Sometime within the past year or so, there was a case involving dam maintenance. The issue was whether the contractor was breaching the contract by providing fewer than the number of people proposed, despite accomplishing the work. The court (or board) ruled in favor of the contractor.

Does anyone remember this case and have a cite to it? I am looking into a similar issue involving # of people proposed. Thanks.

By Joel Hoffman on Sunday, September 10, 2000 - 09:24 am:

Do you remember what legal forum it was in or anything else about it? I browsed through about 60-70 of 100 ASBCA hits with keyword "maintenance", without success. Keyword "dam" didn't identify any cases.

Your situation will probably also depend on the facts surrounding your contract formation and negotiations.
Happy Sails!

By Ramon Jackson on Sunday, September 10, 2000 - 12:32 pm:

I remember running across a case with similar circumstances while chasing one of the discussion items. It had to have been an earlier case as it was some time back, probably in the old WC. If I recall, it went into issues of whether the contract's wording bought the result, the maintenance, or the bodies, people. I think there was, as too often the case, some confusion in the requirement's wording on just what it was buying. I haven't been able to relocate the item in a brief search, but will look some more.

I found it interesting and diverted from the chase at the time because it got into a pet issue of logical determination of what the government really needs to buy and problems resulting from confused thinking on that subject. All too many requirements seem muddied on the subject and result in these disputes.

Another interesting diversion popped up in that quick search. I don't have time to find if it is a regular thing and it is likely linked from Bob's main site, but American University Law Review August, 1997 reviews the cases concerning government contracts in 1996 decided before the United States Court of Appeals for the Federal Circuit with some interesting discussion.

By Vern Edwards on Sunday, September 10, 2000 - 11:40 pm:

Ron:

The case was Omni Corporation v. U.S., U.S. Court of Federal Claims No. 96-86C, 41 Fed. Cl. 585, Aug. 20, 1998.

From the digest: "Contractor which entered into firm-fixed-price contract for the operation and maintenance of two government-owned locks and dams filed complaint seeking recovery of monies withheld by the government for failure to staff equipment mechanic positions during certain periods. On cross-motions for summary judgment, the Court of Federal Claims, Futey, J., held that contract did not require that contractor staff each lock and dam with a full-time equipment mechanic, and thus it was improper for the government to reduce the contract price and withhold monies from contractor for periods during which equipment mechanic positions were vacant."

In the text of the decision the judge points out that the government did not assert that there were deficiencies in any of the services and that even if the contract had required the contractor to provide the mechanics the government had not shown that it had suffered any damages.

By Ron Vogt on Monday, September 11, 2000 - 02:00 pm:

As usual, Vern comes through.

This was the case that I remembered reading, but neglected to save. The subscription service we use here failed to come up with it on a search.

The case is interesting in its discussion of the effect of incorporating a technical proposal into the contract. Since the government typically does this, both sides could benefit from reading it.

By Vern Edwards on Monday, September 11, 2000 - 02:56 pm:

Ron:

Allow me to suggest that Omni is not so much about incorporating proposals into contracts as it is about writing what you mean and being able to read and understand what you have written. In Omni, a contracting officer and five government lawyers managed to show to the world that they are fundamentally incompetent to write, interpret, and administer contracts. The case is embarrassing.

By joel hoffman on Monday, September 11, 2000 - 06:14 pm:

This was a poorly executed attempt to mix prescriptive and performance specifications. The Government did not establish a minimum staffing requirement in its RFP or contract. It tied adequacy of staffing to "successful performance" and could not establish any deficiency in actual performance. Happy Sails! Joel

By Ron Vogt on Monday, September 11, 2000 - 09:02 pm:

Joel and Vern,

You are correct that the primary issue is contract interpretation. Part of the court's analysis was in the interpretation of the incorporation language, and that's the part I was interested in. I think the court agreed that had the contractor actually proposed a higher level of service, as opposed to just staffing, then those proposed capabilities would have become contract requirements. In the alternative, had the solicitation called for certain staffing levels and the contractor proposed a minimum level, I believe the court would have held that there was deficient performance.

My interest right now is in how an "incorporated" proposal will get interpreted, and this case helps in that analysis. It can be a complicated issue, because proposals are often filled with promises that exceed solicitation requirements, or that promise certain approaches to the work. This case shows that a proposal's promises must be related to contract requirements before they become additional binding requirements.

By Ramon Jackson on Monday, September 11, 2000 - 11:38 pm:

Ron, I believe you are opening one of Vern's favorite issues: promises (offer) vs. proposal. There was quite a bit about the problems resulting from confusion in this area on the old Water Cooler.

This is an area that needs to be dealt with repeatedly, particularly when people start talking about incorporating proposals. It needs to go all the way back to the requirements documents. What are we asking for? Keep the car in excellent running shape or deliver in accord with our (often non expert) estimate that to do so requires two mechanics on the job?

It is really not amusing (despite wry grins) to hear the same managers who forced confusion and demanded a particular staffing level vice performance criteria do an about face and howl about contractor people "standing around."

By Ron Vogt on Tuesday, September 12, 2000 - 01:09 pm:

I vaguely recall that discussion. Is it in the archived site, or was it pre-2000? I am interested in reading it because I am looking at another issue involving the distinction (if any) between a proposal and an offer.

By Eric Ottinger on Tuesday, September 12, 2000 - 02:03 pm:

Ron,

If you have access to the Pentagon Library, you can find back issues of the Cibinic and Nash Report. They go on at some length on this topic.

You should be warned that most of this takes the form:

"This is simple and self-evidently correct, and we can't understand why the policy makers in the Government don't listen to us."

In short, this is personal opinion, not policy.

Eric

By Vern Edwards on Tuesday, September 12, 2000 - 02:28 pm:

Ron:

I can summarize my position for you:

The essential elements of a contract are offer, acceptance, and consideration.

FAR 2.101 defines offer as "a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract." It goes on to say that in negotiated procurement an offer is called a "proposal." This raises a question: What kind of response, if accepted, would bind the offeror? The answer is: a response that promises to do or refrain from doing something.

In most instances, an offer is a promise. (Restatement, Second, Contracts § 24, Comment a.) A promise is "a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." (Restatement, Second, Contracts § 2(1).)

However, despite FAR 2.101 and the principles of American contract law, FAR Part 15 uses the word "proposal" to include all statements made by offerors: promises, statements of fact, and statements of opinion (analyses, estimates, predictions, etc.). For example, offerors are often required to include past performance information in their proposals. Past performance information usually consists of statements of fact and opinion. Such statements are not promissory in nature. Offerors are often required to submit a "cost breakdown" of their proposed prices. Such breakdowns are estimates, not promises.

Only promises are binding upon acceptance. This is a fundamental tenet of American contract law.

I have argued on many occasions that FAR Part 15 should be changed to make it clear that a proposal consists of an offer (promises) and other statements, and that only the offer is binding upon acceptance. I have long taught my students that when they write their RFPs they should provide separate instructions for the preparation of (1) the offer and (2) the other information that they want the offerors to submit. However, most COs write instructions for the preparation of "technical" and "management" proposals without thinking about the kinds of statements that they are asking the offerors to make and whether those statements would be promises or merely plans (which are statements of contingent intention, not firm commitments) or statements of policy.

This discussion would not have helped the contracting officer and government lawyers in Omni, because they simply couldn't read their own contract language.

By Vern Edwards on Tuesday, September 12, 2000 - 04:20 pm:

Ron:

I'm always amused when someone takes a potshot at Nash and Cibinic. Some Federal officials find them to be very persuasive. If you want a case about incorporating proposals into contracts you should look up Ferguson-Williams, Inc., ENGBCA No. 6482, Dec. 29, 1999. That case is about a dispute between the Corps of Engineers and the contractor over whether the contractor could apply G&A to certain materials purchased for performance. The Corps' RFP included a clause that prohibited application of G&A to such materials, but the contractor had said in its cost "proposal" that it would, in fact, apply G&A to the materials.

The Corps awarded the contract without discussions and the contractor included G&A in its invoices. The Corps CO denied the request for G&A and the contractor appealed, claiming, among other things, that the cost proposal was a part of the contract. The Corps of Engineers Board of Contract Appeals denied the appeal. In doing so, it held that the cost "proposal" was not a part of the contract, stating:

"The backup cost and financial information supporting proposed prices are generally not incorporated into negotiated contracts. See Bums and Roe, Inc., EBCA No. 102-11-79, 81-2 BCA P 15,386. See also the general discussion covering this point in Ralph Nash, 'The Status of Technical, Management, and Cost Proposals: Are They Part of A Negotiated Contract,' 7 Nash & Cibinic Report ¶ 37 (1993). This conclusion follows directly from the language of FAR 52.215-16, 'Contract Award.'"

Underlining added.

So, Ron, as you can see, Nash and Cibinic manage to influence some people -- like board judges. Their personal opinions carry weight. One way to check their influence is to search Federal court and board decisions to see how many times the judges have cited Nash and Cibinic as authority.

By the way, in addition to failing to acknowledge a "simple and self-evidently correct" fact of American law, the FAR Council, in writing the FAR Part 15 Rewrite, managed to delete the protective language that had appeared in FAR 52,215-16 and that helped the Corp win this case. Now, COs who are ignorant of the difference between offers and other statements in proposals may not be protected.

Of course, this case never would have reached the board had the Corps' RFP made a clear distinction between the offers and the other statements in the proposals.

By joel hoffman on Tuesday, September 12, 2000 - 05:06 pm:

One need only read enough Board and Court cases, referring to "Nash and Cibinic", to see that their "personal opinion"(s), while not always "policy", seem pretty persuasive! Happy Sails! Joel

By Ron Vogt on Tuesday, September 12, 2000 - 05:14 pm:

We appear to have exhausted the dam discussion at this point (no pun intended) (oh all right, it is), and are now discussing the incorporation of proposals. I just noticed that a new discussion has opened up in a folder entitled "Incorporating Proposals," and I suggest we move over to there. I have some thoughts on it, and I suspect that others are not done either.

By Eric Ottinger on Tuesday, September 12, 2000 - 10:00 pm:

Actually, Vern,

You get right defensive and worked up.

That wasn’t a pot shot. It was exact.

I said that your argument takes the form, “we can't understand why the policy makers in the Government don't listen to us," and you went right ahead illustrating my point.

You evidently have an attitude toward the Part 15 Rewrite. I don’t share it.

Every so often, someone will argue that a policy is good because it allowed the Government to win a few dollars in a squabble with a contractor. In my opinion, that is a very poor basis for policy. Good policy minimizes the opportunities for petty squabbles.

Eric

By Vern Edwards on Tuesday, September 12, 2000 - 10:47 pm:

Eric:

There was nothing exact about what you wrote concerning the Nash & Cibinic Report. You didn't even get the name of the publication right. Your comment was a potshot, and you know it. You dismissed detailed explanations of considered opinions with the insult, "You should be warned that most of this takes the form: 'This is simple and self-evidently correct, and we can't understand why the policy makers in the Government don't listen to us.'"

Those two men have made cogent arguments in support of their positions, and you have never cogently addressed yourself to them. And you haven't addressed yourself to the one that I summarized for Ron. You don't seem capable of logical analysis and counterargument on the basis of premises and conclusions.

With regard to the FAR Part 15 Rewrite, I have concluded that it is poorly written, and that the poor writing reflects poor thinking. I gave reasons for this conclusion many times at the old Water-Cooler and Open Forum.

I agree that good policy minimizes the opportunities for squabbles, that is why Nash, Cibinic, and I advocate clearing up the prevailing confusion about proposals and offers, which was made evident in the Ferguson-Williams decision and others.

It is one thing to disagree with someone on rational grounds. It is another thing entirely to insult two fine men who have made and continue to make very great contributions to our profession by dismissing their work as mere egotism. They are friends of mine and I won't stand for it.

By Anonymous on Wednesday, September 13, 2000 - 09:03 am:

Eric, Vern,

Bob has done an excellent job in establishing this site. Please don't run it down because of petty differences of opinion. Please keep the discussions on a professional basis and eliminate the "mud-slinging". I enjoy this forum and reading people's opinions, but would like to see it remain informative. I agree with comments you and Eric both make from time to time, but I also disagree with some of those opinions. Lt's keep it professional and not get personal. Thanks

By Eric Ottinger on Wednesday, September 13, 2000 - 10:11 pm:

All,

I see nothing in my posting that I would characterize as either insult or mud slinging. What I characterized as opinion IS opinion and IS NOT policy.

I hope I haven’t insulted anyone intentionally or otherwise. I would recommend the Nash and Cibinic Report to anyone. Further, their authoritative texts have on several occasions provided invaluable help to me.

(And, I am well aware that Cibinic and Nash are cited by judges. In fact, when I was very recently tasked to research a significant issue, I started with the CCH (the old hard copy) which led me to a case, in which the judge cited Cibinic and Nash, which led me back to one of their books; which is where I should have started in the first place. )

Vern, and sometimes his colleagues, adopt a dismissive tone when they talk about policy makers in the Government. I would rather that they didn’t.

And yes, they sometimes just flat out make mistakes. I have always assumed that Vern’s senior colleagues have the maturity and good sense to double check their research, check the current case law, then make revisions where necessary.

Anon,

You need to read the newsletters, I don’t question that Nash and Cibinic have the standing to question policy decisions that they don’t agree with. They do it in a gentlemanly fashion.

If it is the habit in this forum to characterize mere disagreement as “mudslinging” or insult, we will have a very hard time discussing issues in an objective fashion.

Further, when we don’t distinguish our personal opinions, however authoritative, from policy, we risk misleading our less experienced readers.

Incidentally, I would not characterize the underlying issue as “petty.”

Vern,

You can stand, sit or do whatever you want. If my characterization were not correct you could have made your point by providing better facts. The fact that you went off into the ad hominum speaks for itself.

I haven’t insulted your friends, intentionally or otherwise, and I wouldn’t wish to.

Eric

By Vern Edwards on Wednesday, September 13, 2000 - 11:37 pm:

Anonymous, et al.:

I agree with Eric that our comments did not amount to "mudslinging." Actually, our give and take is relatively mild by normal academic standards. Read the letters in The New York Review of Books sometime. Nevertheless, I'm sorry if you and others were upset by the tone of our exchange. I'm sure that if Bob thinks we're getting out of hand he will moderate his site appropriately.

Eric:

There was nothing correct about what you said in any of your last three postings, and I have provided excellent facts in refutation of your derisive attack on two good men and arguments in support of the proposal/offer debate.

Your comments about Ralph and John were insulting. Not the part about their arguments being merely a matter of personal opinion, but the part about their arguments amounting to nothing more than: "This is simple and self-evidently correct, and we can't understand why the policy makers in the Government don't listen to us." They have made detailed and well-reasoned arguments. All you have had to say is that if it's in the FAR Part 15 Rewrite, then it's good enough for you the way it is.

I did not make an ad hominem attack on you when I responded to your insulting comment. I never even mentioned your name, much less said anything about you. Rather, I defended my friends and colleagues by providing a documented example of the high regard in which they are held by Federal officials and the influence that they have had on Federal contracting. Indeed, it was you who addressed me directly and made personal comments.

Those of us who try to take reasoned positions and then publish them for the world to read and consider ask at least fair consideration and reasoned criticism. I don't mind an attack on my premises and conclusions, neither do Ralph and John. Indeed, they and I welcome those kinds of attacks, even harsh ones. We're trying to engage peoples' minds.

But your kind of attack -- accusing two fine professionals of basing their arguments on nothing more than egotism -- is, well, the mildest thing that I can call it is crude. (I held back for you, Anonymous. I had something much harsher in mind.)

If you were intellectually able and courageous you would write a letter to The Nash and Cibinic Report, or an article for Contract Management magazine, or an article for Bob to publish at Wifcon, taking Ralph and John on in reasoned debate, instead of sniping at them in this forum. Ralph and John would gladly publish your letters in their Report. Of course, they will respond, perhaps harshly. John once called something I wrote "balderdash"! (I got lots of phone calls about that one. I couldn't tell what my friends were saying, they were laughing so hard.) Of course, I wrote him back and gave him hell for it. He published that, too. Well, as they say on the ranch, "Don't get on that horse if you're scared to get bucked off. Stay home and feed the chickens." Go on, Eric, write to them. Tell them what you think their argument amounts to. Get on that horse.

You know what was in your heart when you wrote what you did about Ralph and John. You know it and I know it.

Sorry, Anonymous.

By bob antonio on Thursday, September 14, 2000 - 06:04 am:

Anonymous, Eric, and Vern:

As always, I agree with each of you. I have an idea for you to consider. Understanding that intellectual exercise includes disagreement and exploration of each others' positions, would it make sense to add a new topic for extended discussions about each others' positions? This may make sense when the discussion takes a turn from the original discussion and becomes heated.

How about if we have a topic called "The Battleground" or something else where disagreements over positions can be discussed and argued. I will add that to the "Propose a Topic" area and hope you all add your thoughts to that idea.

By Eric Ottinger on Thursday, September 14, 2000 - 07:29 am:

Vern,

What I said was, “They go on at some length…” and “… most of this takes the form:”

You took it upon yourself to interject “amounting to nothing more than.” I meant nothing of the sort. I wouldn’t send someone to the Pentagon library to dig up back issues for the purpose of reading something that was not “detailed and well-reasoned.”

You also interjected this business about “mere egotism.” I said nothing of the sort. I believe their arguments are substantive and merit serious consideration.

As for the ad hominem may I quote, “Your comment was a potshot… You don't seem capable of logical analysis and counterargument on the basis of premises and conclusions.”

If that wasn’t a personal attack, may I ask what would qualify?

Bob,

How about, “Punch and Judy Show,” or “Mud Wrestling Pit?”

It’s a thought. People who write to me direct say they enjoy me and Vern but they hesitate to participate because the dialogue is at such a “high level.”

I am flattered and baffled. I much prefer talking to motor sergeants over debating with lawyers and academics. That’s about the level I intend.

Maybe you should just tag the thread with the word “Controversy.” Also, it is a good practice to break off and continue with a separate thread when the thread can get inordinately long.

Eric

By bob antonio on Thursday, September 14, 2000 - 07:51 am:

Eric:

Personally, I enjoy both you and Vern. However, my personal opinion is that of a fellow user. I also realize that new users increase the vitality of this thread. My goal is to get as many users as possible to this forum from industry, academia, and government. To do that, I must attract them in some manner. A very small percent of users will interact with an internet site. So, I need everyone's help to improve this forum and increase participation in it. Any suggestions are important to me and to this forum.

The more users we get to this forum the more we can do with it. We have heads of several contracting activities either reading or posting to this forum. We also have contractors, legal firms, writers, educators, etc. either reading or posting here. We are off to a good start and we started with a good base of contributors.

I honestly view this as our page--not mine--I have about 700 other pages. So it is up to us to make this the best it can be.

By Anonymous on Thursday, September 14, 2000 - 08:45 am:

Eric, Vern

I won't post again with respect to this issue. You are right, the undelying issue certainly isn't "petty", but your bickering certainly detracts from that issue. I'm sorry you took it so personally and decided to continue.

By Vern Edwards on Thursday, September 14, 2000 - 09:26 am:

Everybody:

Peace be with us.

Vern