I am in the process of developing letters to contractors to open discussions on a project I am currently chairing an evaluation board for. I have researched FAR, DFAR, AFAR and EFAR and have not been able to determine if I have the authority to sign as Chairperson, or does the C.O. have this authority? In looking at FAR Part 15.306(d)(1), it states "Discussons are tailored to each offeror's proposal, and SHALL be conducted by the contracting officer with each offeror within the competitive range". Does this mean the C.O. must sign the letter notifying the contractors the Government is opening discussions?

Thanks Much!

By Vern Edwards on Monday, July 01, 2002 - 11:20 am:

Yes, the contracting officer must sign the letter. See FAR § 15.303(c), which says, in pertinent part:

"The contracting officer shall... (2) After receipt of proposals, control exchanges with offerors in accordance with 15.306[.]"

By joel hoffman on Monday, July 01, 2002 - 12:56 pm:

Vern, can the Contracting Officer appoint an authorized negotiator, who could then sign correspondence using the title: "Authorized Negotiator"? happy sails! joel

By techie on Monday, July 01, 2002 - 04:48 pm:

From my viewpoint, one shaped by being chair of teams and COTR on some fairly large technical programs, I don't like the idea of a chair directly communicating with offerors. Even on projects I essentially shaped and where the CO came to me for contractual brainstorming I insisted we have exacting coordination. Yes, I developed most of the questions, I answered most of the questions, I developed most negotiating positions and I worked everything through the contracting officer. In some cases I knew I could get a rubber stamp type approval yet insisted on more.

Why? It is too easy to get wrapped around a horrible axle of not speaking with one voice. There is another substantial reason. Nobody, nobody with good sense anyway, will rely on what they think they are saying as being what the reader will hear in these situations. That is why anything I wrote at the office for substantial effect always had a proof reader who had some understanding of the porblem. If it involved contract matters the key proof reader was the CO. In general what I wrote in that area stood and went out. Often it went with slight rewording and once in a while it got a major revision after I realized what I thought would be heard was not what I wanted at all because someone else close to the problem had taken if differently.

No, from both technical and contracting sides I do not like the idea of a team leader or anyone else playing solo here. By the way, except for the most routine stuff the CO shop ran their drafts by me in the same way. Some staff didn't like it at first, but it quickly was seen as win-win. Things go a whole lot better with precise and exacting coordination and communication. It also quickly snuffs all attempts, from government outsiders to offerors or contractors, to sniff out cracks for exploitation against the program's best interest.

By Vern Edwards on Monday, July 01, 2002 - 04:49 pm:

Joel:

I suppose that, absent an agency restriction, the CO can authorize someone else to sign a letter to offerors or to actually conduct discussions. It is not unusual, for example, to have a contract specialist conduct discussions, or sole-source negotiations. There was at least one GAO decision under the pre-Rewrite FAR in which it was held that the CO could delegate the authority to conduct discussions.

Vern

By joel hoffman on Monday, July 01, 2002 - 08:54 pm:

Anon, your Agency and Army source selection procedures require that you prepare pre-negotiation objectives, where you inform the KO what you intend to discuss with each offeror. .

Because you are with the Corps of Engineers, the AFARS requires a PNO for source selections (5115.406-1) and EFARS requires that it be approved prior to discussions. The KO will be aware of and approve what will be discussed with each offeror. Your KO can either provide notice (an extra letter) that you are the authorized negotiator and let you sign letters to the offerors, or the KO can sign the letters at the same time he/she approves the PNO. I recommend having the KO sign the notification letters at the same time as they approve your PNO. If you want subsequent authority to communicate in writing and the KO agrees, include such authority in the KO's initial letters, notifiying the offerors of discussions. Kills two birds with one stone.

As to whether or not it is smart to allow an authorized negotiator to sign letters, there are arguments both ways. As far as I'm concerned, if you are conducting the negotiations and are experienced and fully qualified, why not? The other anonymous made a valid good point that it is sometimes good to have someone else's viewpoint before sending critical letters out. I personally think that is overdone. Contracting personnel in a couple of the largest construction companies in America, whom I dealt with over the last four years, couldn't send ANYTHING of substance out, without corporate review and approval. They looked like complete idiots to us and were slow and unresponsive. happy sails! joel

By joel hoffman on Monday, July 01, 2002 - 08:56 pm:

Sorry "techie", that I referred to you as "the other anonymous". I couldn't read your post, after I had previewed mine. happy sails! joel

By joel hoffman on Monday, July 01, 2002 - 10:23 pm:

Thanks, Vern. happy sails! joel

By techie on Tuesday, July 02, 2002 - 10:07 am:

Joel, I agree the example of your people who had to go through corporate is overdone. I do not think what I suggested is comparable. That CO was part of a small team of key people and coordination never took more than a few hours. If the CO was out for some reason there was a contract specialist familiar with the issues in the office. The program has other problems that will not be fixed by good coordination if one has to go through a complex chain of people simply adding initials.

I disagree that it "is sometimes good to have someone else's viewpoint before sending critical letters out" and maintain it is always good and even necessary. In a routine memo it is good. For a matter of substance it is necessary. I have seen too many cases of real trouble, taking considerable amounts of time and even money to clear, caused by misunderstandings that would probably have been avoided with an informed proofreader at the start.

Blunders are usually obvious and may result in a clarifying call from the reader. Cases in which the writer and reader both see different clarity can be disaster. That is why when I had the final say in matters I still ran such correspondence through another viewpoint. It falls into that category of things where it costs a penny now and a dollar later if not done.

That leads to another problem now prevalent. People are increasingly entering fields requiring language skills without those skills. Even the best writer makes punctuation and grammatical mistakes. I am not thinking of that at all. I am thinking of words absolutely misused. We see homonyms and even non words used here with fair frequency. Simply read Wifcon posts to verify that.

Contracting depends on mutual understanding of written agreements. Understanding what the message may be involves running through possible matches and one is never certain. If both reader and writer are poorly skilled results are unpredictable. More eyes may not necessarily be better under these circumstances, but there is an increased chance of catching mistakes with a knowledgeable proofreader.

By Vern Edwards on Tuesday, July 02, 2002 - 10:35 am:

I agree with techie. I believe further that source selection clarifications, communications, and discussions should be closely and strictly controlled by the contracting officer.

The rules about exchanges of information during source selection are complex. FAR § 15.306 is unclear in many ways and, in any event, cannot be understood without extensive knowledge of GAO case law. Moreover, the GAO and the U.S. Court of Federal Claims, both of which have protest jurisdiction, do not agree on all points.

It is for these reasons that it is best for one person to control exchanges between the government and offerors during source selection, whether written or oral, and I think that person should be the contracting officer.

I do not think that the contracting officer should necessarily be the only person to speak during face-to-face or other oral discussions. But I do think that the contracting officer should maintain control over the proceedings.

I also think that for the sake of control, all written communications between the government and the offerors during source selection should be signed by the contracting officer.

By joel hoffman on Tuesday, July 02, 2002 - 12:11 pm:

I don't necessarily disagree with your last statement, Vern. I always had the KO sign correspondence, so they were up to speed.

However, a COE Contracting Officer in a larger District has 100-200 open contracts, perhaps 3 or 4 on-going source selections at any time, 3 or 4 sole source negotiations on-going, plus their other Contracting Division duties, including supervising the CT workforce. Contracts involve services, JOC, construction, etc. They don't have time to be conducting all the negotiations and discussions. We have professional negotiators, who've been doing this for years, to assist the KO or to separately handle negotiations and discussions. You don't have to be a KO with an unlimited warrant to negotiate contracts. The KO is in charge, but would become a maniac, if they had to lead every discussion or negotiation. We have negotiated and awarded sole source and source selection method contracts for years this way, without many problems.

Now, that is from the perspective of contracting for 1-80 million dollar projects for the Army Corps of Engineers, not R&D or huge weapons contracts, systems contracts, etc. For a formal source selection, I would agree with the level of KO involvement and control you are speaking of. happy sails! joel

By techie on Tuesday, July 02, 2002 - 01:52 pm:

My earlier post is a case on point about proofing. I don't have the luxury of any proofreader now. The comment "Understanding what the message may be involves running through possible matches and one is never certain" is out of place. What did I mean to say? "I am thinking of words absolutely misused. We see homonyms and even non words used here with fair frequency. Understanding what the message may be involves running through possible matches and one is never certain."

The selection period is one full of danger from misunderstanding. People are almost always new or in a new combination even if the agency and company are long term associates. Misunderstandings due to these mistakes are much less likely once a contractor has been selected and everyone is past the starting phase. We do learn and account for style and a common usage develops.

I can understand, to some extent, Joel's apparent point about using proven professional negotiators to handle the details of fairly standard and routine construction contracts. I think the situation of a COE Contracting Officer having "100-200 open contracts, perhaps
3 or 4 on-going source selections at any time, 3 or 4 sole source negotiations on-going, plus their other Contracting Division duties, including supervising the CT workforce" describes a different problem (I do consider it a problem) entirely.

Vern mentions "control." At this stage there are really several controlling authorities. Technical management may actually control the specification, despite it being in the contracting officer's hands for the solicitation. The contracting officer is in control of the agency's dealings with potential contractors. Other powers in an agency may exercise control by telling the contracting officer the whole thing is off. In one case I've seen a contracting officer abruptly reassigned for failure to understand other authorities. There are always others in the game. All of this can collapse into shambles if there is not tight coordination and cooperation. This is absolutely necessary in most developmental work.

I think the supposedly less complex fields are missing something vital if they dismiss the need for similar procedure. I do not see the issue nearly so much as control as in making sure the team is in agreement and understanding before it goes public. At critical stages with policy nothing will create as much havoc as outsiders, in and outside the agency, hearing and reading different things from the core team. The process I describe is as valuable for building and maintaining internal understanding as it is in preventing external misunderstanding. Once it has been in place long enough one finds even uncontrolled communication tends to be surprisingly self controlled.

By formerfed on Tuesday, July 02, 2002 - 01:53 pm:

Joel,

I've got a couple of comments on your last post. These aren't directed to COE but the government in general. First, there aren't enough CO's (individuals with warrants). I'm a firm beliver in giving a warrant to everyone that demonstrates sound thinking and exercise of good judgment. There are too many reasons not too. Just because someone is a supervisor or manager is not a valid reason. Second, there are too many COs' (or Contract Specialists or negotiators) that lack training and experience to effectively maintain control of proceedings. Some of these lack the necessary skills to lead discussions or technical understanding of the subject of the procurement. Grooming people to do this job is essential. It's too bad the formal training doesn't include more of the "soft" skills.

By Vern Edwards on Tuesday, July 02, 2002 - 05:18 pm:

We need to get clear about contracting officer responsibility.

First, we must distinguish between simple price negotiations in non-competitive procurements and negotiations/discussions in source selection. There are few rules for the conduct of non-competitive price negotiations. However, such negotiations are more than a matter of bargaining skill. The government's negotiator must understand many rules, such as the rules about the submission and certification of cost or pricing data and about the difference between cost or pricing data and other pricing information, the rules about the application and interpretation of the cost principles and the cost accounting standards, and rules about the proper application and interpretation of prescribed contract clauses.

Second, in competitive negotiations there are additional rules about what must and what must not be said during discussions. Those rules have been the subject of hundreds, maybe even thousands, of protest decisions. They are not intuitive and they cannot be learned by merely reading the words in FAR Subpart 15.3.

Contracting officers are expected to know and apply the rules properly. The FAR puts this responsibility squarely on the shoulders of the contracting officer, and no one else.

See FAR § 1.602-1(b):

"No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met."

And FAR 15.303(c):

"The contracting officer shall: (2) After receipt of proposals, control exchanges with offerors in accordance with 15.306[.]"

And FAR § 15.306(d)(1):

"Discussions are tailored to each offeror's proposal, and must be conducted by the contracting officer with each offeror within the competitive range."

And FAR § 15.405(a):

"[T]he contracting officer is responsible for exercising the requisite judgment needed to reach a negotiated settlement with the offeror and is solely responsible for the final price agreement."

Underlining and italics added.

Practical circumstances may require the contracting officer to delegate some tasks to others, but delegation is all that it is, and it is of performance, not of responsibility. When it comes to getting the contract right, the contracting officer is responsible, not "technical management," and not the "team."

Techie, control is the right term.

By techie on Wednesday, July 03, 2002 - 09:30 am:

Vern,

Within the scope of the contracting officer's responsibility you have no argument. That is why I would tend to be opposed to the forms of communications that apparently are being considered here and sometimes in use.

I think you misunderstand my position. I think you well know that working level contracting officers do not have the final word on any number of matters related to a contract under consideration or even after award. The contracting officer is most certainly a part of a team. Contracting officers do have specific responsibility by law and regulation for a specific part of the total acquisition effort. They do not work in a vacuum and in fact are only one key part of the acquisition. Their actions, within their responsibility, are controlled by others.

Contracting officers can be directed to withdraw the solicitation. Senior technical management in the sponsoring organization can most certainly modify technical requirements, even (often unfortunately) during the solicitation. The contracting officer is duty bound to point out the pitfalls and costs of such changes, but woe to one standing against the agency's senior technical management when the requirement has changed. Amended technical requirements will be in the solicitation or perhaps there will be no solicitation and no contracting officer.

A contracting officer may be directed to terminate a contract or contracts for convenience when the agency's technical management is convinced the direction has gone wrong. The contracting officer must warn of and usually clean up the contractual consequences, but cannot stop those directions. Contracting officers often get new orders and have to find a way within law and regulation to deal with those orders. Look at the Army's Crusader for a very high profile case way, way above the contracting shop's head.

Within individual authority control is often the issue. I don't believe control is the most critical part of the need for coordination. Yes, the contracting officer must control those functions allotted to contracting officers by law and regulation. Financial officers must control those functions allotted to financial officers. Technical management must control the technical requirement. The point of coordination between those controlling groups is insure they sing from the same sheet of music within and without the agency during acquisitions. When they are not coordinating and on the same sheet you have an acquisition now in or headed for trouble. Some of the generally unfortunate results mentioned in the third paragraph become increasingly probable.

As an aside, there was a misconception of the IPT along these lines. Some argued the team assumed the individual responsibilities of the component specialties. No, contracts was responsible for contracts, legal for legal, technical for technical, and so on. Agencies mistaking an individual cooperative and parallel authority system, working within an IPT for efficiency, for a collective assumption of individual authorities often ran into trouble. Conversely, some contracting officers do not seem much aware of the larger issues that will drive their working lives. They are so FAR focused they do not recognize all those things (some you mentioned) beyond the FAR that fall within or influence what will be their responsibility.

By Vern Edwards on Wednesday, July 03, 2002 - 11:19 am:

techie:

I agree with you about the need for proper ahd effective coordination among persons with differing responsibilities. I also agree that contracting officers are under the control of their superiors and must work collegially with persons in other functions. Their authority is not absolute. Your points about misconceptions about the IPT concept and the narrow focus of some contracting officers are well made.

My main concern is that people recognize the complexity of the contracting function and the need for specialized knowledge in a business in which rules matter and in which the rules are often subtle and complex.

By Kennedy How on Wednesday, July 03, 2002 - 12:35 pm:

On the other hand, I, as a Contract Specialist, should be able to hand the Contracting Officer a procurement package that he could sign blindly without fear of going to jail over missing something. I should be making sure everything is there, and function like a Contracting Officer except in name only. All the KO should have to do is sign.

Yes, the KO is ultimately responsible. He has to ensure everything is in order before proceeding. It is MY responsibility that all those things are done, so when the KO reviews the package, he can sign off, and we can proceed to the next step.

He has the responsibility, yes, but we do the grunt work.

My point is this: If I do all of the things required, and I show aptitude and good business judgement, I can get a Warrant. I am not really different than I was before I got the Warrant, because I already know what I need to know to BE a KO.

Kennedy

By Vern Edwards on Wednesday, July 03, 2002 - 02:24 pm:

Kennedy:

"Sign blindly"? You don't mean that literally. Do you?

And you are different after you get the warrant -- you are responsible.

Vern

By techie on Wednesday, July 03, 2002 - 04:04 pm:

Vern,

I knew we were not really too different in view. Contracting officers do not get quite the respect I think they are due. Many in my area, science and technology, think of them as jumped up clerical people. Top government management, particularly in highly technical areas, too often has this view.

Part of the problem may be due to lack of exposure to high level contracting officers, particularly in smaller agencies. Many there think of the person processing purchase orders as a contracting officer. I once had the opportunity to watch a senior official of a small to medium sized field organization assume "she is just clerical" only to find she outranked and out degreed him. He was in an unfortunate situation since he really did need some help from her and had immediately acted on his assumption. She was very gracious.

By Kennedy How on Tuesday, July 09, 2002 - 12:23 pm:

Vern,

No, not in the literal sense. But, I guess my point is, why should I introduce, or leave out, stuff just so a Contracting Officer has something to do? I should strive to have "the perfect file" to hand to the KO, so when he does review it, everything should be there. There should be nothing missing, the file should not be coming back to me for something that is wrong.

Yes, there is the differences of being responsible. I am also responsible if I do something to send a KO to jail. The KO may be the one that takes the hit, but the contract specialist who sent the KO there bears just as much responsibility for his/her inactions. You can say the KO shouldn't have done whatever it was to send them to jail, but I counter that if a KO has to second-guess and constantly check over a contract specialist's work for errors and omissions that will get the KO into trouble, then the contract specialist isn't doing his/her job.

Kennedy

By Vern Edwards on Tuesday, July 09, 2002 - 12:35 pm:

Kennedy:

"I am also responsible if I do something to send a KO to jail. The KO may be the one that takes the hit, but the contract specialist who sent the KO there bears just as much responsibility for his/her inactions."

I'm smiling as I write this -- I'm sure that what you say will be a comfort to the KO. That and a nice cake.

Vern

By Anonymous8 on Tuesday, July 09, 2002 - 01:10 pm:

Vern,

I think that the viewpoint expressed by Kennedy makes him sound very professional, someone any KO would want to have working for her. I smiled when I read his post, but for a different reason -it is so nice to hear someone who cares about/takes pride in the job.

Yeah, the KO is accountable, but with Contract Specialists like Kennedy who take responsibility for managing the procurement, the job is a lot easier.

By Vern Edwards on Tuesday, July 09, 2002 - 01:44 pm:

Anon8:

I agree with you.

Vern

By techie on Tuesday, July 09, 2002 - 02:38 pm:

This latest discussion illustrates why someone who is supported by subordinates yet bears final responsibility needs the authority to discipline, select or deselect those subordinates.

That was the theory behind the ship's captain and authority. The captain is responsible, even if it was the junior third officer who ran the ship into the rocks. Thus the captain has vast authority. Evidence indicates that responsibility-authority relationship has weakened at sea. It certainly has elsewhere. Is that why we see so much that just does not work as expected?

By Anon2 on Wednesday, July 10, 2002 - 07:03 am:

To techie, Anon8 and Kennedy,

-- and then you could put the shoe on the other foot and have the conscientious Contract Specialist and the KO that doesn't care. That is what it is like where I work.