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  1. Yesterday
  2. For example, the VA has it's own database for SD/VOSB certification as part of the Vets First Contracting Program. GSA says they are, but most are not for that agency.
  3. During the past week, GAO has built and published a new web site. Unfortunately, the authors appear to have broken the links to their decisions, reports, etc. It appears this is affecting decisions from mid-2019 that are posted on Wifcon.com. I don't know if they are planning to relink their decisions or not but it will take some time and complaining to sort this mess [aka as a government perfection] out.
  4. Last week
  5. A lot of reps and certs at the order level is due to misunderstandings and confusion about small business size status. Some agencies policies insist on verifying size status before placing an order. But that doesn’t require complete reps or certs. Nor does it even necessarily mean any one for size status.
  6. My thought just based on my quick research. You would write to the Administrator of the Administrator of the Federal Acquisition Regulatory Council. While this link seems to still be the current online info on the Council https://obamawhitehouse.archives.gov/omb/procurement_far_council considering this is an Obama era link I would probably address the letter via OMB, OFPP to the Administrator. Or even call the number found here and ask for a proper mailing address for the Council Administrator https://www.whitehouse.gov/omb/ I would recommend that your change be in the context of 41 USC Chapter 13 and in my quick read further suggest that you will have to weave through lots of references within Chapter to find the most specific reference in the Chapter to base your proposal on. Reference https://uscode.house.gov/view.xhtml?path=/prelim@title41/subtitle1/divisionB/chapter13&edition=prelim I also found this which may be something you have already consulted in your research but offered as it does provide a track on how changes to the FAR are made. https://fas.org/sgp/crs/misc/R42826.pdf Others might chime in with a better approach. Best of luck and if you do submit a proposed change through the best avenue that you determine keep us up to date with success by posting in the "What Happened?" area of the Forum
  7. First, I would like to thank Bob Antonio for maintaining this site. It is extremely helpful! By a internet search in a famous search engine, I discovered a post on WIFCON on August 12, 2016 previously asking the same questions as I am. In response, contributors offered two links neither of which currently work: https://www.whitehouse.gov/omb/procurement_default http://www.acq.osd.mil/dpap/dars/docs/FAR_Operating_Guide_July_2015.pdf From my research, I did discover two documents: the 2015 FAR Operating Guide and the 2011 FAR Drafting Guide. I also have been told that the FAR Council in the spring of each year, advertises/solicits FAR changes. Is this true as I could find no online verification. My proposed change involves both the FAR and the corresponding DFARS provision. Any advice on how to get my proposed change into the correct hands would be greatly appreciated.
  8. As a follow up, I found MD Helicopters Incorporated v. United States of America, et al., No. CV-1902236-PHX-JAT (D.Ariz. Jan. 24, 2020) to hold that the limited waiver of sovereign immunity contained in the APA did not apply and the court lacked jurisdiction under the ADRA’s sunset provision and left room to refile in the proper jurisdiction. In that case, the Plaintiff MD Helicopters, Inc. ("MDHI") alleged that Defendants the United States of America, the United States Department of the Army, and the Secretaries of Defense and the Army in their official capacities (collectively, "the Army"), violated the Administrative Procedure Act ("APA") by giving arbitrary and capricious reasons for not selecting MDHI to participate in the Future Attack Reconnaissance Aircraft Competitive Prototype ("FARA CP") program.
  9. Thank you all. This has been helpful. Appreciate it.
  10. @JackSparrow, You could protest an OTA award, but the GAO and COFC probably wouldn't have jurisdiction. However, someone filed a protest of an OTA award in a federal district court last year and the Government conceded that the court had jurisdiction. From "Determining Litigation Fora Under The FAR And Under Other Transaction Authority" by John Krieger and Richard Fowler: The full article is in the October 2019 issue of Briefing Papers. The substance of the article was also published in the December issue of Contract Management magazine as "Aesop’s Guide to Litigating Under the FAR and Other Transactions, Part 1: Protests".
  11. The protest that use of an Other Tranaction Authority was improper would have to be TIMELY. Whether that is prior to deadline for receipt of proposals or not could depend on the facts that made use of the OTA improper. If the facts as you see them that made use of an "Other Transaction" improper were apparent on the face of the solicitation, then the protest would be a protest of the terms of the solicitation, and would need to be filed prior to the deadline for receipt of proposals. That obviously isn't the ONLY context where this comes to light. For instance, Oracle America, Inc., B-416061, May 31, 2018, 2018 CPD ¶ 180, was a timely post-award protest. Given your original post, it seems likely your protest is untimely, but it is hard to say for certain.
  12. My company is new to bidding on contracts that come out using Other Transaction Authority (OTAs) and recently lost an award. My CEO is asking whether we can protest. My initial research indicates that OTA awards are not subject to protest. Some research indicates you could challenge an agency's initial decision to use an OTA but I assume that would have to be made at pre-proposal stage, not after award. Looking for any feedback confirming this or general experiences dealing with OTAs. Thanks.
  13. Happy Valentine’s Day SmallGovCon readers! Hope you have a great one! And mark your calendar for February 26th, when Matthew Schoonover will be providing recent developments in small business contracting during an upcoming PubK webinar. This week, we’re really loving some federal contracting updates, including a piece questioning the impact of enhanced debriefings, e-commerce supply chain risks, and a 57-month prison term for defrauding subcontractors on federal contracts to the tune of $3.7 Million. In an era of great-power competition, procurement reform not more regulation for the defense industrial base. [atlanticcouncil] DOD to require cybersecurity certification in some contract bids. [aerotechnews] DoD needs to invest heavier in emerging tech to attract new companies, experts say. [federalnewsnetwork] Cost Accounting Standards Board still working on conforming with GAAP. [accountingtoday] Contractors facing challenges transferring over to Beta.Sam.Gov. [federalnewsnetwork] 2021 Budget Seeks to ‘Resize’ the Bureaucracy. [govexec] ENHANCED DEBRIEFINGS: A Toothless Mandate? [gwu.edu] E-Commerce, the integrity of the market and mixed messages. [federalnewsnetwork] Government Contractor Sentenced to 57 Months in Prison for $3.7 Million Procurement Fraud Scheme. [justice.gov] GRO-Biz Conference Registration Now Open. [uwyo.edu] View the full article
  14. Agree with formerfed. Some lessons learned from doing a few of these: Keep it simple. Slant it towards customer satisfaction, not for completion of tasks that are required anyway. That means it will be subjective; so what? That ;s the point of building the partnering relationship. Some agencies have created huge bureaucratic exercises over the award of a simple fee which disincentives the use of it except in really large contracts, and forces everything towards paying rater than not paying. Actually they are very useful in smaller contracts. In the cases where I did these, the vendors who were into customer service made remarkable changes when they didn't get their first incentive payment, and the vendors who were just into extracting money never did make the changes and in some cases seemed happy being terminated for cause. Weight the fee payments to incentivize continued excellence, e.g. 1/3 at the middle and 2/3 at the end of the work. Many vendors try to straight-line the fee so that they have collected most of it as early as possible, at which point the customer loses the leverage they were trying to buy
  15. Here is the latest article entitled: Amazon wins injunction in US 'Jedi' contract fight. She [the COFC judge] also ordered Amazon to set aside $42m for costs if future proceedings found she was wrong to have issued the injunction.
  16. Yes. And Yes. But as some GSA blogs indicate it might be okay to do add some reps and certs if the agency using the GSA FSS felt it necessary and they are not in conflict with the parent GSA FSS. In the end I agree clarification would be nice but suspect in part that the GSA FSSs' have gone, to an extent, the same direction as an agency's own IDIQ where the contract vehicle is massaged beyond original intent.
  17. Thanks! It would be nice if the FAR Council would look into clarifying all of this.
  18. The -3 reps and certs provision applies to the resulting contract and all orders issued under it, but reps and certs are established at the parent schedule contract level and not at the order level. I always cringe whenever I see a contracting officer trying to re-establish a complete reps and certs package for an order.
  19. I do not disagree with the response provided but it does raise an interesting point of discussion. Specifically you asked about "1-5", ji20874 has only mentioned 4 & 5 so what about 1 & 3? By read of the FAR 52.212-1 is a provision that is applicable to the solicitation in this case a proposed GSA Schedule contract and as such this instruction provision could be viewed as not being carried forward to the RFQ process for resulting TO/DO’s issued against the awarded parent contract. This view might be supported in that the Ordering Clause 52.216-18 (deviation) usually included in all GSA FSS contracts makes reference only to “terms and conditions” from the GSA FSS “contract” being applicable and not the terms and conditions of the “solicitation” of the GSA FSS contract. The “Table of Contents” for a GSA FSS solicitation suggests that only 4 & 5 carry to TO/DO's as they are contained in “Part I” of GSA FSS solicitation package as "contract terms and conditions", while “Part III” containing the 52.212-1 as included in 52.252-1 is “Vendor Instructions”. 52.212-3 is in Part V Offeror Representations and Certifications. All said one could conclude that 1 & 3 do not carry to TO/DOs via 52.216-18. This conclusion is clouded however if one looks at GSA's e-Library and views the "contract clauses' for a particular contractor where you will find 1 and 3 appear. Overall I for one would pay pretty literal attention to FAR Part 8.4 (and agency supplements to 8.4) for what should be included in an RFQ as I am not so sure that 1 & 3 are considered a part of the parent GSA FSS "contract". Or from another view 1 & 3 are no longer needed for doing an RFQ, the requirements specific to each were addressed when the parent contract was solicited and awarded.
  20. By Tyler Freiberger, Esq., Nearly half a century after passage of the Age Discrimination in Employment Act (ADEA), the American workplace remains confused as to the line between an innocent joke and potential legal exposure. While jokes involving race at last have found their way to the “hard no” category, the debate over pop culture trends like “Ok Boomer” has made its way to the U.S. Supreme Court. Consequently, both employers and employees could benefit from a review of where the law stands on jokes in the workplace. Spoiler: a “don’t be a jerk policy” goes a long way. Actor Adam Driver recently appear on Saturday Night Live playing his Star Wars character, Kylo Ren, in yet another “Undercover Boss” spoof. The biggest laugh from the clip comes when Driver’s character is trying, unsuccessfully, to fit in with young interns. Specifically, when introducing himself to the other interns, Driver spurts out “OK BOOMER” (the joke being that the phrase is such a well-known part of internet pop culture that it has become an out of touch boss’s way to try and connect with the kids). While certainly unintentional, the clip is eerily similar to a recent hypothetical posed by Chief Justice Roberts in Babb v. Wilkie, a case considering the causation standard under the Age Discrimination in Employment Act (ADEA). At issue in Babb was whether federal employees are entitled to the same rights as employees of private companies or state governments, i.e., whether they can successfully bring an ADEA suit if they can show an adverse action would not have been taken against them “but for” the fact that they are more than 40 years old. During oral argument, Justice Roberts asked, “Let’s say in the course of the, you know, weeks-long [hiring] process, you know, [there is] one comment about age,” “the hiring person is younger, [and] says, you know, ‘OK, boomer’ … once to the applicant.” Following a pause for laughter, the employee’s counsel responded: “I think if the decision makers are sitting around the table and they say, we’ve got Candidate A who’s 35 and we’ve got Candidate B who’s 55 and is a boomer and is probably tired and, you know, doesn’t have a lot of computer skills, I think that absolutely would be actionable.” While the Court has not issued its opinion yet, counsel’s response may well be a good predictor of how the Court eventually rules, i.e., an actionable claim of age discrimination requires more than simply a joke about an employee’s generation. This makes sense, as workplace discrimination laws were never meant to be a “general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). Instead, they are in place to put a check on employment actions taken specifically because of a person’s protected characteristic/status. This is an important distinction to keep in mind when discussing generational issues. While comments like “ok boomer” or “millennial snowflake” are certainly pejorative , they should not be confused with racial slurs. In the end, it’s probably not a great idea to try and bring internet meme culture into the office but rude Twitter responses won’t support a lawsuit on their own. About the Author: Tyler Freiberger Associate Attorney Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties’ human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. The post “Ok Boomer”- Cringy But Not Discrimination (Yet) appeared first on Centre Law & Consulting. View the full article
  21. No. The clauses at FAR 52.212-4 and -5 are already part of the parent schedule contracts.
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