a former NCO that used to say, "Disapproved! Please submit again in 90 days for further disapproval."

Oh. Hence, the change order required no further consideration to be made effective. I get that now, so my proposition is null. But I disagree with this, based on my understanding of the English involved here. I assume that the beginning phrase (from "In" to "adjustment,'") is an adverbial phrase modifying the verb "releases". The noun in the sentence is "Contractor". Based on my above assumption, I would say the Contractor's promise to release claims is consideration for the Government's offered contract modification. Especially since "releases" is active, not passive. If my above assumption is false, then "in consideration of" is mere colloquialism as you suggest.

This has me scratching my head at FAR 43.204(c)(2): It says the consideration, or thing of value, that the contractor brings to a supplemental agreement containing an equitable adjustment as the result of a change order is a promise that it will not hold liable the government for further equitable adjustments. Isn't the consideration the promise to perform the contract as changed?

Is your typical businessperson really hiring (because that's all this is) professionals for their butts in seats? Because that's what the majority of professional services contracts are - especially the ones with no deliverables, or with "Monthly Progress Report" deliverables. This takes no business sense, which is why 1102s are currently so confounded or scared to negotiate that they sometimes document their files the way @General.Zhukov describes - even now, at current acquisition thresholds. The majority of these contracts are governmental hiring workarounds to avoid paying pensions and being unable to fire a Fed. We are not going to change those facts of life (except maybe to force negotiations), so I say let the PMs hire who they want this way and let the markets subsequently flood so the price of these butts goes down.

In reference to this OP: Eliminating Bid Protests - Contract Award Process - The Wifcon Forums and Blogs - 27 Years Online See GAO response to its FY2025 NDAA mandates: GAO Response to Section 885 of the FY2025 NDAA | U.S. GAO

@joel hoffman Where does one find the best guidance on how to effectively execute successful D-B programs today? Applicable to my workload. Thanks.

Sure, Vern, I can drop off here, for you and your people. Before I go, I want to hearten those that may be afraid in these times. The text you quoted of me is indeed not a government’s duty to carry out; it is, however, the duty of the citizenry when their consciences so incline them. For more than a millennium, the Western way has been for the state to administer justice, and the church to administer mercy. Recent decades of taxed mercy have not been motivated out of any desire on the taxpayer’s part to relieve suffering, though, and have instead served to blend these two distinct roles of church and state. Do not fear the loss of this! The American conscience is not leaving us as the state relearns its role - no, I believe rather it is reviving true after decades of derelict sleep.

Jamaal, you have identified a key difference between a business's and a government's "Type II Waste". One entity is accountable to shareholders during its mission to please paying/potential customers, while the other is accountable to taxpayers during its mission to safe-harbor citizens. The business may exclude costs that would not benefit the majority of its customers, whereas the government shall not exclude reasonable costs for any of its citizens (e.g., think of the cost to feed prisoners). In its cost of operations, the business may rack and stack people within its pool of customers, e.g., putting high-paying customers first, infrequent customers second, and noncustomers last, as its shareholders demand. The government shall not do this to its citizens, according to the Preamble to the Declaration of Independence and to common decency dating back to Mosaic Law. I think under this logic the taxpayers can and should demand their government eliminate the cost of noncitizens, but as this is not within the realm of my job responsibility, I will leave it here only as the best example of my logic. Another example is any cost that is being justified currently to exert control over the actions of a separate sovereign state, based upon a prediction of what that state's leaders may do in the future. Notice I am giving no example of a cost affecting any of the government's citizenry. That, my friends, is where we can and must craft our trade. What is the similarly unfounded cost in your realm of job responsibility? Everyone should think small of this and allow the logic to scale itself up. Start with your own CO workload and practice applying this logic daily, so that, when you rise in the ranks to a workload that potentially costs the taxpayers a great deal, you can also save them a great deal. Wise, caring prioritization is the single most important skill a government employee can offer taxpayers. At the municipal level, would you justify the cost to heat an outdoor swimming pool in Fairbanks, Alaska? Where in your workload is that swimming pool? Most likely it is in a thoughtless decision not to use strategic sourcing due to "immateriality" of the cost in a proposal. I say stop that! Spend your time on the reduction of small costs now, so that your crafted practice 20 years from now may reduce large costs. And to current upper managers - hire your SESs and other fellow managers based on proven track records in this crafted practice.

I think accountability is the answer. How about this idea. The DFARS PGI doesn't take rulemaking action to revise. Neither do DOD Instructions and certainly Defense Pricing and Contracting (DPC) memos don't. Yet when you read them, the working-level organization that is tasked to do the actual work is not mentioned under a "Responsibilities" section or anywhere else. The Director, DPC sends the memo to the highest level in the bureaucracy, and this creates a chain of events to delegate the action. One break in that lengthy chain, and the action loses its potency. Accountability is obfuscated by this exact mistake. Why don't these managers simply coordinate ahead of PGI, DODI, or memo issuance to exactly which low-level manager the upper managers will assign the action, and then name that person in the PGI, DODI, or memo? Can you imagine the excitement and effort that would draw out of that low-level manager?