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About this blog

This blog is managed by Bob Antonio, the Owner of Wifcon.com. It includes link to news items on contracting and the blogger's comments

Entries in this blog

The Government's Duty of Good Faith and Fair Dealing

The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the ef

Ralph Nash

Ralph Nash

Offer and Acceptance, Contracting Authority, Etc.

In Thomas F. Neenan, as Trustee of the Thomas F. Neenan, Sr., Revocable Trust, v. U. S., No. 11-733C, August 22, 2013, you are taken through some of the basics of federal contracting. How many basic points can you identify in this 10-page opinion? I've listed those that I identified below: 1. Offer and acceptance, unconditional offer, preliminary negotiations. 2. Change in ownership, death of party, trust agreement. 3. Pattern or practice. 4. Contract specialist's authority, integral

bob7947

bob7947

Part 2: Too Many Contracting Committees; Too Many Contracting Laws

In my last post on the Wifcon Blog, I proposed a House and Senate Committee on Contracting and Assistance. Why, you might ask? Remember the Clinger-Cohen Act? It was part of the National Defense Authorization Act for Fiscal Year 1996, P. L 104-106. What about the SBIR/STTR Reauthorization Act of 2011? It was part of the National Defense Authorization Act for Fiscal Year 2012, P. L. 112-81. What about the new Limitations on Subcontracting provision that was mentioned on the Wifcon Forum? Y

bob7947

bob7947

The House and Senate Committees on Contracting and Assistance

I had planned to write a detailed article about my plan for the above committees. However, I'm never going to get to it. So, I'm going to try a series of quick posts to get my thoughts published. Don't tell me that these committees will never be formed. I know they won't. Committees and subcommittees are entities run by politicians for politicians. However, I can dream. You can see from the titles of my proposed committees that they would deal with federal contracting and federal assistan

bob7947

bob7947

"I Hope . . . I've Earned What All Of You Have Done For Me"

Not long ago, a discussion board user posted a note about a theoretical government negotiator misrepresenting the truth during contract negotiations. The responses were on target. Vern Edwards was succinct and said: "Don't tell a lie!" Napolik said: "I would be . . . concerned with losing my credibility in the contractor's eyes." Now, its time for a story from over 40 years ago. It was my sophomore year in college and it was the night before the final exam in second year Spanish. I didn't learn

robert_antonio

robert_antonio

"A Propinquent Level Of Bureaucratic Service And Consideration"

Imagine quoting on a procurement in which you submitted the lowest-priced, technically acceptable quote. Instead of winning the award, you were told that your quote was unacceptable and ineligible for award because you did not possess the requisite facility clearance prior to award. Although you submitted your facility clearance information to the contracting officer on December 6, 2012, nearly two months later on February 1, 2013, little had been done on it. You protest to the U. S. Court of

bob7947

bob7947

American Apparel Left Me Wondering

GAO supplies us with its contracting rules in bid protest decisions. These rules are repeated and this is one of the reasons I provide key excerpts from bid protest decisions on Wifcon.com's Bid Protest pages. If you read these rules repeatedly, you will remember them. For example, here is a rule on what GAO reviews on a past performance issue. Think "consistent with the solicitation’s stated evaluation criteria" for this blog entry. Recently, GAO's decision in American Apparel, Inc., B-

bob7947

bob7947

Protester Wins Substance Of Protest; Still Loses

In Lockheed Propulsion Company; Thiokol Corporation, B-173677, June 24, 1974, GAO issued its bid protest decision on the Solid Rocket Motor (SRM) Project for the Space Shuttle Program. This decision was issued before the National Aeronautics and Space Administration (NASA) had its first SRM and before it had its first Space Shuttle. One part of the Lockheed protest dealt with the proposed costs for ammonium perchlorate (AP), a major part of the propellant in the SRM. Two offerors, Lockheed an

bob7947

bob7947

Look What GSA Forgot

The General Services Administration (GSA) has about 19,000 Multiple Award Schedule (MAS) contracts. About 80 percent are contracts with small businesses. Last year, GSA proposed terminating thousands of small business contracts for not meeting the $25,000 annual sales threshold. Apparently, GSA forgot to pay the contractors something--$2,500. The House Committee on Small Business did some checking--more likely someone told them--and found that GSA owed some money. Here is the story. You

bob7947

bob7947

Is FAR 8.406-6 As Easy As "May" and "Shall"?

I was reading a decision of the Armed Services Board of Contract Appeals (ASBCA) about a week ago and I found the following. Why read the ASBCA decision when I could go straight to the horse's mouth! So I searched the Court of Appeals for the Federal Circuit (CAFC) web site and I found the Sharp decision--and it was recent. Here is a brief description of the issue in the Sharp case. On September 18, 2001, the General Services Administration (GSA) awarded a multiple award schedule (MAS) cont

bob7947

bob7947

Unilateral Or Bilateral, That Is The Answer

We've all seen this before. The government and contractor sign a contract with a base period and several 1-year options. Sometimes, the 1-year option periods even mirror the government's fiscal year. A nice little puppy. Then, the harsh realities of government take over and our little puppy grows into an unwieldy mongrel. Such is life in federal contracting and here is a story about one such dog. On February 27, 2009, the Army National Guard and Glasgow Investigative Solutions, Inc. (GIS)

bob7947

bob7947

Offerors Need To Understand The Pricing Scheme And Any Caveats

On April 26, 2007, the Army awarded an indefinite delivery, indefinite quantity, fixed price, job-order contract to Lakeshore Engineering Services, Inc., for repair, maintenance, and construction services at Fort Rucker, Alabama. Lakeshore performed 79 construction delivery orders in the base year and 74 construction delivery orders in the first option year. On March 10, 2009, Lakeshore filed a claim with the contracting officer seeking $1,996,152.40 for losses it incurred while performing d

bob7947

bob7947

The Case Of The Reluctant Subcontractors

In the U. S. District Court for the District of Columbia, a recent opinion was issued in which 3 hospitals wanted to avoid being labled as government subcontractors to avoid the Department of Labor's rules covering subcontractors. The hospitals had contracts with UPMC Health Plan to provide medical services and supplies to individuals enrolled in its program. UPMC contracted with the U. S. Office of Personnel Management (OPM) to provide coverage for federal employees in the Federal Employees

bob7947

bob7947

Justice From The Tenth Circuit

" . . . was on the take. At the New Mexico Department of Corrections she was responsible for selecting the best contractors to perform maintenance work for the State. Instead and bypassing any public bidding process, she awarded about $4 million in contracts to . . . over the course of three years -- receiving about $237,000 in return from . . . , [the contractor's] owner." See the judgment at ca10.uscourts.gov (pdf).

bob7947

bob7947

If You Want A Contract, Don't Have A "Seriously Delinquent Tax Debt"

H. R. 882, the Contracting and Tax Accountability Act of 2013 passed the House of Representatives on April 15, 2013. The bill would lead to a nice amount of paperwork, new criteria for determining contractor responsibility, and opportunity for debarment. A copy of the bill, as reported from committee, is here.

bob7947

bob7947

The Congressional Budget Office Compares Apples And Oranges

The Army plans to develop and procure a new Ground Combat Vehicle (GCV) that will do two things: 1) operate as a combat vehicle and 2) transport soldiers onto the battlefield. The GCV would replace the current Bradley Infantry Fighting Vehicles. The Congressional Budget Office (CBO) believes that implementing the GCV program would cost $29 billion–in 2013 dollars–between 2014 to 2030. The CBO did a report that compares the Army’s plan for the GCV with four other alternatives. Although none of

bob7947

bob7947

Two Days To Remember

The government has plenty of rules involving time. In certain circumstances, an offeror has 10 days to submit a protest. On the other end of the process, contractors have so much time to submit a claim or to respond to a contracting officer's final decision. Here is one case involving time limits: On April 26, 2012, EPSI submitted a certified claim to the SBA contracting officer seeking $135,013.27 from the SBA for increases in the minimum wages during EPSI's period of performance fr

bob7947

bob7947

Camp Pendleton Contracting Official Arrested On Bribery Charges

"According to the complaint, filed in this matter with the United States District Court, Southern District of California, case number 13MJ1269, Cervantes is charged specifically with violating Title 18, United States Code (U.S.C.) Section 201 ( B )(2), bribery. Cervantes allegedly used his position to extort bribes from businesses seeking to do business at Camp Pendleton and allegedly referred to himself as the Godfather at Camp Pendleton; Cervantes is currently a U.S. Department of Defense empl

bob7947

bob7947

Contractors Up For Suspension

"A bipartisan group of senators led by U.S. Senator Jeanne Shaheen (D-NH) are expressing continued concern and frustration over the Army's use of contractors that have potential ties to terrorist groups. The senators specifically referred to a longstanding backlog of 43 referrals pending before the Army's Suspension and Debarment Official that involve individuals or companies with links to groups including the Haqqani Network and Al Qaeda as reason for concern that underscores the Army's need t

bob7947

bob7947

Is That The Milky Way Galaxy?

"What you’re looking at is a cell in the midst of dividing into two identical copies—a process called mitosis. Here, the chromosomes (in blue) are aligned at the cell’s equator. Microtubules (red) from opposite poles of the cell attach to the chromosomes using the kinetochores (green) and pull them to opposite ends of the cell, which then splits in half. But sometimes cells do not divide properly—a common problem in cancer. Understanding the mechanics of cell division could help us correct this

bob7947

bob7947

Frankenstein's Monster

You are a program officer with big "wants" but with little federal money. Your contracting officer is not familiar with hiding overruns in an FPI(F) contract--yet. Besides, you have never heard of it--yet. What to do? Well, this politician knows best. With a little luck and plenty of ignorance, you may see the "fixed price technical competition, under which all offerors compete solely on nonprice factors and the fixed award price is pre-announced in the solicitation." Let's think about thi

bob7947

bob7947

Another One Bites The Dust

". . . in the current fiscal climate, agencies and businesses alike have been forced to make tough spending cuts. After carefully reviewing the projected spending and attendance for this year’s conference, GSA is suspending Expo for 2013 in an effort to use our resources responsibly and to deliver better value and savings for our government partners, our vendors, and the American people." See it at gsa.gov.

bob7947

bob7947

GSA Schedule Contractors: CTA or Prime/Subcontractor Relationship?

"Under a Contractor Team Arrangement (CTA), two or more GSA Schedule contractors work together to meet ordering activity needs. By complementing each other's capabilities, the team offers a total solution to the ordering activity's requirement, providing a "win-win" situation for all parties." But what is a Prime/Subcontractor relationship and what is the difference from a CTA? Let GSA explain. See the information at gsa.gov.

bob7947

bob7947

The Hobbit: An Unexpected Contract Analysis

One of our colleagues sent this to me and I am posting it for you. Even Bilbo Baggins has a contract attorney to watch over him. "I, the undersigned, [referred to hereinafter as Burglar,] agree to travel to the Lonely Mountain, path to be determined by Thorin Oakenshield, who has a right to alter the course of the journey at his so choosing, without prior notification and/or liability for accident or injury incurred." "The aforementioned journey and subsequent extraction from the Lonely Mo

bob7947

bob7947

The Sovereign Has Not Consented To Be Sued

In Estes Express Lines, Inc. v. U. S., No. 11-597C, January 15, 2013, the Court of Federal Claims said: "For the government to be sued on a contract pursuant to the Tucker Act, there must be privity of contract between the plaintiff and the United States." "This is so because the doctrine of sovereign immunity precludes a suit against the United States without its consent and because, under the Tucker Act, the United States has 'consent[ed] to be sued only by those with whom it has privity

bob7947

bob7947

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