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Thinking Critically About Word Choice: Is "Tradecraft" the Right Word?

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” --Lewis Carroll, Through the Looking Glass When Better Buying Power (BBP) 1.0 was first issued in September 2010, then Undersecretary of Defense for Acquisition, Technology, & Log

Don Mansfield

Don Mansfield

FAR 52.212-1 Tailored for SAP

I recently gave a course on simplified acquisition procedures where I was again confronted with the use of the provision at FAR 52.212-1 Instructions to Offerors--Commercial Items in requests for quotations (RFQs) issued pursuant to FAR part 13. (We discussed this issue in the Wifcon forum before here and here). The problem is that the provision was not designed for use in RFQs under FAR part 13. To begin with, the provision requests "offers"--not quotations--which are different (see the defi

Don Mansfield

Don Mansfield

Did the SBA Invalidate FAR 19.000(b)?

In Latvian Connection General Trading and Construction LLC, B-408633, September 18, 2013, the Comptroller General denied a protest of a solicitation issued by an Air Force unit in Oman for armored cable to be used at Thumrait Air Base, Oman. At issue was the Air Force’s decision to not automatically reserve the acquisition for small business concerns, which both the protester and the Small Business Administration (SBA) argued was required under the Small Business Act. The protester relied on 1

Don Mansfield

Don Mansfield

Army Contracting Command Guilty of Noncompliance with a Nonexistent Rule

In a recent DoD IG report, the Army Contracting Command was cited for its failure to perform "component assessments" on 23 contracts subject to the Buy American Act (see DoD IG Report No. 2015-026). The report states as follows: Not having ever heard of such a requirement, I checked the reference to this requirement, which was allegedly located in DFARS 252.225-7001( a )(3)(ii)(A). DFARS 252.225-7001 is a contract clause entitled "Buy American Act and Balance of Payments Program". The claus

Don Mansfield

Don Mansfield

Do You Have an OMB Control Number for that Past Performance Questionnaire?

In competitive acquisitions, it is common for solicitations to require offerors to conduct surveys of their past and present customers using standard questionnaires developed by the contracting office. Offerors are typically instructed to send the questionnaires to their customers with instructions to send the completed surveys to the contracting office. This information is then used to evaluate the offeror past performance. In effect, individual contracting offices have shifted the burden fo

Don Mansfield

Don Mansfield

Section 1331 Authorities: A Primer

Section 1331 of the Small Business Jobs Act of 2010 (Pub.L. 111-240) recognizes the significant opportunities that exist to increase small business participation on multiple award contracts and the ability of set-asides— the most powerful small business contracting tool—to unlock these opportunities. Under Section 1331, Federal agencies may: (1) set aside part or parts of multiple award contracts for small business; (2) reserve one or more awards for small businesses on multiple award contracts

Don Mansfield

Don Mansfield

Are Government Personnel Much Different Than Contractor Personnel?

This morning I read two different threads in the Wifcon forum. In the first thread, the discussion centered on late Government payments. (See “Significant Delays in voucher review/approval”). Some of the participants shared stories of how the Government does not consistently respect contractual payment due dates. Because some contractors are reluctant to enforce their rights under the payment clauses of their contracts, the Government continues to take advantage of them. One poster put it t

Don Mansfield

Don Mansfield

The Incredible Shrinking P

I read a lot of rules—proposed rules, interim rules, final rules, second proposed rules, second interim rules, etc. In fact, I decided a year or so ago that I would read all new rules in the Federal Register that affect the FAR or DFARS (I’m only a few rules behind as of this writing). In my reading, I noticed a strange phenomenon that went unexplained in the Federal Register notices—the letters “P” and “S” were getting smaller. That is, citations to FAR parts and subparts were being changed

Don Mansfield

Don Mansfield

The Impending Exodus of "Experienced" Contracting Personnel: Crisis or Opportunity?

It seems that every few months we see a new article, report, or hear testimony predicting a mass exodus of "experienced" 1102s from the Federal workforce. Citing workforce data, the conclusion that is commonly drawn is that a "crisis" will result. If we just look at numbers it would seem that this would be a reasonable conclusion. However, has anyone given any thought to the caliber of the 1102s that are leaving the Federal workforce and those that are entering? Do we really need one new 110

Don Mansfield

Don Mansfield

Savvy or Unethical? Should the Federal Government be a Phantom Bidder in Reverse Auctions?

I recently heard from a contractor regarding an experience he had with reverse auctions. A federal agency was conducting a reverse auction using FedBid and he decided to compete (FedBid, Inc., provides a service whereby federal agencies can conduct reverse auctions). Although he submitted several bids, he ultimately lost the reverse auction. When he checked to see who had won, he was surprised to see that the federal agency that was in need of the required items was the low bidder. In other

Don Mansfield

Don Mansfield

DAR Council Interprets ?Contract? to Include Task and Delivery Orders

In one of my earlier blog entries, I inferred that the FAR Councils interpreted the definition of ?contract? at FAR 2.101 to include task and delivery orders based on their answer to a question about the applicability of TINA to task and delivery orders (see ?Commonly Understood? I Think Not). Well, there is no reason to draw any inferences anymore. In a recently published final DFARS rule, the DAR Council unequivocally stated that the definition of ?contract? included task and delivery order

Don Mansfield

Don Mansfield

Small Business Programs Decision Table

NOTICE: The table originally posted contained an error in Step 4 of the HUBZone Program Decision Table. The entries for "Yes" and "No" were reversed, which implied that a HUBZone sole source was only permitted below the simplified acquisition threshold. In fact, the opposite is true. This has been corrected. I created a Small Business Decision Table to help navigate the new small business rules contained in the FAR. Note that there is a lack of clarity on some issues in the interim rule on

Don Mansfield

Don Mansfield

Sometimes Bigger is Better

An interesting aspect of the new socioeconomic parity rules issued in Federal Acquisition Circular 2005-50 (see 76 FR 14566) is that we now have some scenarios where a contractor is better off not being a small business concern. The Discussion and Analysis section of the Federal Register notice contains the following statement: This policy is implemented at the new FAR 19.203( c ). Further, the new FAR 19.203(d) states the following: Thus, for acquisitions over the simplified acqui

Don Mansfield

Don Mansfield

An Easily Misunderstood Decision

In B&B Medical Services, Inc.; Rotech Healthcare, Inc.; B-404241, B-404241.2, (January 19, 2011), the Comptroller General held that the statutory nonmanufacturer rule does not apply to procurements set aside for Historically Underutilized Business Zone (HUBZone) small business concerns. The decision contains the following analysis: The analysis is technically correct?the statutory nonmanufacturer rule does not apply to HUBZone set-asides. Reading this analysis, one may conclude that,

Don Mansfield

Don Mansfield

COs: Follow OMB?s Guidance at Your Peril

There has been a considerable amount of controversy over the last year or so in the area of small business programs. In International Program Group, Inc., (B?400278, B?400308, 19 September 2008) the Government Accountability Office (GAO) held that HUBZone set-asides took priority over service-disabled veteran-owned small business (SDVOSB) set-asides and SDVOSB sole source acquisitions. This was unsurprising given the clear language in the FAR. In Mission Critical Solutions (B?401057, 4 May 2009)

Don Mansfield

Don Mansfield

Calculating Cost Impacts on CPAF Contracts: A Reasonable Assumption?

When taking a class on the Cost Accounting Standards (CAS) last year, I came across a DCAA rule that made perfect sense to the auditors, but left some of the contracting officers scratching their heads. The rule deals with how to calculate the cost impact of a CAS noncompliance or accounting change on a cost-plus-award-fee (CPAF) contract. Chapter 8 of the DCAA Contract Audit Manual (CAM) contains guidance on how to evaluate cost impact proposals submitted to the Government as a result of a C

Don Mansfield

Don Mansfield

Magnetic Properties of Metals with Partially Filled 4f Electron Subshells

Did you ever wonder about the type of debate that goes on before an acquisition rule becomes final and is incorporated into the Federal Acquisition Regulation System? This information can be found in the Background section of the final rule when it appears in the Federal Register. I make a point of reading this section whenever a new rule comes out because it tells the story behind the rule?who the rule is going to affect, who is happy about the rule, who is upset about the rule, who thinks it s

Don Mansfield

Don Mansfield

Funding UCAs that Cross Fiscal Years

The end of the fiscal year is always a good time to start brush up on fiscal law?particularly the bona fide needs rule. Contracting offices may soon face questions of fiscal law that have already been answered in Volume I, Chapter 5, of Principles of Federal Appropriations Law (GAO Red Book). One interesting case of fiscal law, which you won't find in the Red Book, deals with funding undefinitized contract actions (UCAs) that cross fiscal years. Consider the following scenario: A DoD activit

Don Mansfield

Don Mansfield

Myth-Information: Price Analysis is Always Required

There seems to be a closely held belief by some in the Federal contracting community that the FAR requires the contracting officer to perform a price analysis before awarding any contract. CON 111 used to contain the following statements: A number of my colleagues, both practitioners and instructors, would agree with those statements. Further, I have had a number of students pre-programmed by their contracting offices to believe that price analysis is always required. What does the FAR s

Don Mansfield

Don Mansfield

Small Business Order of Priority Table (HOLD THE PRESS!)

WARNING: OMB issued a memorandum on July 10 directing executive agencies to temporarily disregard the two GAO decisions discussed below until a full review can be conducted. Until such a review is conducted, do not use the table. Depending on your point of view, two recent GAO decisions have either clarified or muddied our understanding of the rules pertaining to the order of priority for small business programs. In International Program Group, Inc., B-400278; B-400308, September 19, 2008, t

Don Mansfield

Don Mansfield

Delivery Orders Not Binding? Huh?

I read something that I found remarkable in the recently published GAO decision Master Lock Company, LLC, B-309982.2, June 24, 2008. Bob posted the decision on the Wifcon home page. The protester argued that the agency's evaluation of the awardee's past performance should have taken into account the fact that they had declined a delivery order under a different IDIQ contract. In response, the agency argued that a delivery order was not binding and the GAO agreed. Here's an excerpt: "Du

Don Mansfield

Don Mansfield

Inconsistent Decisions?

In TYBRIN Corporation, B-298364.6; B-298364.7, March 13,2007, the GAO held that an offeror's cost estimate that indicated that it would not perform 51% of the contract work on a small business set-aside rendered the offer unacceptable, even though the offeror did not explicitly take exception to the solicitation's limitation on subcontracting clause (FAR 52.219-14) and the SBA granted the offeror a certificate of competency. The GAO reasoned as follows: As a result, the Air Force reopened

Don Mansfield

Don Mansfield

GAO Issues Apology to DoD

In a remarkable statement issued today, the Government Accountability Office (GAO) apologized to the Department of Defense for what it called "decades of unwarranted and unsubstantiated criticism." The admission came in the wake of the release of a March 2009 GAO report titled Defense Acquisitions: Assessments of Selected Weapon Programs that claims that for 2008 programs, research and development costs are now 42 percent higher than originally estimated and the average delay in delivering init

Don Mansfield

Don Mansfield

Myth-Information: Proposal Rating

Myth-Information: When discussing the evaluation of competitive proposals with my students, I make a point of asking the following two questions (in order): 1. Are agencies required to evaluate proposals? 2. Are agencies required to rate proposals? Usually, students respond affirmatively to question #1 and are able to support their answers by citing FAR 15.305(a), which states "An agency shall evaluate competitive proposals and then assess their relative qualities solely on the facto

Don Mansfield

Don Mansfield

Myth-Information: Obligating the Minimum in IDIQ Contracts

If the preconceived notions that our students are bringing to the classroom is any indication, there's a good deal of myth-information being spread regarding indefinite-delivery indefinite-quantity (IDIQ) contracts. The one belief that I want to focus on today deals with obligating the contract minimum upon award of an IDIQ contract. This belief usually stems from a fundamental misunderstanding of the difference between creating and obligation and recording an obligation. The difference

Don Mansfield

Don Mansfield

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