Don Mansfield

@formerfed That's just the line-out version. It doesn't show the additions. I can't attach the line-in line-out version here because it's too big, but you can see it here: https://www.linkedin.com/posts/donald-mansfield-181b6425_compare-docs-version-of-current-and-proposed-activity-7325645767174410240-oB6w?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAVVFfEBGwwV9lul0QXOYxogw54s42KVA9c

I think it's supposed to be STD ZD072. I don't know what the code means, but DLA uses it when referencing a Hazard Communication Standard notice in solicitations for batteries. The notice requires submission of Safety Data Sheets to the contracting officer.

Is FAR 52.223-3 in the contract?

I wonder how an offeror's proposal would differ using one authority vs. another. Would they have different proposals for different authorities (i.e., OTA price, FAR-based contract price, etc.)? That would interesting to measure.

Deleted

On 5/2/2025 at 9:21 PM, Matthew Fleharty said:

A lot to digest, but this is what stuck out most for me initally: In the line out draft of Part 1 they struck out FAR 1.104 Applicability which used to read "The FAR applies to all acquisitions as defined in part 2 of the FAR, except where expressly excluded." As far as I could tell on my initial read through, they did not replace or reword that text anywhere.

That jumped out at me, too. I'm going to submit a comment on the importance of that statement.

Now on Spotify.

One is a contract clause and the other is an activity.

I think you need to work on your question.

Nice work

New EO: https://www.whitehouse.gov/presidential-actions/2025/04/restoring-common-sense-to-federal-procurement/

Was it 1-year money?

From what I could gather, it was FFP with a delivery unit of "hour." Assuming the measure of "effort" was time spent working, then I would say it was FFP LOE.

1 hour ago, ricroy said:

15.303(a) states, "The contracting officer is designated as the source selection authority, unless the agency head appoints another individual for a particular acquisition or group of acquisitions." An individual is defined as a "a single human being as distinct from a group, class, or family." So as currently described in the FAR, an SSA is a human. Perhaps the new and improved FAR 2.0 will redefine "Contracting Officer" or "individual" as other than human.

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The Federal Activities Inventory Reform Act of 1998 defines an inherently Governmental Function as "a function that is so intimately related to the public interest as to require performance by Federal Government employees," (emphasis mine) so this is based upon statute rather than any policy or regulation.

I also do not think that computer software could yet be considered a "Federal Government employee."

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The question of whether or not all award decisions are currently made by humans is unimportant as the law requires humans to perform this work.

Where did you get your definition of individual?

FAR 7.503(c)(12) doesn't include selecting sources.

1 hour ago, ricroy said:

Yes, an SSA has to be human. The duties and responsibilities of an SSA as described in 15.303(b) are inherently Governmental per 17.503(c)(12).

Neither of those say anything about an SSA being human.

Do you think all award decisions are currently made by humans?

Does an SSA have to be human? If AI produced a rational source selection decision that would otherwise withstand scrutiny at the GAO or COFC, what's the problem?

2 hours ago, joel hoffman said:

Of course, what happens when Federal Court case law contradicts an Executive Branch interpretation of the law? That will have to be adjudicated between the President and/or Attorney General and the Judiciary, won’t it?

Or what happens if an executive branch interpretation is rejected by a court in a future decision? Does the executive branch wait to hear from the President/Attorney General that they have changed their interpretation?

2 hours ago, joel hoffman said:

And, for good or bad, i chose not to be anonymous on this Forum. Some others have come over from the dark side over the years. (Right, Don? 😃)

Right. 

2 hours ago, Retreadfed said:

See, 41 U.S.C. 1707

I actually referenced that back on page 1. Hammurabis missed it.

1 hour ago, Hammurabis Heir said:

Where's the APA? We're discussing the following statutes, but are we ignoring the Administrative Procedure Act (APA)?

No, because the APA doesn't apply to the FAR System.

Comic contracts: https://contract-design.worldcc.foundation/comic-contracts?

Another thought. Let's say they strike something like "Contracting officers shall purchase supplies and services from responsible sources at fair and reasonable prices." FAR 15.402(a). Subsequent to that, an agency issues an internal policy that says "contracting officers shall purchase supplies and services from responsible sources at fair and reasonable prices." Is the agency's policy subject to the publication and notice requirements of 41 U.S.C. 1707?

I wonder if they will strike language that implements other agencies' regulations (e.g., SBA, DOL, etc.). I don't think striking such language from the FAR would affect the force of those regulations.

My point is that the acquisition bureaucracy is guilty of forcing the world into existing drawers instead of creating new ones. Whether there should be more than one drawer for "evaluation of cost-reimbursement proposals" is beside the point, but worthy of a separate discussion.

I recently finished reading Nexus: A Brief History of Information Networks from the Stone Age to AI by Yuval Noah Harari of Sapiens fame. There's a passage in a section titled "Bureaucracy and the Search for Truth" that I found insightful:

Quote

Bureaucracy literally means "rule by writing desk." The term was invented in eighteenth century France, when the typical official sat next to a writing desk with drawers--a bureau. At the heart of the bureaucratic order, then, is the drawer. Bureaucracy seeks to solve the retrieval problem by dividing the world into drawers, and knowing which document goes into which drawer.

The principle remains the same regardless of whether the document is placed in a drawer, a shelf, a basket, a jar, a computer folder, or any receptacle: divide and rule. Divide the world into containers, and keep the containers separate so the documents don't get mixed up. This principle, however, comes with a price. Instead of focusing on understanding the world as it is, bureaucracy is often busy imposing a new and artificial order on the world. Bureaucrats begin by inventing various drawers, which are intersubjective realities that don't necessarily correspond to any objective divisions in the world. The bureaucrats then try to force the world to fit into these drawers, and if the fit isn't any good, the bureaucrats push harder.

I see instances of this in acquisition policy: 

1. We need a drawer for "service requirements description," but we instead try to force that into the "supply requirements description" drawer. The result is performance-based contracting (i.e., buying services as if they were supplies).

2. We need a drawer for "evaluating competitive proposals for IDIQ contracts" that recognizes that price competition at the contract level is unnecessary if there will be price competition at the order level. The result is fictional price competitions at the contract level just to check a box.

3. We need a drawer for "software acquisition," but we only have supply drawers and service drawers, so there are debates over which drawer to use.

4. We need a drawer for "evaluation of competitive cost-reimbursement proposals" that recognizes that we are not dealing with fixed prices, but we instead hold cost estimate competitions and make tradeoff decisions as if the Government's determination of probable cost is what the Government will actually pay (without ever validating the accuracy of the probable cost).

Questions:

1. Do you see what I see?

2. If so, are there other examples you can think of?

I don't think that what we are seeing are FAR part 13 BPAs as contemplated in the FAR. The Government is not establishing "charge accounts", making calls, maintaining call logs, receiving "delivery tickets", receiving summary monthly invoices, etc. Now that agencies can use SAP up to $7.5 million (or $15 million in emergencies), there's a need for something like an IDIQ for simplified acquisitions. I think the type of agreements we are seeing are more BOAs than BPAs.

I think it's reasonable to consider what the cost to the Government is likely to be before awarding a cost-reimbursement contract. However, I don't think the Government does that. In practice, I think the Government is merely coming up with a point estimate that it deems realistic and uses it to make decisions as if it were a fixed price. I can see a contracting officer making an award to Offeror A in the original scenario and claiming that the Government would save $5 million. However, you can't credibly make that claim without mentioning the probability of that happening.

I think the Government has come up with a technique that seems reasonable to lawyers but would seem deficient to a professional cost estimator. If the Government is going to do a cost realism analysis, I think they need expertise in risk and uncertainty analysis to evaluate cost estimates. Contracting officers typically don't have that expertise, nor do price/cost analysts. DoD trains its cost estimating community in risk and uncertainty analysis, but I haven't heard of them ever assisting in cost realism analysis. 

Alternatively, maybe we shouldn't have offerors compete on cost estimates.