bob7947

Thanks. From a 1987 Washington Post (I did not get the pay me screen on this article) article: Wow, 36 years ago. It seems like ten years ago.

Retreadfed: I think that's it. Let me check. The McDonnell Douglas case had several things in it too. Maybe I should start something about most interesting cases. It would be informative for younger members and the rest of us too.

This case did go back to the COFC and then back to the appeals court. However, it appeared it ended there. It didn't discuss the "best efforts" issue. I'm using a document that summarizes the case. Mention of the case is on p. 1051. Either my memory is wrong or this was not the correct case. Still looking for help.

Thanks Lionel: That may be the beginning of the case. It was a: termination for default on a fixed-price contract, large contractor and major program, kicked around the court system for years, This was the second remand back to the Court of Federal Claims: McDonnell Douglas Corp. v.U. S., United States Court of Appeals, Federal Circuit, Mar 17, 2003, 323 F.3d 1006 (Fed. Cir. 2003). This remand may go back to the COFC and then back to the Court of Appeals for the Federal Circuit for an opinion before it went to the U. S. Supreme Court. If there is a U. S. Supreme Court decision it would explain that this contract, although labeled fixed-price, was in reality a "best efforts" contract. I remembered we were all stunned by the final ruling--if this is the correct case and there is a U. S. Supreme Court decision. I'm going to search for it.

I've been trying to find a court case. Here are the specifics, if I am remembering them correctly: it involved a well-known contractor, the contract may have been a fixed-price contract but it included the words "best efforts" in the contract language, the decision may have been from the U. S. Supreme Court, it's a case that kicked around the court system for years, it may have been decided in last 10 years. I remember reading the decision and was surprised that the best efforts wording turned the decision. So, it may well have been a fixed-price contract. Can you tell me the name and a citation.

I offered a CoP last week. They just need to pick a specific subject and find people willing to be active participants of the CoP. I can make one of the participants the moderator of it. I can make it private--hidden or unseen. I can make it contractor only, government only, inclusive, etc. No offers.

Susan: In addition to an online forum, this site includes news, decisions, and rules every workday. I've done that for the past 21 years. I view this as a general COP for contracting. The forum's members are from government, industry, educational intstitutions, etc. They are located on different parts of the Earth. (I am not aware of anyone posting from Antartica.)

Formerfed: Thanks.

I've added what CHESS is. Check if it is correct. Also, could you esplain what NEC is?

Formerfed: I think we may have discussed this in person about 20 years ago.

This unscientific poll is now about 37 months old. So, some Members who voted may have moved into a higher age group skewing the results. However, look at the distribution. 45.46 percent of our Members who answered the poll are/were in the age groups of 39 or younger. 41.82 percent of our Members who answered the poll are/were in the age groups of 50 or older. 12.73 percent who answered the poll are/were right in the middle at 40 to 49. This poll has remained open for anyone who wishes to add to it. If you haven't answered the poll in the past 20 months or so, please go ahead. If you can't remember if you answered the poll, the software should not allow you to vote again.

In the discussion topic that I posted, Formerfed wrote: My question to anyone is: do you think that your methods for information gathering are too much of a competitive advantage that you cannot share them here. if you wish to share them, when do you start the information gathering process and what do you gather for a possible future procurement. Hint: I wouldn't wait until the FBO. Hint 2: I rewrote my question several times. is the information gathering process done in-house or through a service provider.

Originally posted by Joel Hoffman Here is an interesting example where, in a GAO protest, the protestor protested on the basis of evaluation criteria that had been deleted by an amendment before the evaluation and selection decision. Both the government and (winner) intervenor defended the evaluation without realizing that the specifically protested criteria had been deleted. Thus there would have been no basis for the protest. The Government’s response to the protest had omitted the page in the Amendment that deleted the restrictive evaluation language. So, GAO had sustained the protest based upon the pre-amendment requirements. GAO had recommended re-evaluation as well as reimbursement of protestors costs to file the protest. Government and intervenor requested re-consideration upon realizing that the Amendment had already deleted the restriction that protestor said had been violated. Government provided the second page of the amendment that should have been part of the initial protest response. All three parties had previous knowledge of the actual, amended evaluation criteria but failed to realize in their arguments that there had been no violation. Upon reconsideration, the GAO said that its initial decision was correct, based upon the facts in the protest. But GAO withdrew its recommendations for re-evaluation of proposals and reimbursement of the protestor’s costs. A whole protest, defense by both the government and intervenor and decision based upon the wrong solicitation requirements. Sheesh!! Total waste of everybody’s time and resources as a result of NOBODY involved in the protest knowing the solicitation requirements. Wonder how the KO, who issued the amendment and the source selection team who evaluated the proposals didn’t discover that the lawyers were defending the wrong terms of the solicitation and arguing the wrong (made up??) justification for the evaluation. https://www.gao.gov/assets/710/701097.pdf

I intended to post this as a separate topic because it is unique. However, I forgot. It was mentioned in another topic and I will try to copy that post below . You can think post about it, if you wish.

Frequently Asked Questions Pertaining to the Issuance of Wage Determinations Under the McNamara-O'Hara Service Contract Act (SCA) of 1965, as Amended.

I add this article because it might be pertinent. Pay attention to Costar III, LLC, ASBCA No. 56479, 11-2 BCA 34830 (2011) which is listed under the Tables in the article. The article is: The Christian Doctrine: The Double-Secret Contract Clause. Seyfarth Shaw LLP.

This Topic is closed in accordance with Rule 15: 15. If the original poster abandons the original post for a significant period of time, the topic may be removed or closed.

I added another blurb to my post showing costs associated with FEMA efforts. It's in bold italics.

I was wondering what effect this Hurricane Michael National Interest Exemption has on anything. I've added this FEMA item a little later than my post. I'm also wondering if FEMA's reconstruction efforts can be used to support a claim against the government for increased costs. kathilou: I don't want to intrude on your discussion. If you feel I am, tell me and I will go away.

Wikipedia. I'm adding the Wikipedia blurb about Hurricane Michael as background.

Thank you mtclymer for starting this. I edited your post to make it look the way I intended it to look. Now, I can go back to my directions and improve them.

Give Cewheaton a bit of time. OP posted early morning Monday. May be on travel, vacation etc. If there is nothin from Cewheaton by Tuesday of next week . . . .

GAO's automatic stay provision is in 31 U.S. Code § 3553. Review of protests; effect on contracts pending decision. The process is kicked off by 31 USC 3553 (b)(1) which states: The automatic stay provision is at 31 USC 3553 (c)(1)here: Below that is the agency waiver provisions, etc. My initial thought was to take the automatic out of the stay provision and require GAO to determine whether they will invoke a stay or not. That would be somewhat similar to what the Court of Federal Claims (COFC) does in authorizing a restraining order. However, that takes time. Huh, why does GAO get an automatic stay when the COFC has to decide based on a set of rules. Then look at what formerfed posted: If fee or cost and fee is witheld on a frivolous protest, does that kick off the disputes clause. Should the Boards of Contract Appeals determine what frivolous is too? I was stumbling around google and found this article from The Procurement Lawyer published by the American Bar Association. Have fun with that one.

I posted this topic in anger last week. Then I hid it. Now it is back. In reading: Judge Bruggink's opinion in Oracle America, Inc. v. U. S. and Amazon Web Services,  Inc., No. 18-1880C, July 26, 2019 I read the inevitable. The quote starts on p. 37 and then on p. 43 Judge Bruggink states: Apprently, a workaround was found. You will have to read a couple of pages of the protest to understand the quotes I added here. Maybe we can say no harm was done. But the Judge faced the issue of layers of legislation himself in this opinion. I've noted the problem and the solution in the Wifcon Blog over the years. I'm angry again and I'm going swimming.

In the JEDI Cloud procurement, DoD is seeking an enterprise cloud services solution that will accelerate DoD’s adoption of cloud computing technology. DoD concluded that a single award, IDIQ would best meet its needs. On December 6, 2018, Oracle America, Inc. filed a pre-award bid protest. Judge Bruggink of the the Court of Federal Claims issued his opinion on July 26, 2019. It was posted on Wifcon.com's Home Page on July 29, 2019. Oracle's protest had three primary challenges. First, it argued that the decision to use a single award as opposed to multiple awards was a violation of law. This argument has two components because the decision to use a single award had to be made both by an Under Secretary of Defense and independently by the contracting officer (CO). Second, it argued that the use of certain gate criteria, the application of which led to Oracle’s exclusion, were improper. Third, it contends that conflicts of interest on the part of DoD employees and Amazon Web Services, Inc. (AWS), one of the other offerors, prejudicially affected the procurement. AWS intervened in the protest. The procurement is valued at about $10 billion and has drawn lobbyists and politicians into action. I won't say more. I've added a poll to see if anyone is following this procurement and to what degree, if any. All responses are anonymous.