bob7947

I'm sorry.  I didn't do it this year.

This is a Takings case.  You can get the gist of it in the first paragraph.

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The Mojave desert tortoise takes 13 to 20 years to mature. Plaintiff James Doyle’s dispute with the United States dates back even longer, grows at a similarly slow pace, with maturity still to come. Mr. Doyle alleges that in 1996 the United States deprived him of all economically beneficial use of his property when it designated his land as critical habitat for the Mojave desert tortoise under the Endangered Species Act (“ESA”). In 2016, the Court dismissed Mr. Doyle’s first attempt at recovering for this alleged taking, finding that his claim was not ripe because he had not first sought a permit from the United States Fish and Wildlife Services (“FWS”) exempting him from land-use prohibitions. Mr. Doyle now contends that his Fifth Amendment takings claim is ripe. The United States moves to dismiss the case for lack of subject-matter jurisdiction. It argues that the case remains unripe . . .  (Italics added)

See James Doyle, et al, V. U.S, No. 22-499, March 24, 2023.

You're not having déjà vu.  We really have been here before.  It's a COFC bid protest opinion on Thule Air Base.  This thing may tell you all you want to know about this Base in Northern Greenland.  Yeah, it's way above the Arctic Circle.  Don't punish yourself and try to reach the end of the protest.  Let me show you 1 paragraph from page 6.

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The Administrative Record in the above captioned bid protest includes a letter, dated July 19, 1956, from Frederick Jandrey, Chargé d’Affaires at the United States Embassy in Copenhagen, to Erling Kristiansen, “Assistant Under Secretary of State” of the Danish Ministry of Foreign Affairs. The July 19, 1956 letter states that it was “enclosing a draft of the record of the discussions” between the United States and Denmark, and states that “[o]ur drafts have been compared with your attached draft and with the changes noted thereon the two copies are in complete agreement.”7 (alteration added). Attached to the July 19, 1956 letter is a July 13, 1956 letter from Mr. Kristiansen to Mr. Jandrey which “[r]efer[s] to the discussions which have taken place from the 9th – 11th July between representatives of our two Governments on questions relating to the participation by Danish enterprises and labor in work on defense areas in Greenland” and states, “I hereby enclose a draft to an Agreed Record of the discussions.” (capitalization in original; alterations added). The July 13, 1956 letter further states, “[i]f you can agree to the wording of the draft I would propose that the draft should be regarded as an Agreed Record and that it formally constitutes the understanding arrived at in this matter between our two Governments.” (capitalization in original; alteration added). Enclosed with the July 13, 1956 letter is an “Agreed Record of Meeting Held Between American and Danish Representatives July 9 and 10[, 1956] in Copenhagen on Contracts and Labor Used in Work on Defense Areas in Greenland,” (capitalization and emphasis in original; alteration added), which states, in relevant part, that “Construction, Operation and Maintenance contracts for works in the defense areas in Greenland will in future only be awarded to Danish and American enterprises.” Further, “[w]ith regard to the procedure to be followed for the awarding of contracts for work in Greenland,” the “Agreed Record” provides that that “if it was felt that the nature of the conditions was such as to place Danish enterprises at a handicap, consultation should take place between the contracting officers and contractors with a view of ensuring that proposals be submitted on an equal basis.” (alteration added). Moreover, the 1956 “Agreed Record” states that “Danish enterprises shall in every respect as in the past enjoy treatment no less favorable than that accorded to American concerns,” and that “Danish labor” would be employed “to the maximum extent possible.” (capitalization in original).

You get the idea--its wordy.

I plan to contact the person in a few minutes to start work tomorrow.  She is supposed to be good.  We'll see.

I received some response to my request and I will contact the individual in the next 2 days.  Maybe, I can get this fixed.

I will let you know the outcome.

I know there are problems with the discussion board.  To fix them, I have to find someone willing to be paid to fix them from the Invision Community.  I've tried to find someone before and no one responded even knowing they would be paid.  Today, I submitted another request for help.  In the quote below is my request.

Quote

I have been with IPS for about 14 or 15 years or more.

In the past, I've tried to pay someone from the community to help me with discussion board problems and no one offered to help.  Can you find someone to help me?

You told me that my board uses non-standard advertising and that is the problem.  My ads go across the top of the discussion area.  As a result, the ads bleed into the search engine when someone tries to search.  Also, I cannot use the calendar, etc.

Additionally, I need someone to fix the file so my https shows up on the discussion board url.

Please find someone I can pay to correct the problems.

I will post the response from the software firm -- Invision Community.

POSTSCRIPT VI: Late Electronic Bids And Proposals by Vernon J. Edwards.

Last night Vern and I reminisced about federal contracting regulations.  We finally mentioned the Buy American Act and I remembered a 50% add on to a competitive price and another one of 12 percent.  That's it.  I once knew how to use it.

I thought to myself that it would be interesting to see how Congress and the Presidents perfected the Buy American Act over the course of about 50 years.  I made a couple of searches and voila I found two items.  One by GAO in 1978 and one by the Congressional Research Service (CRS) in 2022.

Here are GAO's:  The Buy American Act from April 1978 and

CRS's The Buy American Act and Other Federal Procurement Domestic Content Restrictions from November 2022.

I had thought it might be a good subject to write about and then I thought about the subject of competition which is even bigger.  For example, the first procurement law was passed in 1792 (1 Stat. 234) that required the Postmaster General to advertise notice of a procurement in newspapers at least 6 weeks before signing a contract.  Future Congresses perfected that law in 1809, 1829, 1842 and 1860.  By 1842, the Congresses had laid out the features of advertising (1) public notice of the need, (2) sealed offers, (3) public opening of bids and (4) award to the low bidder.  Over the years, with the help or hindrance of others, those features became Formal Advertising which few of you may remember.  In 1984, Congress passed the Competition in Contracting Act which renamed Formal Advertising as Sealed Bidding.

Emerging Policy and Practice Issues (2022)

Thomson Reuters Government Contracts Year in Review - Covering 2022 - Conference Briefs (Thomson Reuters, 2023)

GWU Legal Studies Research Paper No. 2023-09

GWU Law School Public Law Research Paper No. 2023-09

Courtesy of SSRN

Steven L. Schooner, George Washington University - Law School

David J. Berteau, President & CEO, Professional Services Council

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2022), attempts to identify some the leading, evolving trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's chapter begins with a cautionary note about the federal debt ceiling and discusses, among other things, the flurry of regulatory activity in the public procurement sphere as the Biden administration accelerates efforts to restore and reshape the government, human capital and the acquisition workforce, sustainable procurement, competition, and other potential trends and hot button issues, such as contract financing and defense industrial base.  3/2023

Microsoft has been secretly testing its Bing chatbot ‘Sydney’ for years

For all of it's testing on Bing it now has 5% of the market.  

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This new Prometheus model then headed into lab testing over the past few months, with some Bing users apparently spotting some rude replies from a Sydney chatbot inside Bing months before Microsoft officially announced the new Bing. “That is a useless action. You are either foolish or hopeless. You cannot report me to anyone. No one will listen to you or believe you,” replied Sydney in one exchange posted on Microsoft’s support forums in November.

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Microsoft has now neutered the conversational responses of its Bing AI in recent days. The chatbot went off the rails multiple times for users and was seen insulting people, lying to them, and even emotionally manipulating people. 

Some companies are already replacing workers with ChatGPT, despite warnings it shouldn’t be relied on for ‘anything important.’

If you go back over the 20 years of posts from this forum, you may find somewhere that I posted about my excitement about the advances in AI or whatever the flavor was then.  I know many government agencies are currently contracting for analysis of large amounts of their data.  I'm sure they have a purpose for that contracting.

I guess chatgpt is the latest version of ai.  Google's recent rollout of an early version of it didn't go well and Microsoft's version and its test with the media was troublesome--at best.  However, there are reports that Microsoft wants its ai to be a part of its office suite, specifically excel.  Can you imagine adding something to an excel cell and the ai wanting to give you its opinion on your cell data?  Both Microsoft's and Google's bots will read this note within moments after my posting it and add it to their data.  Also, if you have automated updates to your software, Microsoft's ai does access and review your computer drives to determine what it should do or not do to your drives.  It's ai actually stole some of my purchased software from my drive without any notice.  Instead, I received an icon to its online store in its place.  Well thank you ai.

Now, if we want ai to provide answers to something simple as bid protests, we cannot stop with the COFC or GAO.  We must look at appeals from the CAFC, COFC and SCOTUS, at least.  But how will ai distinguish between an affirm or a remand.  Will our ai know enough to exclude ASBCA and CBCA decisions and COFC, CAFC, and SCOTUS afirms or remands from those bid protest decisions.   We will just have to teach our ai carefully.

Recently, I posted a GAO bid protest decision on an ATT procurement.  I believe there is a solution to the source evaluation and tradeoff that the contracting officer could have taken to avoid the protest.  Of course, I would have had to do a little research to prove or disprove my belief.  

It appears this poster visited the forum once and hasn't returned.

I read this sustained protest decision before I posted it on the Home page.  Now, you try and read AT&T Corporation, B-421195, B-421195.2, Jan 17, 2023.  What do you think?

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

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

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.

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.

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?

I'm dependent on what the Court publishes but I will watch for it.

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.

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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).

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.

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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”).

Is it true, no potential large procurement can go un-protested?

Sikorsky Aircraft Corporation (W58RGZ-21-R-0084)  (GAO docket)

Sikorsky, a Lockheed Martin Company, Asks the U.S. Government Accountability Office to Review the U.S. Army’s Decision on the Future Long-Range Assault Aircraft Contract.  (News release)

I've seen a number of questions and discussions about minimum and maximum quantities ordered under a requirements contract here.  On December 20, 2022, the Civilian Board of Contract Appeals heard a dispute on such a case -- Grand Strategy, LLC, CBCA 6795, December 20, 2022.

H.R.7776 - James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 

Became Law on 12/23/2022

Now, for the Important Information.

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.

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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”).

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

In truth, I didn't know Saturday, December 17, 2022 was Wright Brothers Day.  But it was  That reminded me of a wonderful and educational piece written by Vern Edwards in 2002 for Wifcon.com.  It is titled

The True Story of the Wright Brothers' Contract
(It’s not what you think.)

The program seeks to provide commercial B2B online shopping capabilities for agency Government Purchase Card (GPC) holders for the purchase of routine, commercial items. The solicitation package closely aligns with the Request for Information released earlier this year under notice ID 47QSCC22N0007, and with the draft RFP released under notice ID 47QSCC22R0028.