bob7947

Lotus: There are nearly 20 years of decisions/opinions by GAO, COFC and CAFC posted here. Quite a few of them involve the subject your question covers. Not all decisons and opinions are posted here because of the repetitive nature of the protests. You can develop the 2 or 3 rules that will answer your question. See if you can find them and post them here in bulleted form. By the end of the day, you will be quite knowledgeable. The link is below. FAR 15.308: Source selection/tradeoff decision

Federal Acquisition Regulation FAR Case 2016-011: Limitations on Subcontracting. (December 4, 2018)

Frog: When I started this site in July 1998, Vern was there, when I took this site commercial in 2008, Vern was there. For those and many other reasons, it is inconceivable that Vern and I (Wifcon.com) could part on less than the most cordial of terms. I know why he left and I respect his wishes.

He rode off into the sunset.

Carl: When you do a legislative history, you begin at the end and work to the beginning with the actual supporting source documents. For example, CICA was passed in 1984. However, Lawton Chiles was pushing for it as early as 1977. I know, I started in 1984 and worked back to 1977. Then you build your history. By the time you are done, you know everything there is to know about that public law. You know more than any congress or any congressman, congresswoman or senator. So what do you have with that. Well, nothing really. You are still stuck with the writing in the law. I had to do legislative histories for each law that I encountered in an audit. It was a lot of fun. I had to do them for the Armed Services Procurement Act, Federal Property and Administrative Services Act (yeah, DoD put the screws to GSA before it was born), the Truth in Negotiations Act, CICA, the one for 95-507, etc. I was in the 7th floor law library so much that the lawyers thought I was a lawyer. I would ask the librarian for the background on a public law and the librarian wheeled the folders out in carts. It's very frustrating, you know more than anyone about a public law, but you cannot use it. The NDAA for 2017 was signed into law on 12/23/2016. The document you are copying from is a CRS document dated 7/13/2016. You didn't start with the NDAA for 2017 because it wasn't enacted yet. Start here. You can see the Public Law number, the conference report number, the senate report number, and the house report number. We're talking about Sec. 829. Preference for fixed-price contracts. Click the link. On the left is the section in the public law. On the right is the explanation from the Conference Report. It begins with: There was no provision in the House bill. However, the Senate Bill was amended in conference. The House conferees may or may not have worked with the Senate conferees on the revision and what you are seeing on the left is the final agreed-to section of law. I would stop here on any explanation because of the changes in conference. However, if you want to take a chance, I would go to section 827 of the Senate report and compare section 827 of the Senate bill to section 829 of the public law to see what the changes were. If the changes were not dramatic, I would go to the bottom of the report and find the explanation for Section 827. I already provided that. If you really want to wonder why section 827 was in the Senate bill, you can begin when it was first introduced. You can find that by the NDAA work that I do. Was there a section 827 when it was introduced? If not, go to the floor amendments listed for the Senate bill. Check each one to see if it was provided by an amendment. If it was by amendment, check the congressional record. The sponsor of that amendment might explain about his/her concern. It may have been based on a Senate hearing. Search for the Senate hearing. See if the amendement's sponsor says something during the hearing. The sponsor may have added a press release on his/her home page. OK, you found something. Now, you know. So what? You're still limited by the words of the Public Law. Since the conference report was approved by the House and the Senate, you can use that explanation in an argument. Beyond that, you are jumping off a cliff with an umbrella. Expect to hit the ground----hard.

Carl: You are using the wrong section of the Senate bill. You must start with the conference report, as I did, and work down. The only legislative history for Section 829 appears in what I posted. Your post should not be used for anything. It has no bearing on the discussion. Joel: The law is the law. You must read the words of the law and go no farther. Every year that I do the NDAA, I post caveats on using the legislative history. You will see legislative history used, at times, by judges and administrative law judges (or whatever they want to call themselves now). They can do that until someone higher up the chain hammers them. At GAO, from time to time, we might have cautiously added a reference to congressional intent. At the end of my career, the General Counsel at the time, took the position that he would not recognize any references to congressional intent below the Conference Report for any law. He was the head lawyer and he got his way. You are reading between the lines of the conference and senate reports. There is nothing in either of them to support your belief. Just be thankful that the $5 million in the Senate Report was changed in conference to $50 million.

Fascinating.

Joel: The legislative history is this diccussion's second post. I'll post it again. The conference report is below. The Senate Report mentioned in the conference section is below. All this information is available on this site. I guess your lucky the Senate did not get its way. Every pissant cost contract would be getting approval.

Pirate: Keep it handy?

Joel: How does the section of law under discussion affect program manager's and program management.

I was thinking about this type of thing this morning. The agency appoints a contracting officer with some designated level of responsibility based on some qualification. For the moment, let's assume the appointment process is working. The contracting officer is preparing a procurement. He/she knows there will be some level of review. It's to be expected. Then a congressman or senator reads a news article or a report and believes a problem exists. He/she introduces a bill to solve the perceived problem. To his/her amazement it gets enacted in the annual NDAA. It is then implemented through regulation for the workforce to use. The contracting officer begins to follow the regulation and finds that his/her authority is being restricted further. This happens every year. The contracting officer realizes that some politician, who cannot distinguish a solicitation from a contract, indirectly is telling him/her that he/she is less competent than his office believes. The best contracting officers can only take so much of this until they resign from government.

Pirate: You wrote: and Have any of them given you an electronic or paper document directing you to ignore the law and stick to the outdated DFARS? -------------------------------------------- PS: I think the provision in the law is stupid.

Retread: Those are the two I saw.

Frog: There goes your habitat! Here are my thoughts. As I have written, there are too many changes in Defense contracting law every year, Look at this page and read the Early Engagement Opportunity sections, The regulators are falling behind under the legislative onslaught, In these situations, to provide direction to the Defense contacting personnel, the USD's office must provide timely deviations to regulation. It appears, this one slipped through the cracks. You can search here to see if it was done and I missed it. In Class Deviation 2018-00017 the USD's office wrote: That, in the least, is what should have been done here. Instead, the pirate encountered the problem. As a result, the USD is violating the law, the pirate's advisors are violating the law, and the pirate is violating the law. At least the pirate made sure his/her flak jacket is riding low.

What else would sheep do?

Pepe and Carl: Does the follwoing section of the law have meaning?

Here is the section.

A database has been repaired and the software program is not showing any errors. Apparently guests were not abole to view the forum. They had to log-in first. That is probably the reason I had so many applications for new accounts in the last day.. Guests have always been allowed to see the forum.

I'm haing problems with the forum. It seems to be affecting viewing it when you are not logged in. Please let me know what you are experiencing because I must depend on others to fix it.

OIRA is located within the Office of Management and Budget (OMB) which is located within the Executive Office of the President.

Here is another 3-for. Solicitation # W52P1J-15-R-0122, issued on May 3, 2016. In February 2017, several offerors protested to GAO. Army notified GAO that it was taking corrective action on March 21, 2017 GAO Protest dismissed -- because of Army corrective action. COFC Protest: issued a permanent restraining order, Dell Federal Systems, L.P and Plaintiff Blue Tech Inc., Iron Bow Technologies LLC et al v. U. S. and Alphasix Corp et al, Nos. 17-465C, 17-473C, July 13, 2017. After the COFC opinion, another group protested to GAO. GAO found out that one of those protesters protested to the COFC and GAO bailed. CDW Government, LLC; CounterTrade Products, Inc.; Telos Corporation; FedBiz IT Solutions, LLC; Transource Services Corporation; CredoGov; J.C. Technology, Inc. d/b/a Ace Computers; New Tech Solutions, Inc.; HPI Federal, LLC; Koi Computers, Inc.; FCN, Inc.; Integration Technologies Group, Inc. B-414389.25, B-414389.26, B-414389.27, B-414389.28 ,B-414389.29, B-414389.30, B-414389.31, B-414389.32, B-414389.33, B-414389.34, B-414389.35, B-414389.36: Sep 18, 2017 CAFC Appeal: reversed COFC opinion, Dell Federal Systems, L.P., Blue Tech Inc., Red River Computer Company, Inc., Plaintiffs-Appellees; Iron Bow Technologies, LLC, Govsmart, Inc., Ideal Systems Solution, NCS Technologies, Inc., Plaintiffs,: U.S., HPI Federal, LLC, CDW Government LLC, et al., Nos. 2017-2516, 2017-2535, 2017-2554, October 5, 2018. There were many unhappy offerors. In the second round of protests, by different protesters, about different things (9/18/17 decision), there were 12 b-numbers handed out, each representing a protest or protestor. One of those protesters, protested to the COFC but I didn't look for an opinion on that item. I'm feeling there is room for an electronic protest game.

I added the topic you wrote in the search box at the top right. It gave this search. If you did something different, let me know.

Last night and this morning, I read an interesting opinion in the Court of Federal Claims (COFC). That opinon is Electra-Med, et al., v. U. S. and American Medical Depot, et al., No. 18-927C, October 3, 2018. It interested me because of what the Judge wrote which I added in the two quote boxes: The Judge found that: The Contracts’ Modifications Are an End-Run Around CICA, The J&A Does Not Justify the Lack of Competition at the Supply Level, and The Modifications Ignore the VA’s Rule of Two Requirement. The Judge concluded: The protestors did not get an injunction. You must read the entire opinion to get the gist of the story. The opinion discusses how VA procured these items before it appears to have thrown up its hands. Most, if not all, of these issues may be specific to VA. What do you think of the VA contracting program, including its solution, mentioned in this opinion and Judge's opinions.

H. R. 6891: The Anti-Deficiency Reform and Enforcement Act of 2018 This is an introduced bill and there was a House Committee on Oversight and Government Reform markup on September 27, 2018. Here are key parts of current law that you will see mentioned in the bill: 31 U.S. Code Subchapter III - LIMITATIONS, EXCEPTIONS, AND PENALTIES

I made a slight modification to the protest information to provide for simplicity in the poll. That was the 4:59 PM time. The protestor requested a debriefing at 4:59 and the agency received it later. I didn't like GAO's decision but Part 15 did lead us to Part 33. The decision is Exceptional Software Strategies, Inc, B-416232, July 12, 2018 (see p. 5). Below are a few excerpts.