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  2. I agree that no one can prescribe a definitive solution based on the very short initial posting. But based on what I read, I would encourage consideration of a T4D. I don't like it when contracting officers award contracts and then let contractors off the hook for performance solely because they (the contracting officers) want to be nice. Here, the contractor seems to be failing to honor its promises. The contractor could honor its promises by dropping its other clients?
  3. Today
  4. Unless ... the Agency was induced to make the award based on a fraudulent representation "The awardee did state in their proposal that they did represent clients that were adverse to the Agency, but did not believe such representation would preclude them from representation of the Authority and if given the opportunity, they would obtain waivers from these clients."
  5. T for D? Well, maybe. Preferable, perhaps, to void ab initio. But... what I quoted above is a very muddled account. It's practically worthless. I wouldn't make a decision of any kind without a LOT more, and better, information from someone who knows the rules. I'm not sure what he means by "adverse." Does he mean averse?
  6. A termination for default (or cause) sounds like the right step. The contract is valid. The contractor is unwilling to honor its obligations.
  7. The U.S. Small Business Administration (SBA) is amending its small business size regulations to incorporate the NAICS revision for 2017. The proposed rule was issued by the SBA on April 18th and is currently open for comments until June 19th. The NAICS changes for 2017 include the creation of 21 new industries. These new NAICS codes were created from combining, reclassifying, or splitting 29 existing industries. The new NAICS codes have resulted in an increase to the size standards for six NAICS industries and a part of one industry, a decrease to size standards for two, and a change in the size standards from average annual receipts to number of employees for one. When determining these size standards changes for NAICS codes, the SBA uses the following process: If the new NAICS code is comprised of a single NAICS 2012 industry, the same size standard is used. If a new NAICS code is a combination of two or more NAICS 2012 industries or parts of those industries and: The industries all have the same size standard, the new NAICS will have the same size standard. The industries all have the same size measure, but not the same size standard, the new NAICS will use the same size standard for the NAICS 2012 that most closely matches the economic activity or the highest size standard. The industries have different size measures, SBA will use the NAICS 2012 industry that most closely matches the economic activity or the highest size standard amount NAICS 2012 industries. In this situation, the SBA coverts all size standards to single measure such as receipts or employees. A few of the industries effected by this change include crude petroleum extraction, natural gas extraction, mining, major household appliance manufacturing, department stores, electronic shopping, and others. You can find the full list located at the Federal Register. These changes are proposed to be adopted effective 10/1/17 or at the beginning of the fiscal year. Get your comments in while you can! About the Author Colin Johnson Contracts Manager Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services. The post SBA Adopting the 2017 NAICS Size Standards appeared first on Centre Law & Consulting. View the full article
  8. A particular regulatory requirement need not be based on an explicit statutory requirement in order to have the force and effect of law. See G.L. Christian and Assocs., 160 Ct. Cl. 56 (1963). The key distinction is between legislative rules and interpretive rules. See Preminger v. Secretary of Veterans Affairs, 632 F.3d 1345 (Fed. Cir. 2011): If an agency has rule making authority, and if it promulgated a particular rule in accordance with proper rule-making procedure, then the particular rule likely has the force and effect of law even though no statute explicitly requires it.
  9. Have fun and be safe over the holiday weekend. Vern
  10. Kevin Barnes of Latvian Connection has posted a 24-minute video on youtube.
  11. Ah well, unfortunately, I do not have time for a proper response as an extra-long weekend is calling my name, and there is work yet to be done. I'll just say I disagree and return the courtesy of leaving you the last word. As always, thanks for the discussion!
  12. Yesterday
  13. No, I am not kidding. You and I must have traveled different roads if this is all that surprising to you. I agree it is shocking and disgusting that government personnel would not be ticked off that fraud had happened on their watch and want to do whatever is necessary to get it eradicated. However, DW's experience is not uncommon for whistleblowers.
  14. Hopefully, this will help bkl14, myself, and others answer Vern' question: How do you best identify a regulation that has the force and effect of law? Within FAR how do you know if a section, subsection, paragraph, etc. has the force and effect of law? Is it as simple as identifying if a passage implements a statutory requirement or executive order? If yes, I believe this can be found in the rule making process by using citations in CFR and the Federal Register. (If FAR does not state that a passage is pursuant to statute or executive order) As I understand it, not all of FAR has the force and effect of law. For example, does FAR 4.102, Contractor’s signature, have the force and effect of law? (Accardi doctrine aside)
  15. Why do you want to void the contract? Did you ask the Contractor if they agree that the contract be cancelled by mutual agreement at no cost to either party? If not how do they intend to perform it? I am not on Government side of contracts so I am curious about your approach, and your reaction to my proposed solution.
  16. Violation of a statute or of a regulation having the force and effect of law is the prerequisite to invalidation of a contract. What such statute or regulation do you think was violated by award of the contract? Don't respond with a long description or explanation of anything. Cite the specific statute or regulation.
  17. Maybe the labor rates can be at fixed unit prices in the BPA and parts can be reimbursed at cost plus an fixed administrative fee percentage in the BPA. You can issue blanket POs that vendors can draw down against at these fixed prices.
  18. Are you kidding? Surprising? Yes! Shocking? Yes! Disgusting? YES!
  19. I have a situation with a recently awarded multiple award contract. This award was made on the basis of lowest price, technically acceptable and there were a few technically acceptable offerors that did not receive the award due to price. Three days after the awards were fully executed, one of the awardees stated that they could not do business with our agency because a few of their clients who were adverse to agency would not sign a waiver for them to work with the Agency. In the solicitation, there are disclosure requirements for the offerors regarding organizational conflict of interest and the offeror is required to certify whether it is aware or not aware of any potential organizational conflict of interest and the disclosure statement shall describe how any such conflict can be avoided, neutralized, or mitigated. The awardee did state in their proposal that they did represent clients that were adverse to the Agency, but did not believe such representation would preclude them from representation of the Authority and if given the opportunity, they would obtain waivers from these clients. I sent the contract to them to review, sign and send back to me to fully execute and gave them three days to do so, in that time, this awardee made no mention of the inability to obtain waivers from their adverse clients. So, when they signed the contract, they signed it knowing they had not obtained the waivers as they disclosed they would need to do in order to avoid, mitigate or neutralize organizational conflict of interest. So, my question is, can this contract be considered void ab initio? I have found a few GAO cases that discusses void ab initio. They are from the 70s and 80s and the scenarios aren’t necessary exactly the same, but each have stated the position that once a contract comes into existence, even if improperly awarded, it should not be canceled, that is, regarded as void ab initio, unless the illegality of the award is “plain” or “palpable.” As stated in another GAO case, Warren Brothers Roads Company v. US, the test of plainly or palpably illegal award is whether the award was made contrary to statute or regulation because of some action or statement by the contractor was on direct notice that the procedures being followed were inconsistent with statutory or regulatory requirements. If the test is not met, a contract may not be canceled, but can only be terminated for the convenience of the Government. Would the awardee knowingly signing a contract when their organizational conflict of interest not being mitigated, neutralized or avoided constitute as passing the test? Thanks in advance for your help!
  20. I have never issued an unpriced purchase order (they may be horrible and I'm curious if anyone has experience), but it sounds like they were conceived with this circumstance in mind . . .
  21. DW, when something goes wrong in an organization, management frequently considers it to be a negative reflection on its management ability. Therefore, while disappointing to receive the reaction you did, it should not be all that surprising.
  22. You're talking about a simplified acquisition. Rent one for 30-60 days, test it, and if you like it, then buy one. Could anything be easier? WTH do you want to bother with an option? You'd have to get help to write an option clause, then you'd be back here asking how to comply with FAR 17.207. Geez.
  23. People are likely to put in the effort if there is reasonable assurance that their ideas have more than a snowballs chance at being acted on. It would be helpful if the panel shows prior comments from the field that were acted upon. This will serve a couple of purposes: providing insight into the types of recommendations the panel acts on; and restoring faith that acquisition leaders are actually working hard to remove barriers that working-level acquisition teams suggest are impeding their ability to get work done. The types of things that delay acquisitions are often capacity concerns. The administrative burden, lack of skill and manning is a nasty combination. CPARS, CORT Tool, EZ Source, Government Furnished Property (attachment and management), etc. Process wise, can we change the DoD policy that if only one offer is received in response to a competitive solicitation and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer shall resolicit for an additional 30 days? (Parts 208, 213, 214, 215, and Subpart 216.5) By change I mean reduce the policy to the statutory or regulatory minimum. Raising the micro-purchase threshold to $25K would allow government-wide purchase cardholders to execute lower-level work purchasing agents snd others used to do; thus, allowing 1102-types more time to do the professional work.
  24. In my case it would have been simply to act on the information that was provided, do the right thing and inspire confidence that when malfeasance is discovered, leadership will do something about it rather than punish the one who found the evidence. I was not looking for a promotion, I simply respected the concept of integrity, honesty and ethical work, and when I found something that did not match those ideals to the point of criminal behavior, I reported it. The real failure was how my leadership handled it, I was ridiculed, told to shut up and go back to work and that my evidence was "weak" despite it being well documented with photos of non-existent lay down area, no work being conducted despite more than 50% of invoices approved by the PM, and evidence of earlier fraudulent work being signed off on.
  25. 17.200 says “This subpart prescribes policies and procedures for the use of option solicitation provisions and contract clauses.” A list is then provided describing when “this subpart does not apply”. Neither Part 7 as a whole nor lease to purchase type contracts are listed as exceptions. 52.207-5 “Option to Purchase Equipment” is an option clause as illustrated by the clause’s title and 52.207-5(a) which says, “The Contracting Officer may exercise this option…”. Regarding exercise of the option, 17.207(a) says “When exercising an option, the contracting officer shall…”. It does not say “When exercising an option prescribed by this Part, the contracting officer shall…”. Therefore, the requirements of 17.207 would be applicable as well.
  26. He provided some good examples in a previous blog entry that I suggest you may want to review:
  27. As someone who has provided inputs, particularly on the topic of simplifying and streamlining acquisitions, I was eager to read the panel's interim report; however, I was disappointed with the result. Let's take, for example, the focus on clauses for Simplified Acquisition - I think the panel walked right into a distraction from more impactful issues and then focused on the lowest hanging fruits ($1 Coins and Texting While Driving clauses...). Here are some brief thoughts in response and some that I've already provided through other means: Most Simplified Acquisitions are commercial (run an FPDS-NG report to see) which means the analysis on page 23 is overstating the issue. The biggest impediment to quicker Simplified Acquisitions is not selecting provisions/clauses for those acquisitions - any semi-proficient contracting professional should be able to review those particular prescriptions in less than a day as most of them are fairly straightforward. I'm curious whether the panel has data other than the number of clauses and anecdotes that indicates selecting provisions/clauses for Simplified Acquisitions is a serious issue that extends the timeline to award - none was provided in the interim report. The panel should look into the acquisition workforce's under-use of FAR 13.5 procedures for eligible acquisitions - I imagine most acquisitions would be greatly simplified if they did not use FAR Part 15 Source Selection Procedures. I hear complaints of complexity, but for many it is self imposed so they can get their "valuable Source Selection experience." One final thought about the call to action - if we're serious about seeing change in the acquisition world, let's be bold - one recommendation for Simplified Acquisitions would be to (a) increase the SAT and/or (b) tie the synopsis and publicizing of contract actions requirements in FAR Part 5 to the SAT. I know those recommendations have been provided to the panel - maybe there is just so much input that they haven't had the opportunity to consider them yet, but I believe that time spent on substantive issues like those would be much more beneficial than discussions of $1 Coins and Texting While Driving.
  28. Melissa, If the Panel wants to find out the types of things that are impeding people at the working level, setting up the web site is nice, but it's not enough. People at the working level are working. Most have already filed away or deleted the e-mail from the Panel soliciting feedback that had already been forwarded three or four times. If the Panel wants to know how the regulations are impeding people's ability to get their work done, they should read the kinds of questions being asked in the Wifcon forums or in Ask-A-Professor. Many of the questioners are being impeded by the regulations, but they don't know it. The Panel should read the Nash & Cibinic Report, which contains recommendations for improving the regulations in every issue. Also, you'll reach more people if you don't make them write out their problem and justify why it should be changed. Most people at the working level are young, they would respond to something interactive and fun like
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