SPS/PD2

So in your scenario we would have the contractors put in the contract clauses designed to protect the government's/taxpayer's interest?  Wouldn't that be like putting the fox in charge of the hen house?

Although an intriguing idea, and an interesting discussion, but I don't know that it would gain any traction. Most contracting officers are not lawyers and so having a CO try to review every clause that the contractor would try to slide in wouldn't be feasible.

Also, since PD2 (granted, it's been a few years since I've used it) builds the contract from the solicitation, is it your proposal that the contractor would also develop the solicitations?  What about the SOW/PWS? I'm going to assume your answer is no to this to which I'll respond with, "If that is the case, then we will still need some type of contract writing system to do the solicitations so why not keep it to move them into the contract?"

I think there may be more "major" hurdles than just WAWF and FPDS....

Desparado said:

So in your scenario we would have the contractors put in the contract clauses designed to protect the government's/taxpayer's interest?  Wouldn't that be like putting the fox in charge of the hen house?

Although an intriguing idea, and an interesting discussion, but I don't know that it would gain any traction. Most contracting officers are not lawyers and so having a CO try to review every clause that the contractor would try to slide in wouldn't be feasible.

Also, since PD2 (granted, it's been a few years since I've used it) builds the contract from the solicitation, is it your proposal that the contractor would also develop the solicitations?  What about the SOW/PWS? I'm going to assume your answer is no to this to which I'll respond with, "If that is the case, then we will still need some type of contract writing system to do the solicitations so why not keep it to move them into the contract?"

I think there may be more "major" hurdles than just WAWF and FPDS....

My opinion regarding the "fox guarding the hen house" is that no more protection is offered if the KO were to originate the clauses in the contract and make a mistake than if the contractor were to make a mistake.  Perhaps it will create a more proactive acquisition force that understands clauses better.

Solicitations can be created through options like Fedbid, fedbizopps, GSA eBuy, etc.

The SOW/PWS would be created by the Government, of course, and solicited through the above.

Of course there are countless other hurdles because I have a primitive understanding of the complexities at stake - but like you said - it's an interesting discussion.

PepeTheFrog encourages both critical thinking and outside-the-box thinking, which are not always the same.

There's a practical wisdom behind the contract interpretation doctrine of contra proferentem: with power comes responsibility. Ambiguities in the contract will be interpreted "against the drafter," because he who drafts the document has power. So, he should also have responsibility. Give with one webbed hand, take with the other.

Writing a contract provides power. Why would the Government want to cede this power to contractors? Is it appropriate for the Government to abdicate this responsibility to contractors? (PepeTheFrog thinks not.)

shall7: If you owned a business where you relied on subcontractors, would you cede power to all your subcontractors and let them write all the subcontracts? PepeTheFrog would never run a business that way, and doubts that many successful businesses operate that way. Look up "redlining" contracts-- the power struggle of who writes and edits contracts is pervasive in (private) contract negotiations. Why would any entity, Government or private, willingly give up all that power? Simply to be lazy? Because the contract writing (software) system is inferior?

Fix the contract writing (software) system before you decide to give up contract writing altogether. Don't throw the beautiful baby frog out with the scummy pond water!

Desparado said:

Wouldn't that be like putting the fox in charge of the hen house?

Yes-- PepeTheFrog agrees with Desparado.

PepeTheFrog said:

PepeTheFrog encourages both critical thinking and outside-the-box thinking, which are not always the same.

There's a practical wisdom behind the contract interpretation doctrine of contra proferentem: with power comes responsibility. Ambiguities in the contract will be interpreted "against the drafter," because he who drafts the document has power. So, he should also have responsibility. Give with one webbed hand, take with the other.

Writing a contract provides power. Why would the Government want to cede this power to contractors? Is it appropriate for the Government to abdicate this responsibility to contractors? (PepeTheFrog thinks not.)

shall7: If you owned a business where you relied on subcontractors, would you cede power to all your subcontractors and let them write all the subcontracts? PepeTheFrog would never run a business that way, and doubts that many successful businesses operate that way. Look up "redlining" contracts-- the power struggle of who writes and edits contracts is pervasive in (private) contract negotiations. Why would any entity, Government or private, willingly give up all that power? Simply to be lazy? Because the contract writing (software) system is inferior?

Fix the contract writing (software) system before you decide to give up contract writing altogether. Don't throw the beautiful baby frog out with the scummy pond water!

Yes-- PepeTheFrog agrees with Desparado.

Well said PepeTheFrog; that's a very strong argument.

After 40+ years of experience in contracting, which included time as a government contract negotiator, contracting officer, chief of two contracting offices, and headquarters staffer, I'd turn contract writing over to contractors in a heartbeat. That's the way it ought to be, the offerors offer and the Government accepts. That's the power. The Power of Acceptance or Rejection. Let the offerors write the statements of work, just like they do in the SOO process.

Think of it. Free from all that RFP-Contract writing hassle. By God, why didn't I think of it?

Great idea, shall7. So now what? Don't let it just die. I'd toss that baby frog out without a second thought.

Somebody--propose it as an innovation!!!!

This might work for the large defense contractors but the mom and pop small businesses my agency deals with are not going to have any contract writing system available to them or a clue on how to write one.  Got to think small business.

Boof said:

Got to think small business.

No I don't. I can think anything I want.

I would still never do it. Shall7, I believe you made the assumption that the contractor would accidentally put in a wrong clause. I would propose that there would be some or many that would intentionally insert clauses that would slant things towards them, thereby causing the government to have to hire a plethora of lawyers just to interpret them all in order to protect the government's interest. I rarely disagree with Vern, and so it gives me pause to do so this time, but I think that the Government should be in control of the clauses within the acquisition and the writing of the contract itself. Are we perfect?  No, but we are the ones responsible to the taxpayers whereas the contractors are only responsible to themselves (or their stockholders). I still believe having them put in the clauses would be putting the fox in charge of the hen house. The evaluation could also be a nightmare as now the contract provisions and clauses would almost surely have to be another thing to evaluate and/or negotiate. I think you would lose so much time/money between lawyers and evaluation time that you would lose any benefit gained from trashing the contract writing systems.

Vern, you want to let the contractors write the RFP? How could that work? Wouldn't they tailor it so that their company wins the "competition"?

Now that being said, I have no objection to them writing the PWS/SOW, which of course is the concept behind using a SOO (which is not used nearly as much as it should be, imho.

The small business point of view is just one reason why I don't believe this won't ever gain traction. There is no way the small business community with their influence on Congress will ever let this happen for the reasons Boof mentioned.

Desparado said:

Vern, you want to let the contractors write the RFP? How could that work? Wouldn't they tailor it so that their company wins the "competition"?

No, I don't want to let them write the RFP. I want to let them write their proposal for a contract. The Government would still issue an RFP, but instead of including a model contract, the contractor would propose one. The Government's RFP would instruct them to submit an SOW or specification and insert all of the clauses required by FAR and any others that they like. The Government would then evaluate proposals, choose one as the basis for negotiations, and negotiate to agreement with the selectee.

Would the contractors tailor their proposals so that their company would win? What do you think? Of course they would, just as they do now. The Government picks the winner by choosing which proposal to accept.

Desparado said:

The small business point of view is just one reason why I don't believe this won't ever gain traction.

I don't think this will gain traction either, but not for the reasons that you and Boof do. I don't think so because I know that while bureaucrats love to write memos about innovation, they have no imagination.

Another reason is that agencies use the automated contract writing systems to help them satisfy their general hunger for data. All the youngsters are doomed to lives as robots in cubicles, chasing electrons. At some point in the future they'll be able to spend a day at work without ever talking to another human being.

Boof and Desparado, would you have objections to allowing large businesses to draft contracts when the contractor is a sole source?

As for including the wrong clauses in contracts, in my experience, it is a common occurrence now with contracting officers.  When this is brought to the contracting officer's attention, the common response is if the clause doesn't belong in the contract it will be self deleting, a reverse Christian Doctrine.

I like it. We do this every day when entering into agreements or contracts for things such as mortgages or car loans or purchase orders for home improvements... This sure would cut down on the paper pushing aspect that today's specialists and KOs seem to do. 

Vern, why don't you think this would be adopted? Couldn't that same data be obtained by congress through reporting of the transaction? Completing an FPDS transaction to report the contract would only take minutes and not all agencies use contract writing systems, and congress still obtains data on that agencies procurements.

Boof and Desparado, why don't you like it? Do you both draw up every agreement that you enter into, or do you rely on your decision making ability, critical thinking skills, ability to read, and for those purchases that warrant it, a trusted legal opinion, on whether or not you should enter into those contracts?

uva383 said:

We do this every day when entering into agreements or contracts for things such as mortgages or car loans or purchase orders for home improvements.

Mortgages and car loans involve banks, and banks have far, far more power than you. That's why you're requesting a loan from them, and praying your credit score, income level, and other factors is sufficient to allow you the honor of paying interest in return for a lump sum. When you say "We do this every day," you're actually describing the current system where the Government writes the contract, not the proposed system where the contractor writes the contract. In the current system, the party with the most power writes the contract. It is largely a "take it or leave it" situation (for all but the most wily negotiators) or contract of adhesion. Again, PepeTheFrog thinks the relative power of the parties is what should (and usually does) determine who "writes" (or has the most influence upon) the contract.

Sidebar: Now, a purchase order for home improvements is another story. PepeTheFrog guesses that many homeowners think they're in the same situation: They must accept whatever contract is written by the construction contractor, with little variation. However, in this scenario, PepeTheFrog encourages those who frequent these discussion boards to take the reins and write the contract. Your bargaining power is much greater. There are many construction contractors. Consider yourself the more important party-- it's your house, after all. Nature abhors a vacuum, so grab power when you can.

But back to the discussion: Which type of scenario fits Government contracting? Banks (unequal parties, "take it or leave it") or small home improvement contracts (room for bargaining). In PepeTheFrog's opinion, most Government contracts are largely "take it or leave it" (Government has far more power). The exceptions are when the contractor has something special, unique, or far superior to other contractors, e.g. a patent, economies of scale, or a team of lobbyists.

The United States Government or the DoD is the largest buyer of goods and services. It's good to be the King, with a huge sack of gold coins, continually replenished by the serfs (excuse PepeTheFrog, taxpayers). Everyone wants those gold coins, so they want to contract with the King for goods and services. Therefore, the King largely dictates the terms of the contracts. Again, why would the Government willingly give up this power?

Contracting officers make enough mistakes under the current "training wheels" system of mandatory clauses and automated contract writing software. If you take off those training wheels, contracting officers will find ways to not just fall off their bicycles, they will also crash the bicycles in comical, fiery explosions. 

If PepeTheFrog is wearing a Government badge, PepeTheFrog would never let this idea fly.

if PepeTheFrog is wearing a contractor badge, PepeTheFrog thinks this is the greatest idea the Wifcon community has ever proposed, and wants to send a Thanksgiving turkey every year to shall7. PepeTheFrog wants to know which agencies will spearhead this wonderful idea, so PepeTheFrog can adjust his business capture strategy.

Pepe:

I think you're confusing the task of contract writing with the power to impose terms. They're not the same.

Vern,

I agree they can be distinguished, but there is significant overlap. I think your past attitude and advice about writing the acquisition plan (contracting vs. program manager) is applicable to contract writing:

*begin quotation*

"As the chief of a contracting office, I would insist that contracting always write the acquisition plan. He or she who writes the acquisition plan gets the first shot at steering the destiny of the acquisition. As a leader, I would want that power and influence. I wouldn't want to be just an implementer. Anybody can do that. I would want to be at the helm. I would want the power to say: This is that way that it ought to go. I'd be damned if I would cede that power and influence to anyone else."

*end quotation*

Along the same lines, he or she who writes the (first draft of the) contract initially steers the destiny of the contract. The distinction between (a) writing the contract and (b) imposing terms is valid, but PepeTheFrog maintains that giving up the power of (a) inherently gives up some of (b). They're related in practice.

Do you agree or disagree that this proposal-- giving up (a)-- will likely cede some of the power of (b) from the Government to the contractor, in practice?

Retread and UVA - Yes, I would have a problem with anyone besides the government (including a large business) writing the contract. I feel this way because the government should be the one protecting the government/taxpayers' interest and we do that through our clauses.  We should be the ones to pick those.

Vern - As you know, the RFP includes not only the evaluation criteria but also the clauses applicable. As I mentioned in the previous paragraph, it is my humble opinion that we should be the ones to select those clauses because we are the ones tasked with protecting the interest of the government/taxpayer. 

I also think this would be a nightmare to evaluate.  Regardless what criteria we would attempt to put into the RFP, with each proposal having different terms and conditions, contracting officers would have to incorporate the lawyers onto the evaluation team just to decipher what language the offerors' lawyers would come up with.  We have enough trouble doing proper evaluations just looking at the proposals and costs.  Throw a full-blown evaluation of terms and conditions into the mix and nothing would ever get awarded, or take even longer to do so.

Although our contract writing systems are (depending on the agency you work at) pains to work with, I do believe they serve a purpose. Yes, we have to do a bunch of data input but in this stage of the information age, everyone (primarily Congress and companies that want to gain an advantage) wants access to this data and so that isn't going away. Better to have all that data captured automatically than to have to decipher a proposal to pull the info out to provide the data to FPDS (as mentioned previously by Shall7.

Pepe,

I'm looking at it from the consumer standpoint. DOD would be the consumer (customer) and the supplier (industry) writes the terms of the contract that it is willing to supply. Same thing with mortgages. If every consumer decided that they did not want to enter into terms that were unfavorable, loan originators would not be able to write loans in those terms as consumers would reject them as they are unfavorable. There are many loan originators, and each of them write terms that it is willing to agree to. Some are more lax than others and the consumer decides what contract it wishes to enter into? Why can't the federal government operate the same way? We (the Federal Government) could use its bargaining power just like you say that we have, and rather than dictate the terms and level the playing field, we give Industry an opportunity to provide its terms to us.

UVA - I guess this may be one of those areas where we will need to agree to disagree.  I think that leveling the playing field is an important part of government acquisition, and so I would prefer to dictate the terms (that I as a gov't CO feel protect the government's interest) and have a level playing field.  Otherwise, I can see the protest frequency going up at a faster rate than it already is because every contractor is going to think that their T&Cs are the best.

PepeTheFrog said:

Along the same lines, he or she who writes the (first draft of the) contract initially steers the destiny of the contract. The distinction between (a) writing the contract and (b) imposing terms is valid, but PepeTheFrog maintains that giving up the power of (a) inherently gives up some of (b). They're related in practice.

I disagree, Pepe. The two activities are only superficially similar.

Desparado said:

I think that leveling the playing field is an important part of government acquisition, and so I would prefer to dictate the terms (that I as a gov't CO feel protect the government's interest) and have a level playing field.

Desparado:

Please explain what you mean by "leveling the playing field."

Ok I am back.

I was only pointing out that when going out to small business I don't think we can expect them to write our complicated contracts for us without undue burden on them.  We can thank Congress for the complexity with having us enter socio economic preferences, labor law, buy american/trade agreement, subcontract reporting, trafficking in persons, corporate responsibility and a bunch of other terms and conditions that must be in the solictation and contract by law.  

I think it is better we write and they sign.  According to some congressional act, the contract writing system should be linked to the financial system and operate as one.  We went out ten years ago and got a whole new system just for this reason.     After 10 years of enhancements it can actually save a lot of time if you choose to use it correctly and smartly. Too bad at least half the staff choose to complain about it versus learn to make it work for them. It is being enhanced again due to the DATA Act of 2014 and we will have to enter even more data into the awards. 

If we had a blank page, maybe we could use the offeror's contract but we don't have a blank page.

Desparado,

I agree that it could cause an increase in bid protests because a KO would have consider the terms and conditions of an Offeror's proposal in addition to its technical, non-technical (management, past performance, etc) and cost factors, however I disagree that it would be a nightmare to evaluate. Over the last couple years, I've been fortunate to be involved in a couple competitive commercial software purchases where each vendor put forth its license agreement as part of its proposal and as part of the evaluation the Government had to consider the terms of the software agreement as well as the technical and non-technical factors. It required the KO and technical team to think a great deal and consider items that aren't routine, but overall the procurement was awarded within the agency's standard PALT.

Boof,

Regarding your comment about congressional laws. Why not just state, as part of the requirement for a valid proposal, that the Offeror must include terms that meet all applicable laws and regulations (no different than a Specialist having to figure out what clauses apply). Also, if the Government entered into an agreement that did not comply with a federal statute, it would have the ability to terminate the contract, just like any private citizen that enters into a contract does, it would need to rely on a court of law or someone appointed by Congress (maybe GAO?) to make the determination that the contract was null and void.  Socioeconomic preferences could still be given just like we do now by stating that only companies with whatever preference you're giving are eligible to respond. 

 Regarding gathering data, I fail to see how either having or not having a contract writing system alleviates this requirement and therefore I disagree that its a valid reason that this exercise would not work. I know of many agencies and offices that do not have contract writing systems, does that mean that they are exempt from data reporting requirements? If so, please let me know on what authority the are so I can pass it along to my former coworkers as you would be their hero.  Prior to working at the agency I work at now, I worked in one office that used MS word to draft its contracts and I can safely say that we still had about the same amount of data calls as I do in my current office, and my current office uses SPS/PD2 so I don't believe that having a writing system reduces the number of data calls. Either that or the folks at my new office don't effectively use SPS/PD2 to eliminate the need for these data calls that we constantly get.

Vern - By "leveling the playing field" I simply meant that all offers would be evaluated using the stated criteria and against RFPs that contain the same terms and conditions (clauses).

I also think that the key thing is that as contracting officers we are responsible for protecting the government's interest to the best of our ability. If we let the contractors write the contracts, it will be written to their benefit.  This is a case of the Golden Rules.  We have the gold, so we should make the rules. In other words, since we are spending the money, we should dictate the terms so that our interests are protected.  Standard language in clauses ensure that the contracts are written in a way that protects us. However, if you let the contractors write the contracts, then each one will be different, with slick lawyers trying to manipulate the language of the clauses to suit their interests.

Uva - Your example is an interesting one, but limited. Software agreements are one thing as the language is normally pretty simple (no more than a page or two), but applying that methodology to all contracts would be problematic.

Can you imagine the possibilities? Construction contracts would no longer have liquidated damages clauses. Service contracts may not contain clauses that allow us to extend the contract 6 months. T4D clauses would be absent. I could go on and on. The Government clauses are there to protect us, and I think we should be the author of them.

Desparado,

why do you think the drafter of a contract is protected?  Contra proferentem, a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. Based on this doctrine, the Government is actually harmed, with the exception of those clauses where courts have ruled the Christian doctrine applies, if a term or clause is ambiguous or missing from a contract. This is why courts generally rule against the Government when Contracting Officers try to invoke clauses that are missing from the contract, with the exception of those clauses that fall under the Christian doctrine.

On ‎5‎/‎26‎/‎2016 at 5:48 PM, Boof said:

Ok I am back.

I was only pointing out that when going out to small business I don't think we can expect them to write our complicated contracts for us without undue burden on them.  We can thank Congress for the complexity with having us enter socio economic preferences, labor law, buy american/trade agreement, subcontract reporting, trafficking in persons, corporate responsibility and a bunch of other terms and conditions that must be in the solictation and contract by law.  

I think it is better we write and they sign.  According to some congressional act, the contract writing system should be linked to the financial system and operate as one.  We went out ten years ago and got a whole new system just for this reason.     After 10 years of enhancements it can actually save a lot of time if you choose to use it correctly and smartly. Too bad at least half the staff choose to complain about it versus learn to make it work for them. It is being enhanced again due to the DATA Act of 2014 and we will have to enter even more data into the awards. 

If we had a blank page, maybe we could use the offeror's contract but we don't have a blank page.

Boof,

Regarding your comment about how this will place an undue burden on small businesses...I disagree.  I see this as an opportunity for a commercial software product to be developed and purchased by small businesses that will write the contracts for them.  I can't predict what the price of said software would be but I would expect the price would be driven to a "competitive level" given it will be in high demand (because it's required they write the contracts now) and many competitors will write competing software programs to answer the need.

On ‎5‎/‎24‎/‎2016 at 4:30 PM, Vern Edwards said:

After 40+ years of experience in contracting, which included time as a government contract negotiator, contracting officer, chief of two contracting offices, and headquarters staffer, I'd turn contract writing over to contractors in a heartbeat. That's the way it ought to be, the offerors offer and the Government accepts. That's the power. The Power of Acceptance or Rejection. Let the offerors write the statements of work, just like they do in the SOO process.

Think of it. Free from all that RFP-Contract writing hassle. By God, why didn't I think of it?

Great idea, shall7. So now what? Don't let it just die. I'd toss that baby frog out without a second thought.

Somebody--propose it as an innovation!!!!

My plan is to start with where I am  - the Navy Secretariat.  I will contact the Chief of Staff at the Deputy Assistant Secretary of the Navy for Acquisition and Procurement (DASN AP) and if no traction occurs I'll move through some NAVSUP channels outside my sphere of influence.  If NAVSUP balks at the idea I will move onto the CNO's "Rapid Innovation Cell" and see where it goes from there.  I could also try to talk to someone at the Assistant Secretary of the Navy for Research Development and Acquisition (ASN RD&A) or possibly even the Under Secretary of Defense for Acquisition Technology and Logistics (USD AT&L).

My main problem of course, is lack of rapport or any concrete solution.  It will be a challenge to gain traction, no doubt.

shall7,

I think you have an interesting idea, but the problem you presented had to do with the limitations of SPS. It seems like the solution to that problem is to not require the use of SPS. The idea that you have potentially solves a lot more than the SPS limitation. I think you need to better define the problem or problems that would be solved by your idea. For example, the Navy got in trouble last year for not having the correct clauses in its contracts for implementing the Buy American statute and the Berry Amendment. Maybe we can get a better result if the offerors had to select the proper clauses. 

Ask only to pilot the idea. Gather data. If things go well, you have a better argument to try it again.

My unsolicited advice.

On 5/31/2016 at 6:57 PM, uva383 said:

Desparado,

why do you think the drafter of a contract is protected?  Contra proferentem, a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. Based on this doctrine, the Government is actually harmed, with the exception of those clauses where courts have ruled the Christian doctrine applies, if a term or clause is ambiguous or missing from a contract. This is why courts generally rule against the Government when Contracting Officers try to invoke clauses that are missing from the contract, with the exception of those clauses that fall under the Christian doctrine.

UVA - By my statement I meant that by drafting the RFP/Contract, the government will be able to ensure that the clauses necessary to protect our interests are in place. If you allow the fox to run the hen house, they will only put in clauses that protect their interest.  For example, I'm sure they won't put in any type of T4D clause, or liquidated damages clause, or anything the government currently uses to protect its interests.

Desparado,

What if the procurement were competitive and the evaluation considered protection of the Government's interests in the proposed terms and conditions?

Desparado:

If the Government RFP instructed offerors to insert all of the clauses required by FAR, how would a proposal be acceptable if it didn't include required clauses? Example, termination clauses for default and convenience use shall statements.

Even if an offer didn't include a clause the government wanted, isn't that negotiable? The government doesn't have to accept an offer that it doesn't like.

shall7:

Recommend reading Vern's blog on Innovation: How Not to Go Down in Flames

Small business would be well-served by this kind of scheme. It would force them to become experts in the contracting process, something woefully lacking in today's environment where firms come out of the SBA preference programs without the ability to find their 'donkey' with both hands (as SBA will tell you). As it stands, most of them graduate to oblivion because they have been coddled and hand-held to the point they don't know the difference between a BPA and an IDIQ.   

There seems to be a belief amongst many commenters that somehow the government would 'not be protected' unless there is government authorship, however, no one said "non-compliant with the FAR".  By the same  token, commercial-to-commercial  transactions are assumed to be bound by  the UCC and/or Civil Law re: contract terms.

Isn't this kind of a logical extension of Part 12, i.e., he who provides the most favorable terms, wins? whoever holds the funds will always have the power, and that will always be the government. At least in the suggested scenario, vendors would be forced to read the  dang contract for a change..

Don and Jamaal - Why complicate matters by having to evaluate/negotiate all of that?  I don't see that the gain outweighs the cost/risk here. In fact, I would propose that acquisitions would take much longer to complete because of the additional requirements to review, evaluation and possibly negotiate clauses. Call me old fashioned but I truly believe that the best protector of the government's contracting interests is the government's contracting officer, and that we should dictate the terms and conditions of contracts, not the contractors.

Desparado,

I was reacting to your statement: "If you allow the fox to run the hen house, they will only put in clauses that protect their interest." I think that risk could potentially be mitigated by competition.

Your assessment of the idea may be right, but we wouldn't know unless somebody tried it. There could be some benefits that we can't see yet.

Desparado said:

Why complicate matters by having to evaluate/negotiate all of that?

Isn't the question actually "does evaluating a proposed model contract take longer than drafting one from scratch?"  

Doesn't 12.301 kind of open the door to the OP's approach, i.e.,  "...include only those clauses...Determined to be consistent with customary commercial practice."?

Quote

I truly believe ... we should dictate the terms and conditions of contracts, not the contractors.

How much are these "dictated" T&Cs costing the government?

But admittedly there is a scary implication of this approach: Lawyers.  It seems implied that they would  now be actively involved in Source Selection, e.g., "Evaluation Factor X: Legal Sufficiency of the Proposed Vehicle (Pass/Fail)".

I have followed this thread and find the idea very interesting.   Just getting an opportunity to test the idea will be a long haul but like some have said it should be tried.  But I am concerned….

Seems many comments concentrate on industry acceptance of the idea and ability to put it into practice in proposals they would submit.  I question the ability of the Government to both accept and put into practice the idea.  And I do not mean at executive level, I mean at the journey level. 

The WIFCON forum is forever scattered with comments about the ability of the current workforce.  Simply creating a new approach to the RFP process (which the idea is in the end) does not create success.

Is not the basic ideal of contracting in both the commercial and Federal sector that everything is negotiable?  From this view does not the process of a contractor suggested model contract already exist?  Nothing, in my view, prevents a contractor from, in the current process of RFP and Government prepared/proposed model contract, suggesting changes to the model.  The problem is that the Government is less than acceptable to such suggestions.

How many in this forum  have questioned and proposed changes to their personal cable or satellite tv service contracts, cell phone contracts, marked up their car repair work order, or any other commercial market place acquisition as Pepe has suggested?  What was your success if you did in reaching agreement on having the contract changed so that ended up using the exact firm you wanted?

If I am truly the firm you want to successfully complete the work you want done I would suggest that it is the competition process that is flawed and not the effort to reach an acceptable contract. 

Consider a twist on the idea - Let me use what is currently termed in the Federal arena “market research” as the competition process, be able to defend  (document) that market research unequivocally  to determine who I think is best for the work I need done and then move to the RFP process to let that firm suggest the model contract, negotiate it and get the work done.  I want the contractor and if the contractor is are reasonable with requests regarding the model/final contract (socioeconomic considerations included), I will get the work performed and the contractor will make a profit.

Sound like a familiar process, yes to an extent in the Federal sector it does but it is called A-E contracting, yet I do this every day at home for every type of need I have!!!!  Commercial item contracting at its finest.

In case anyone was wondering what happened to this, the Defense AT&L magazine has stated that it intends to publish my final article on this subject in its March 1st 2017 issue.  I hope you all like it!