Jump to content
The Wifcon Forums and Blogs

All Activity

This stream auto-updates     

  1. Past hour
  2. No-Cost Settlement and Unsatisfactory CPARS?

    Hey Vin, If you cut and pasted those comments from an email or other document from your attorney, then don't do that.
  3. Today
  4. Joseph: This is the discussion board. Your blog entry was posted to the blog area. Please don't post blog entries here.
  5. There is no conflict between those passages.
  6. Thanks for the input. Yes we retained counsel but the net result was that the penalty risks (and costs) under FAR 49.402-2, FAR 49.402-6, and 49.402-7 far outweighs the outcome of protesting a no-cost settlement. We'll protest the CPARS windfall when the time comes. And no the SBA was not helpful in this manner, although it provided lateral leniency from the KO's perspective. Cheers.
  7. ji, how do you reconcile 28.303 with 28.307-2?
  8. Buy American Act and Services

    FAR Subpart 25.1 and Buy American apply to contracts for supplies, or contracts for services involving the furnishing of supplies. FAR Subpart 25.2 and Buy American apply to construction contracts. But it might be that FAR Subpart 25.4 and Trade Agreements will apply to the acquisition, instead of Buy American. You can read all about it in FAR Part 25.
  9. U. S. Civil War Discussion Forum

    If anyone tried to register on my Civil War site and was not over the age of 55, you couldn't. I forgot that was there and eliminated it. There are no age restrictions now.
  10. FAR Part 45 is the wrong place to look. Instead, see FAR Subpart 28.3, Insurance. Cost-reimbursement contracts ordinarily require contractors to to provide automobile liability insurance (bodily injury and property damage) covering the operation of all automobiles used in connection with performing the contract. Your CPFF contract should contain the clause at FAR 52.228-7, Insurance. Even if it doesn't, any contractor subject to Cost Accounting Standard 416 is required to obtain insurance for the perils to which the contractor is exposed. And even if a contractor isn't subject to CAS 416, it may still be required by law (outside the FAR) to provide insurance for certain types of perils and situations. All of this is explained in FAR Subpart 28.3, Insurance. Allowability of insurance costs is covered by FAR 31.205-19.
  11. Buy American Act and Services

    I don't have the contract yet. Just working on the possible issues with the project once it gets issues. Right now it doesn't look like any type of "secret" or enhanced security requirements will apply.
  12. Doesn't the government take title the instant you charge the cost of the vehicles to the contract? If so, then the government is insuring the vehicles from that moment forward.
  13. Buy American Act and Services

    I'm not sure it DOES apply. On the other hand, what kind of security requirements are in your contract?
  14. I am currently working on a government contract that is cost-plus fixed fee. The work under the contract has necessitated us buy several vehicles in Sierra Leone. The government will own the vehicles at the conclusion of the contract. Do I need to take steps to insure the vehicles prior to the government taking possession or are the vehicles covered under the government's self-insurance program? I have read FAR 52.245 regarding government property but am still hazy regarding when government insurance kicks in and what steps I need to adequately protect the property.
  15. For losing contractors, the question of whether to protest is a tricky one. Contractors often move to protest when the requirements seem to favor one competitor over another, or when the rules of the procurement are unclear. But there’s an important difference between an agency displaying an abuse of discretion and simply utilizing the flexibility written into the Federal Acquisition Regulation (FAR). Two recent cases shed light on where that distinction may lie. Conducting a fair and honest procurement isn’t always straightforward, especially when the ground rules are blurry. In these examples disappointed contractors challenged contract award when the agency acted in a way they considered unfair. A closer look into the cases of Professional Service Industries (PSI) and Mid Atlantic Professional Group (SSI) reveals while persistence on the part of the protestor can pay off, sometimes it may be better for losing contractors to cut their losses. When the Requirements Seem to Favor One Competitor The first case involves a procurement of services by the Federal Highway Administration (FHWA) to run a material testing laboratory. The incumbent, PSI, lost the contract to competitor Genex. But PSI wasn’t taking the loss lying down, and protested to the Government Accountability Office (GAO) stating that Genex’s proposed program manager didn’t meet the minimum requirements of the request for proposals (RFP). After terminating Genex’s contract and pledging to re-evaluate proposals only to again award Genex the contract, FHWA responded by revising their original solicitation. They got rid of several key requirements, even removing the one requiring the program manager to have knowledge of program management (an interesting deletion to say the least!). They also added that if a program manager doesn’t meet one of the requirements, he/she is not disqualified if there’s a plan to remedy the shortcoming, furthering PSI’s resolve to protest PSI opposed this new solicitation, and protested again, this time to the Court of Federal Claims. This time, PSI came out of top, with the court concluding that the FHWA’s corrective actions constituted an abuse of discretion. In fact, the court stated it was troubled by the agency’s rewriting of the requirements for the program manager around the resume of one of the competing vendors (although the court took pains not to say the agency’s motives were improper). Regardless of their motives, the optics on this case were not favorable to the FHWA. It appeared that the agency looked at one of the vendors, liked what it saw, and rewrote the requirements of the procurement to meet that bidder’s characteristics. In doing so, they broke with standard practice in which an agency evaluates needs, sends out those needs, and then judges whether an offeror meets those requirements. In the absence of a level playing field, the protester came out on top. Professional Service Industries,Inc. v. United States, et al., 129 Fed. Cl. 190 (2016) When There’s an Absence of Rules The protester in the second case, SSI, was not as fortunate. SSI protested to the GAO after losing out on an order with the Department of Air Force (AF) for language services awarded under Federal Acquisition Regulation (FAR) Part 16. These procedures govern awards of orders under multiple-award task and delivery order contracts. During the competition, SSI’s competitor, Yorktown Systems Group, had a problem with its resumes in the proposal. The AF responded by conducting a round of discussions with all offerors and allowed Yorktown Systems to provide new resumes at the orals. The new resumes fixed the problem and Yorktown Systems Group won the contract. SSI protested that the agency had not called for revised proposals after the discussions, If this had been a negotiated contract competition under FAR Part 15, revised proposals would have been necessary after discussions. However, the more flexible procedures for order competitions in FAR Part 16 don’t contain this requirement. In the absence of a specific rule, GAO considered whether the failure to solicit and accept revised proposals was unfair under these circumstances. It concluded that it was not, and denied the protest. What you have here is a tension between the need to give flexibility and the need to establish the basic ground rules necessary to conduct a fair procurement. But FAR Part 16’s ambiguity isn’t an oversight: it’s purposely vague so that agencies can determine the necessary rules unique to each case. Less specificity always leads to more doubt about how to conduct an honest procurement. In this case the petitioner wasn’t able to prove that they’d been treated unfairly. SSI, B-413486, et al., Nov. 3, 2016. The Takeaway for Contractors Interested in Protesting In both cases, contractors protested when it appeared agency had acted unfairly. PSI’s protest was fruitful with the court agreeing that the agency had written the specifications in a way that unreasonably favored one offeror. SSI’s protest, however, was denied on the grounds that the rules for order competitions were specifically designed to be subject to interpretation, and it could not show that the agency had abused that flexibility by acting unfairly. Questions of fairness are inevitably fact-specific, but the bar is set even higher when the rules are vague and flexible. For more on this topic, listen to my interview with Tom Temin from Federal News Radio‘s “Federal Drive” here.
  16. Buy American Act and Services

    I currently have work under a government contract that we want to have a large International CRO provide services for. Some of the services the CRO will be providing are from workers located in India. How does the Buy American Act apply to services conducted in a foreign country? Thanks.
  17. U. S. Civil War Discussion Forum

    Remember Ambrose's river crossing at Fredericksburg and his slaughter of his troops trying to reach Mayre's Heights. And then, his Mud March. But he did tell Congress he wasn't the General for the job. When my dog Ambrose, named after that Union general, was alive I never mentioned Fredericksburg in his presence. If anyone tried to post something before this morning, I didn't realize I had set the topics incorrectly. I fixed that and it is possible to post.
  18. Recently, Joseph Petrillo of Petrillo & Powell published the following blog at Patterns of Procurement. For losing contractors, the question of whether to protest is a tricky one. Contractors often move to protest when the requirements seem to favor one competitor over another, or when the rules of the procurement are unclear. But there’s an important difference between an agency displaying an abuse of discretion and simply utilizing the flexibility written into the Federal Acquisition Regulation (FAR). Two recent cases shed light on where that distinction may lie. Conducting a fair and honest procurement isn’t always straightforward, especially when the ground rules are blurry. In these examples disappointed contractors challenged contract award when the agency acted in a way they considered unfair. A closer look into the cases of Professional Service Industries (PSI) and Mid Atlantic Professional Group (SSI) reveals while persistence on the part of the protestor can pay off, sometimes it may be better for losing contractors to cut their losses. When the Requirements Seem to Favor One Competitor The first case involves a procurement of services by the Federal Highway Administration (FHWA) to run a material testing laboratory. The incumbent, PSI, lost the contract to competitor Genex. But PSI wasn’t taking the loss lying down, and protested to the Government Accountability Office (GAO) stating that Genex’s proposed program manager didn’t meet the minimum requirements of the request for proposals (RFP). After terminating Genex’s contract and pledging to re-evaluate proposals only to again award Genex the contract, FHWA responded by revising their original solicitation. They got rid of several key requirements, even removing the one requiring the program manager to have knowledge of program management (an interesting deletion to say the least!). They also added that if a program manager doesn’t meet one of the requirements, he/she is not disqualified if there’s a plan to remedy the shortcoming, furthering PSI’s resolve to protest PSI opposed this new solicitation, and protested again, this time to the Court of Federal Claims. This time, PSI came out of top, with the court concluding that the FHWA’s corrective actions constituted an abuse of discretion. In fact, the court stated it was troubled by the agency’s rewriting of the requirements for the program manager around the resume of one of the competing vendors (although the court took pains not to say the agency’s motives were improper). Regardless of their motives, the optics on this case were not favorable to the FHWA. It appeared that the agency looked at one of the vendors, liked what it saw, and rewrote the requirements of the procurement to meet that bidder’s characteristics. In doing so, they broke with standard practice in which an agency evaluates needs, sends out those needs, and then judges whether an offeror meets those requirements. In the absence of a level playing field, the protester came out on top. Professional Service Industries,Inc. v. United States, et al., 129 Fed. Cl. 190 (2016) When There’s an Absence of Rules The protester in the second case, SSI, was not as fortunate. SSI protested to the GAO after losing out on an order with the Department of Air Force (AF) for language services awarded under Federal Acquisition Regulation (FAR) Part 16. These procedures govern awards of orders under multiple-award task and delivery order contracts. During the competition, SSI’s competitor, Yorktown Systems Group, had a problem with its resumes in the proposal. The AF responded by conducting a round of discussions with all offerors and allowed Yorktown Systems to provide new resumes at the orals. The new resumes fixed the problem and Yorktown Systems Group won the contract. SSI protested that the agency had not called for revised proposals after the discussions, If this had been a negotiated contract competition under FAR Part 15, revised proposals would have been necessary after discussions. However, the more flexible procedures for order competitions in FAR Part 16 don’t contain this requirement. In the absence of a specific rule, GAO considered whether the failure to solicit and accept revised proposals was unfair under these circumstances. It concluded that it was not, and denied the protest. What you have here is a tension between the need to give flexibility and the need to establish the basic ground rules necessary to conduct a fair procurement. But FAR Part 16’s ambiguity isn’t an oversight: it’s purposely vague so that agencies can determine the necessary rules unique to each case. Less specificity always leads to more doubt about how to conduct an honest procurement. In this case the petitioner wasn’t able to prove that they’d been treated unfairly. SSI, B-413486, et al., Nov. 3, 2016. The Takeaway for Contractors Interested in Protesting In both cases, contractors protested when it appeared agency had acted unfairly. PSI’s protest was fruitful with the court agreeing that the agency had written the specifications in a way that unreasonably favored one offeror. SSI’s protest, however, was denied on the grounds that the rules for order competitions were specifically designed to be subject to interpretation, and it could not show that the agency had abused that flexibility by acting unfairly. Questions of fairness are inevitably fact-specific, but the bar is set even higher when the rules are vague and flexible. For more on this topic, listen to my interview with Tom Temin from Federal News Radio‘s “Federal Drive” here.
  19. No-Cost Settlement and Unsatisfactory CPARS?

    @PepeTheFrog @joel hoffman
  20. U. S. Civil War Discussion Forum

    Bob, As a Yankee from Ohio living in the Fredericksburg Virginia area, I'm looking forward to digging through your site. I'm registered, but haven't been able to devote the time yet. Randy
  21. No-Cost Settlement and Unsatisfactory CPARS?

    Frog leg 🐸 tacos?
  22. No-Cost Settlement and Unsatisfactory CPARS?

    What kind of tacos are you eating, Gordon? Chicken, beef, fish, or cat?
  23. No-Cost Settlement and Unsatisfactory CPARS?

    If the contract is with the SBA, why can't the CO just have the SBA switch out performers and carry on with the work... Isn't that a thing? People always told me it was (LOL), but I never experienced it myself to be sure. Just thinking out loud here as I eat some tacos. But yeah, you need a good attorney. God speed.
  24. Types of orders

    I second what Vern said. In my "early" days of contracting (mid 90s), I managed decentralized BPAs where those appointed by the CO as ordering officials placed calls and ordered supplies or services permitted under the BPA. No paper order was issued. The ordering official would keep a call register/log documenting the calls made and would send to the CO monthly. Upon receipt of the log and an invoice from the contractor, the CO would approve the invoice for payment.
  25. Types of orders

    Call is an old term. You used to find many references to "calls or orders" in the pre-FAR procurement regulations. As best I can determine the word call was not officially defined. In my experience it was used in connection with Blanket Purchase Agreements. Agencies would place a call against a BPA. The term originally may have literally referred to a telephone call, which was how most BPA calls were made. It may be that calls were placed against agreements, like BOAs and BPAs, and orders were placed against contracts. You placed a call when the contractor was not contractually bound to perform and an order when it was. But that's speculation. The term call appears in only four places in FAR today, all in FAR Part 4, and all in similar expressions. See for instance FAR 4.606(a)(1)(iii): "All calls and orders awarded under the indefinite delivery vehicles identified in paragraph (a)(1)(ii) of this section." The term call appears in six places in the DFARS and in one or two places in a few other agency supplements. None shed any light on the proper use of the term, if there is one. I think that use of the term call is just a holdover from the old days. The term most commonly used today is "order."
  26. No-Cost Settlement and Unsatisfactory CPARS?

    Absolutely correct advice!
  27. Types of orders

    The writer is probably using the term mistakenly due to ignorance or sloppiness.
  1. Load more activity
×