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bob7947

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  1. I've posted this for someone but I cannot respond to any questions.  Maybe someone can answer it.

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    What is the correct numbering for block 1 (Data Item No) for CDLRs
    greater than 09?

    Normally for Data Item No higher than 09, the third and fourth positions,
    under block 1, would be assigned a numeric character.  For example, A010,
    A011, A012, etc...  In accordance with PGI 204.7105 (B) "The second, third
    and fourth positions contain the alpha or numeric character serial numbers
    assigned to the line item when using a single letter exhibit identifier.

    Due to the format example provided in PGI 204.7105 (B) (3) (i) (Two-position
    serial number for double letter exhibit identifier), clarification is needed to determine the correct nomenclature for CDRLs. Based on the PGI table
    listed, CDRL A010 should be A00A, A011 should be A00B, etc...

    Please share your thoughts on the proper block 1 Data Item No for CDRLs
    greater than 09.

  2. Vern:

    The purpose of the bill is To direct the Secretary of Health and Human Services, in collaboration with the Assistant Secretary for Preparedness and Response and the Director of the Centers for Disease Control and Prevention . . .

    It's clear that the author intended HHS to run this program.  Also see Section 2(e).  Then there is the and in coordination with . . .  .  In government, I think it is acceptable to let the other Secretaries know about the program and let them coordinate whatever that means.

    From Section 2(a) the Secretary of HHS shall establish a program of entering into partnerships with eligible domestic manufacturers.  The word partership bothers me because I would feel that is different from a contractual relationship.  However, since partnership isn't defined I'm going to use contractual relationship and partnership as the same.

    Next is 2(b) about the Contractual Purchasing Agreements.  We can substitue a contractual relationship that the government is currently using such as a BPA.  But then there is entering into contractual purchasing agreements with eligible domestic manufacturers to implement the partnerships.  It's clear that the author considers contracts to be a subset of partnerships.  That has to be cleared up with the author and the staff who wrote this thing.  I'd try to persuade them that they meant some type of multiple award IDIQ contracts.

    2(c) is up to the offerors that want to be partners (multiple award IDIQ contractors).  If none do, well . . . .

    Vern, you are correct, I don't see any changes to the FAR or HHSAR.  They would need a Program Director (or whoever HHS would call them now) to write up a little program statement.  Easy peasy.

    The bill will probably die a quiet death in the House before the end of January.

    By the way, I believe a new law authorized HHS to negotiate prices for Medicare drugs.  I wonder how that will go?  Yes, the Inflation Reduction Act made the Medicare Drug Price Negotiation Program.  Without reading the article yet, I wonder what effect this will have on VA's contracting program.

  3. I'm looking through all of the fine pieces of legislation that have been proposed by the U. S. House of Representatives in January.  I'll do the same for the U. S. Senate later.

    I came across the proposed The Domestic SUPPLY Act of 2023.  Imagine you are a member of the FAR Councils.  What do you do with it if it is enacted into law?  It does refer to subsection (a)(2) of section 8302 of title 41.  Do you need to stick it in the FAR or HHSAR or what?

    There are some terms such as Contractual Purchasing Agreements, Eligible Domestic Manufacturers, Qualified Personal Protective Equipment.  What do you do with them?  There are processes too.  What do you do with those?

  4. In his opinion, Judge Tapp wrote "In contract cases, parties do not get what they deserve, only what they successfully negotiate."  In the quote below, he lists the 5 counts in the contractor's complaint. 

    See Schneider Electric Buildings Americas, Inc. v. U. S., No. 21-788, January 18, 2023.

    Quote

    Schneider’s Complaint alleges that the United States wrongfully terminated for default (count I), breached the contract by not carrying its duty to maintain the boilers (count II), by denying Schneider access to USDA’s electric remote-access system that controlled and monitored the energy systems in the building (count III), by failing to compensate Schneider for the latent/differing site conditions (count IV), by failing to comply with its payment obligations under the contract (count V), and by breaching the covenant of good faith and fair dealing (count VI). (Compl. at 21–24, ECF No. 1). Schneider moves for summary judgment as to count I and partial summary judgment as to counts II, III, and V. (Pl.’s Mot. at 11, ECF No. 56).

     

  5. Yesterday, GAO published a sustained protest decision Spatial Front, Inc. B-420921.2, B-420921.3, Dec 21, 2022 I had 2 immediate thoughts when I read the decision.  They are

    1. Can we fairly eliminate not within the FSS contract issue in a protest?  
    2. Accepting GAO's examples of items not within the FSS contract as facts, are you convinced that they are material ?

    Even if you do not comment,  there is still something you can think about it your work.

    Quote

    For example, TSPi proposed a “Developer” labor category to support the development of software applications in the Prometheus agile release train. AR, Tab 20, TSPi Pricing Worksheet at 5, 7. It is clear that TSPi proposed the “Developer” labor category to fulfill the software development role on this call order. However, the FSS labor category--“Quality Assurance Engineer,” to which TSPi mapped this position--discusses only the “test[ing] of software to ensure proper operation and freedom from defects,” and gives no indication that the position includes the development of software. AR, Tab 35L, TSPi FSS Contract No. GS-35F-0128Y at 85. Also, to the extent USDA reviewed whether TSPi’s proposed “Developer” was within the scope of the mapped-to “Quality Assurance Engineer” FSS labor category--either when establishing the BPA or otherwise--USDA failed to adequately document its determination. FreeAlliance.com, LLC et al., supra at 14 (sustaining protest “because the record is not sufficient to allow us to review the agency's evaluation in this area for reasonableness”).

     

  6. This is an opinion by Judge Solomson of the Court of Federal Claims.  It may save a potential protester thousands of dollars just by reading it.  It takes about 15 minutes to get the idea.

    Quote

    This Court does not examine procurement decisions with an electron scanning microscope, searching for the slightest of imperfections. As Judge Tapp recently noted, “even ‘violations of law,’ let alone innocuous mistakes, should not result in setting aside awards unless those mistakes have some significance, for ‘[a]ny good lawyer can pick lint off any Government procurement.’”1 In this case, Plaintiff, Ekagra Parnters, LLC (“Ekagra”), has the burden to allege and then prove that Defendant, the United States — acting by and through the United States Census Bureau (“Census” or “USCB”) — not only committed some error in awarding the contract at issue to the Defendant-Intervenor, Paradyme Management, Inc. (“Paradyme”), but also that any such error prejudiced Ekagra. Ekagra, however, alleges procurement errors that are more akin to dust particles than troublesome lint.

    1 Ginn Grp., Inc. v. United States, 159 Fed. Cl. 593, 608 (2022) (alteration in original) (quoting Andersen Consulting v. United States, 959 F.2d 929, 932 (Fed. Cir. 1992)); see also Caddell Constr. Co. v. United States, 129 Fed. Cl. 383, 403–04 (2016). This Court similarly observed in a recent decision that a plaintiff’s “questions” regarding the conduct of a procurement “do not substitute for the evidence necessary to succeed on the merits.” Ahtna Logistics, LLC v. United States, -- Fed. Cl. --, 2022 WL 17480642, at *1 (Fed. Cl. Nov. 28, 2022) (describing “prejudice on the merits” as “an issue, in this Court’s experience, to which plaintiffs all-too-often do not pay sufficient attention, usually at their own peril”).

    --------------------------------------------------------------

    Ekagra Partners, LLC v. U. S. and Paradyme Management, Inc., No. 22-1038C, December 21, 2022

  7. H. R. 7776 - Water Resources Development Act of 2022  

    Now it is labeled H. R.  7776 the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023

    The first bill was for something other than an NDAA.  Apparently, H. R. 7776 was highjacked and is planned to be the NDAA for FY 2023.  The Chairmen and Ranking Members from the House and Senate Armed Services Committees grabbed H.R. 7900 and S. 4543--two versions of an NDAA--squished them together, hijacked H. R. 7776, amended that bill, and renamed it as the one above.

    When time is available, conferees are named and they negotiate a conference report and both Houses of Congress vote on it, approve the conference report and send it the White House for signature to make the finished bill a Public Law.

    H. R. 7776, the agreement between the Chairmen and Ranking Members will probably be substituted for negotiations between conferees of both houses and H. R. 7776 will be passed by both houses.  Then off to the White House.  There are plenty of perfections to contracting law in Title VIII but H. R. 7776 needs to be passed in about 2 weeks without running into any obstacles.  It probably won't get derailed, but I think it's too early to look at any of the bill's provisions.

  8. The Nash & Cibinic Report, Volume 36, Issue 12

    By Vernon J. Edwards

    Addendum by Ralph C. Nash

    Numerical (“point”) scoring/rating systems have long been used as a proposal evaluation technique. Once upon a time the use of such systems in the source selection process was common. But after a number of bid protest decisions in the 1970s and 1980s involving numerical scores, some agencies began to restrict or even prohibit their use and mandated the use of adjectival and colorrating schemes instead of numbers.

    Please Read:  Numerical Scoring In Source Selection: Lessons To Be Learned

  9. Vern:

    Picture a ranch and someone dressed in a clown's outfit monitoring the animal pens.  The clown is wearing a placard that says "OFPP Administrator" and walks over to a very large pen filled with nasty, old pigs.  The pigs have left a disgusting odor in the pen because they are bunched closely together and no one has cleaned the pen in decades.  The clown, newly hired, prepares to open the pen and let the pigs out.  From a distance, another person with a "Director, OMB" placard, shouts to the clown, "don't let the pigs out."  "There's more coming in."

    An 18-wheeler shows up next to a wooden runway leading to the large pen.  The driver, happy to get rid of the load, opens the door to the 18-wheeler and the new pigs, grunting and snorting, head for the overcrowded pen.  The clown shouts to the Director, OMB in the distance:  "Why did you let a new load of pigs into the disgusting, smelly, crowded pen."  The Director, OMB says:  "the new NDAA just passed and those are the new Title VIII pigs ready to join the earlier Title VIII pigs already in the pen."

    The clown looked in another direction and saw a cloud of dust rising from the feet of a group of people running in another direction.  The clown looked at the Director, OMB and shouted:  "Who are they?"  The Director shouted back:  "That's the FAR council members."  "Round them up and put them in the pen with the pigs."  "They'll know what to do."

    The Director walked over to his waiting car muttering to himself, "stupid clown, there's always a sucker to take that job."

  10. On 11/20/2022 at 11:45 AM, Vern Edwards said:

    The real question is:

    What do these box-store GWAC MATOCs do for us in light of the FAR-Part-15-type methods agencies use to conduct task order competitions under FAR 16.505(b)?

    Do they make the conduct of particular competitive task order acquisitions easier, more expeditious, and less costly?

    Do we have facts?

    Quote

    I did a little calculating.  $15,505,407,941 / 1,139 = $13,613,176 obligations per task order (rounded).  I know using obligations is not correct but that is close enough.  You asked 4 questions.  My answers are 1) probably not, 2) probably not, 3) probably not, and 4) not aware of any facts other than my little calculation.

    I believe Title 10 and 41 as they relate to federal contracting should be obliterated.  

    Here is one itty-bitty part of the contracting law that I especially hate.

    Quote

    SEC. 5112. CAPITAL PLANNING AND INVESTMENT CONTROL. (a) FEDERAL INFORMATION TECHNOLOGY.—The Director shall perform the responsibilities set forth in this section in fulfilling the responsibilities under section 3504(h) of title 44, United States Code.

    SEC. 5112. CAPITAL PLANNING AND INVESTMENT CONTROL

    (e) DESIGNATION OF EXECUTIVE AGENTS FOR ACQUISITIONS.— The Director shall designate (as the Director considers appropriate) one or more heads of executive agencies as executive agent for Government-wide acquisitions of information technology.  (excerpts from PUBLIC LAW 104–106—FEB. 10, 1996)

    That authorized the Director of OMB to make mini central suppliers so they could make their own big-box acquisitions and share them with others or compete against others.  

    Here is a question:  How many federal agencies does it take to buy a laptop computer?

  11. Connected Global Solutions, LLC and American Roll-On Roll-Off Carrier Group Inc. v. U. S. and HomeSafe Alliance, LLC, No. 22-292C, 22-317C, November 15, 2022.

    Quote

    “Perfection is the enemy of progress,” an adage aptly describing many aspects of the government procurement process. The search for a perfect procurement, proposal, or even performance would be in vain. Arbiters are tasked with deciding whether protested procurements pass muster; accepting less violates the law and disregards notions of transparency and fairness. Requiring more is likewise infeasible; it impairs government agencies, awardees, and ultimately taxpayers. It is within these parameters that the Court decides whether the United States has acted arbitrarily, capriciously, or in violation of the law in conducting the subject procurement.

     

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