bob7947

SmBiz owner: There are 16 years of protest decisions, opinions, and appeals from GAO, COFC and CAFC at FAR 9.500: Organizational and Consultant Conflict of Interest. You will not find that information for free anywhere else. If you read the excerpts only, you will have spent a day gaining a wealth of knowledge. That is what Wifcon.com is about. THAT is why this site exists.

Argument is scheduled for this Monday, February 22, 2016.

Yesterday, I added FAR Case 2015-016 to the Home Page with a link to Section 857 of P. L. 113-291. As you can see the Section is part of a National Defense Authorization Act. However, in the FAR case it is explained that: That is one way a Defense law's coverage filters down to civilian agencies.

The page I linked here includes the Court Case. You will see GAO's Federal Acquisition Services Team decision above and both the Insight and Watterson opinions mentioned in the Court case under the Court section.

This 4 year-old topic was left unlocked. As a result, a new member posted to it. This was followed by others. Since it is current again, I have unlocked it.

Your welcome. That's my job.

Post #3, posted by Desparado on February 1, 2016 at 10:30 AM: The agency personnel may only have authority to purchase off of already established vehicles. Such was the case when I worked for the Army a few years back. Certain purchase card holders had authority to purchase up to $25k using their card, but only against already established contracting vehicles. Are your government customers contracting officers or just cardholders?

Post #2, posted by ji20874 on February 1, 2016 at 08:41 PM: The agency personnel might think they would have to justify a sole-source for every purchase order using a SF-1449, and think their life will be easier by setting up a BPA.

Post #1 Started by jvanhorne, February 1, 2016, 02:08 PM: So the client, a small business selling unique patented medical equipment, finds itself stuck with an expired BPA type contract and an agency that can't get around to renewing that contract. In my naivete, I suggest offering to sell using simplified procedures since the largest unit price for the items is under $20k by requesting an order on a SF 1449. Turns out government customers only want to buy on some sort of BPA/FSS type contract. I thought Part 13 procedures were supposed to simplify small purchases. Am I mistaken? What have I missed?

Post # 5 posted by Vern Edwards on February 1, 2016 at 02:46 PM: Whynot: The GAO has discussed the Christian Doctrine in about 42 decisions and has consistently refused to apply it to solicitations, However, its reasoning has not always been clear and consistent. Here is perhaps the best explanation you'll get, from Met Electrical Testing Co., B-198834, 80-2 CPD ¶ 398, Nov. 28, 1980: Capitalization in original. In short, the Court of Claims, in promulgating the Christian Doctrine, applied it to contracts, not solicitations, and that's that. Don, the GAO has often used the term "provision" to include clauses. It's decisions about the Christian Doctrine long predate the FAR and its creation of the term "solicitation provision."

Post #4 posted by Don Mansfield on February 1, 2016 at 2:38 PM: Nope. A clause is a clause whether it's in a solicitation or a contract. See definition of "contract clause" at FAR 2.101:

Post # 3: Posted by Whynot on February 1, 2016 at 1:30 PM: The footnote does not say it quite that way. it says: The "Christian Doctrine" provides only for incorporation by law of certain mandatory contract clauses into otherwise validly awarded government contracts; it does not stand for the proposition that provisions are similarly incorporated, by law, into solicitations. it talks about provisions and clauses not solicitations and contracts. I was thinking that you could have a mandatory clause in a solicitation. Perhaps a clause in a solicitation, prior to contract award, is only considered to be a provision or is not yet active.

Post #2: Posted by retreadfed on 29 January 2016 - 03:50 PM Whynot, as fn 10 indicates, the GAO has long held that the Christian Doctrine does not apply to solicitations. If a potential offeror believes a required clause has been omitted from the solicitation, that offeror should file a pre-proposal protest asserting a defect in the solicitation. Here, the protester did not do so and the GAO held that any attempt to raise this issue after proposals were submitted would be too late. See, fn 11.

#1 Started by Whynot, Jan 29 2016 02:00 PM In the recent GAO case posted on WIFCON, GAO found that the limitation of subcontracting clause at 52.219-14 should not be incorporated into the RFP/contract through the Christian doctrine and stated that this argument is without merit. I don’t understand GAO’s reasoning. From the case: With respect to subcontracting, NCS/EML argues that the awardee’s offer failed to comply with FAR clause 52.219 14, limitations on subcontracting. We dismiss this aspect of NCS/EML’s protest. While the solicitation was set aside for small businesses, the RFP did not incorporate FAR clause 52.219-14. Indeed, NCS/EML’s protest acknowledges that the clause was not included in the solicitation. Accordingly, this allegation is factually and legally insufficient, and we will not consider it. 4 C.F.R. §§ 21.1©(4), 21.5(f); Excalibur Laundries, Inc., B 405814, B 405814.2, Jan. 3, 2012, 2012 CPD ¶ 1 at 6 (allegation that the awardee’s proposal did not comply with FAR clause 52.219-14 is factually and legally insufficient where the solicitation--set aside for small businesses--did not incorporate the clause). Footnote 10. The protester nonetheless asserts that the clause “is incorporated [into the contract] by operation of law pursuant to the Christian doctrine.” Protester’s Dismissal Request Response (Oct. 22, 2015) at 3. This assertion is without merit. The "Christian Doctrine" provides only for incorporation by law of certain mandatory contract clauses into otherwise validly awarded government contracts; it does not stand for the proposition that provisions are similarly incorporated, by law, into solicitations. See QuesTech, Inc., B-255095, Feb 7, 1994, 94-1 CPD ¶ 82 at 5-6; see also Goel Servs., Inc., B-310822.2, May 23, 2008, 2008 CPD ¶ 99 at 2; American Imaging Servs., Inc.--Recon., B-250861.2, Jan. 5, 1993, 93-1 CPD ¶ 13 at 2; Parsons Precision Prods. Inc., B-249940, Dec. 22, 1992, 92-2 CPD ¶ 431 at 5-6; Dataproducts New England, Inc., et al., B-246149.3 et al., Feb. 26, 1992, 92-1 CPD ¶ 231 at 14; Diemaco, Inc., B-246065, Oct. 31, 1991, 91-2 CPD ¶ 414 at 2-3 n.2 http://www.wifcon.com/pd52_21914.htm

The next post would be #15 and that is all I have. You may commence posting to this topic discussion without worrying about losing it.

Post # 14 posted by Retreadfed, on 01 Feb 2016 - 9:41 PM, Your "...submit only prime contractor rates..." is a little misleading to me (I could be misreading it, sorry if I am). My read of the provision does not state one must change the rates, but simply disclose the applicability of those rates https://www.acquisit....html#wp1117371 Thus the bold shown below would appear to meet the provision's disclosure requirement would it not? Can we show something like this and then map the titles accordingly? And actually show this in direct labor category? Or should it still be recorded as a sub in the budget? Project Manager $100/hr Project Manager (Sub A) $100/hr Assistant $50/hr Assistant (Sub B ) $50/hr

Post # 13 Posted by Retreadfed on February 1, 2016, 04:15 PM H2H, look at 52.216-31. If a provision similar to that is in the solicitation, the contractor could be in big trouble if it failed to propose in accordance with this provision. Similarly, if a contracting officer told potential offerors to disregard what this provision requires and to submit only prime contractor rates, I think that CO would be in for some problems.

Post # 12 Posted by Whynot on February 1, 2016, 01:53 PM No, there is no requirement for contractor employees to be the sole fulfillment source for these commercial T&M labor categories. However, under a set aside, there may be a limitation of subcontracting requirement, whereby the prime would have to perform 51% of the effort. Conversely, a small business subcontracting plan may actually drive the use of certain disadvantaged subcontractors.

Post # 11 Posted by here_2_help on 30 January 2016 - 06:25 PM: Hypothetically, if a prime contractor bidding on a solicitation for a GSA award were to "map" its subcontractor labor rates to its own labor rates, so as to hide the fact that subcontractors were performing some of the the work outside of a CTA, would anybody consider that to be misleading in any way? As in, taint the award misleading? Would it provide protest grounds for an unsuccessful bidder? If that were the case, what would the denizens of WIFCON think about a Contracting Officer who stated that's exactly what the government expected its prime contractors to do? Just wondering .... H2H

Post # 10 Posted by shikakenin on 29 January 2016 - 06:56 PM: Whynot, hit it. I speculate that all the CO is concerned with (especially since this is an FFP order) is to avoid invoking FAR 8.402(f) which has triggered many a GAO protest that essentially results in any item (including a service) over the micro purchase threshold not priced on the GSA FSS Contract being challenging to procure in an FSS order unless all acquisition regulations are followed. Thus making it a conundrum as to follow all acquisition regulations means synopsizing on FBO, competing outside FSS, etc. negating the benefit of using FSS. In regards to T&M orders, GSA is working on a solution to the dreaded FAR 8.402(f). You can read about it at the bottom of the blog post here: https://interact.gsa.gov/node/454788 Thus, what I speculate all the CO means regarding "mapping" is do not show any labor categories/rates in your FFP build up that are outside your FSS labor category titles/rates (less a discount, naturally). You cannot supplement missing labor categories/rates you do not have on your GSA FSS Contract with subcontracted labor that does not exist on your FSS Contract without invoking FAR 8.402(f). You can only do that via an official FSS CTA without invoking FAR 8.402(f). When I say "official FSS CTA" I am NOT talking about a FAR 9.6 CTA. A lot of contractors get confused and believe they can subcontract to other GSA FSS contractors for the missing labor rates by using the FSS labor categories/rates of from their GSA FSS holding sub. They can only do that via an FSS CTA, not a prime sub relationship. Hope this helps. This can be a confusing issue for sure.

The procedures are at 21.3. I believe that may be based on law by now but I no longer remember. Anyway, it describes how GAO collects data and what it collects. From 1974 through 2003 when I retired, there were no field auditors involved in a GAO protest. I remember the feeling in 1974 after the LPC protest decision--We learned our lesson. We don't want to do that again. We realized we delayed the Space Program for no good reason. In the end, we asked the NASA Administrator to consider whether he wanted to reconsider . . . . It took him an hour or so to tell us that he wasn't going to consider to reconsider and that ended the protest. I remember several of us smiled when we heard the NASA Administrator's response. Quite often you will see the media label GAO as an auditing organization and the media may refer to bid protests and auditors in the same breath. That is based on their ignorance. GAO's Procurement Law Group is a separate organization within GAO's Office of the General Counsel and it does not include any auditors or whatever GAO is calling them these days.

This 10-person field audit took about 6 months to complete and it ended how GAO gathered information on its protests. This single audit limited the amount of data that GAO collects today. All of GAO's decisions since 1974 dealing with adequate documentation may have been affected because auditors would find any missing information and supply it to the attorney assigned to a protest. Since it takes auditors at least 1 month to find the coffee and cafeteria, it is probable that the timing of protest completion would look differently today. All of this is speculation but this single protest and audit ended protest auditors from being involved in any part of the protest process. That it why it is the most important GAO decision.

The most significant Comptroller General protest decision was Lockheed Propulsion Company, Thiokol Corporation, B-173677, June 24, 1974. In Late 1973, many U. S. Congressman and Senators, requested that GAO review NASA's selection of Thiokol Corporation for the Solid Motor Project of the Space Shuttle Program. GAO sent an audit team to Huntsville, Alabama to scour all source selection documents leading to the selection of Thiokol. I was a member of the audit team and I was in Huntsville for 3 months. When I retired in 2003, I was the last member of the audit team in GAO and a minor celebrity in the Procurement Law unit. To my knowledge, this was the only time that GAO was stupid enough to involve itself in a thorough audit of all supporting documents in a bid protest. The decision itself is the longest one that I know of--it is 98 pages in CPD format. The electronic format is all Caps. The decision had an effect on Lockheed Propulsion Company since it was closed shortly after the decision.

Jamaal: I've already done the heavy work for everyone on the Wifcon Blog. See GAO's Most Prevalent Reasons for Sustaining Protests.

Cromulent. Proper usage. Embiggens is added as a bonus.