bob7947

The conference report for the new, annual, perfected, NDAA is available. It still has to be approved by both Houses before it is sent to the White House. If you aren't familiar with this blessed, annual, event, most congressional contracting perfections are in Title VIII.

I'm posting this for Dakota who is a new member that mistakenly posted it as a blog entry. "I have a pending modification to an existing task order for the continuation of range operations effective 1 October. However, the modification has not been issued yet due to the lack of fiscal year funds. The contractor has requested a "guarantee" that it will be paid for performance on 1 October, but has been advised that performance is subject to the availability of funds. The range operations will be shut down if the contractor is not available to perform on the effective date, and the effort has been funded annually with O&M funds since 2004. Given the language at FAR 32.703-2 can a modification be issued on 30 September to for a time-and-materials CLIN for services subject to the availability of funds?"

Fara: The day before you posted your question, I added a decision on Raymond Express International, LLC B-409872.3, B-409872.4, B-409872.5: Sep 11, 2015. I thought that might have instigated your question. In that decision, GAO referred to the Gear Wizard decision. Below are a couple of excerpts from Gear Wizzard, Inc., January 11, 2007. "The agency's rejection of GWI's proposal was unobjectionable. DLA explains, citing Defense Federal Acquisition Regulation Supplement sect. 204.7201, that a CAGE code is a –contractor identification code— assigned to a contractor's name and address, so as to avoid any confusion regarding the entity identified. Letter from DLA to GAO, Dec. 15, 2006, at 1. CAGE codes are assigned to discrete business entities for a variety of purposes (e.g., facility clearances and pre-award surveys) to dispositively establish the identity of a legal entity for contractual purposes. See Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD para. 68 at 5." "Here, the RFP included a CAGE code for Dana's part that identified the manufacturing entity as –Dana Corp. Spicer Universal Joint Div.,— at an address in Holland, Ohio.[1] The agency states, and GWI does not dispute, that GWI's proposed parts were to be manufactured by [DELTED], not by Dana's Spicer Universal Joint Division in Holland, Ohio, and Dana has advised the agency that it is not aware of any approved sites to manufacture this part outside the United States. Agency Motion to Dismiss, exh. 2, at 2. The agency advises that [DELETED] is not included under the specified CAGE code; as a foreign entity, it would be assigned a different code, specifically, a North Atlantic Treaty Organization commercial and government entity code. Thus, while GWI appears to be proposing the specified Dana part, the information subsequently developed by the agency indicates that the part would be manufactured by [DELETED] that was not contemplated by the agency's source approval. We think this was a legitimate and reasonable basis for the agency's action here, that is, rejecting GWI's proposal as unacceptable." Since I worked during college Summers in the 1970s at Spicers' facility in Pennsylvania where we pounded out drive shafts and universal joints, I wondered if there was any rule that went further than the home address of the legal entity. In the 1970s, the major OEM's dictated that their drive shafts and universal joints were to be produced at that facility only. The DFARS section 204.7201 mentioned in the decision was "(Removed December 11, 2014)" I didn't find anything now. I went to DLA to see if its rules asked for individual facilities in applying for cage codes but found online requests for CAGE codes and wasn't going to go further.

The entire thread from November 2007 is now online at: CAS Covered, or Not?

Below is the post requested which was titled CAS Covered, or Not? It was posted by Vern and the entire thread looks interesting. I'll see what I can do to add the entire thread to the archives. Below is Vern's post: ------------------------------------------------------------------ Posted on Friday, November 09, 2007 - 09:23 am: ------------------------------------------------------------------ This thread raises an interesting issue concerning IDIQ contracts that has never been resolved. According to here_2_help, all CLINs of the hypothetical IDIQ contract are to be firm-fixed-price. Presumably, the offerors are to propose labor rates (presumably "loaded"). The total amount for labor and for other direct costs applicable to each task order will be negotiated on a task order by task order basis. Here_2_help has not said whether the contract would be multiple award or single award. If I understand the situation correctly, and I'm not sure that I do, the hypothetical contracting officer has taken the position that CAS will/might apply to individual task orders because amounts for other direct costs will be negotiated on a task order by task order basis, without adequate price competition. Is that right, here_2_help? If that's the situation, see FAR 16.505(B )(3), which reads as follows: "Pricing orders. If the contract did not establish the price for the supply or service, the contracting officer must establish prices for each order using the policies and methods in Subpart 15.4." I maintain that the hypothetical contract will not establish the price for the services to be acquired thereunder. It will merely establish an advance agreement on the amount that the contractor may include in its proposed task order price for an hour of labor, including cost and profit. The price for the service described in each work statement will be the total amount agreed upon for each task order, which will be negotiated prior to issuance of the task order. That being the case, and depending whether the contract would be multiple award and on how the task orders would be awarded, there may not be adequate price competition for task order pricing. That being the case, TINA and CAS may apply on a task order by task order basis. This has been a long-standing, lurking issue that no one has wanted to face because of the unpleasant implicatioins. I feel very comfortable with my position. Some will argue that price has been established because the parties have agreed upon fixed labor rates, but that position is an insult to the intelligence of a knowledgeable and competent contracting professional. That argument may be valid if orders would be priced on a T&M or L-H basis, but not if they will be priced on a firm-fixed-price basis, under which the contractor will not be paid by the hour, but for task completion. I think the hypothetical contracting officer is right, assuming that the contract meets other CAS criteria. But I'd wager that he/she thinks that TINA would not apply on an order-by-order basis, a position which would be inconsistent with his/her position on CAS. As for the legal status of the working group guidance, no one has cited a specific statement within that 60 page document. I have not read it in more than 20 years, I have no intention of reading it to find out what you are all referring to, and, in any case, I'm not a lawyer so you probably don't care about my opinion as to its legal standing.

If anyone wants to do a search on a relatively expensive service, your agency's Office of General Counsel more than likely has the service. An alternative is to check with your agency's library. Sometimes, they are linked to the various electronic services your agency has.

Don: How much does Westlaw and Interconnect cost a year. Is the government paying for it?

I've begun locking the threads last used prior to January 1, 2015, under each discussion section. You will still be able to read all threads on this discussion forum. You just won't be able to post to one that may have ended years ago. Because this discussion forum can be read by those who are unregistered (aka lurkers), here is what happens. Unregistered users read the discussion and find that you have created a wealth of information that interests them and they want to discuss with you. To discus it, they must register. Once they register, they then may go back to a thread from years ago and post to it. That's fine with me but others may wonder why an old thread is suddenly brought back to life. To discuss something in an old discussion thread, simply start a new thread about the issue that interests you.

I will check if I can find it.

I added the decision by the Court of Federal Claims in Savantage Financial Services, Inc. v. U. S., No. 14-307C, September 3, 2015 because I found the judge's review of the "justifications" interesting. Any thoughts.

Several Briefs have been filed during August 2015 and they are available at the link I provided above.

Jamaal: Carl was correct in mentioning that an agency ethics officer might consider Vern's offer as a gift. However, viewing the discussion as it occurred, I would consider it falling under an exception to a gift "a gift motivated solely by . . . personal friendship" which would exempt it as a gift. Here is the Office of Government Ethics site and I have it linked to Invitations From Outside Sources The government will derive a huge benefit from your attendance and at no cost to the government--except maybe travel and the days of your attendance. Check with you Agency Ethics Official. If they have any questions, please ask them to contact me.

I would not use any gimmicks in an attempt to defeat the fair opportunity provisions of FASA. I have linked my last effort before retirement. Before I walked into the IRS procurement office, I had studied both the law and the legislative intent of FASA's fair opportunity process. I remember discussing the issues with the contracting officer. He said he had one opinion and I had another. Of course, my opinion was backed by law and his wasn't. To retire, I had to sell the content of the report to GAO's General Counsel--including the person who signs bid protests. I knew General Counsel would bite and they did. I retired in September 2003 and General Counsel finally issued it in July 2004. I wrote much of the attachment before I left as part of an auditing division and General Counsel issued it simply because they felt strongly about the issue. The auditing division didn't understand the issue once I left so it had to be done this way. In the first footnote, you will see that General Counsel had to make some contacts for themselves. That's part of their process of getting comfortable. You will not see me mentioned anywhere because it is a General Counsel product. If the senior attorney mentioned ever sees this, I apologize for initially acting as an arrogant ass but that was part of my getting comfortable process. Now, I'm just an old ass. You will find a link to this report under the appropriate Wifcon.com bid protest section. The Federal Acquisition Streamlining Act of 1994 – Fair opportunity procedures under multiple award task order contracts.

I hate to be the killjoy but I think Vern completed the answering of this question in post #3. Thank you Vern. We can end the discussion of icon or username selection. These extra posts usually make my life more difficult.

Wifcon.com is beginning its 18th year on the internet.

Thank you Vern. I think the SCOTUS Blog has that information on its servers. Here is the docket with documents from SCOTUS Blog: Kingdomware Technologies, Inc

On June 20, 2015, Vern Edwards introduced us to F & F Laboratories, Inc., ASBCA 33007, 89-1 BCA ¶ 21207 (Sept. 14, 1988). In early 1986, the Defense Personnel Support Center (DPSC) awarded a contract to F & F Laboratories, Inc. (F & F) for "starch jelly bars" as part of the military's abandon ship ration procurement. F & F offered its commercial jelly bar as part of its proposal and it was incorporated into the contract documents. Unfortunately, the commercial product didn't fit into the abandon ship ration package and F & F was terminated for default. In an Armed Services Board of Contract Appeals (ASBCA) decision, the termination for default was converted into a termination for convenience because DPSC "was obligated to reject [F & F's] offer prior to award and that its failure to do so until [F & F] manufactured over half the supplies after award was a material breach of the contract." If life was simple and straightforward, we could end there. In 1985, DPSC's records showed that its last procurement for jelly bars was with the Chuckles Division of Nabisco in 1982. The Chuckles bar came in 5 pieces to a bar and one current image shows the bar is nearly 5 Inches long today. That is larger than the federal specification size from the ASBCA case. The F & F bar, in 1986, was over 6 inches with 5 pieces also. Since both firms were Illinois firms, I assume that the sizes of the commercial bars were about the same in the 1980s. That is a long way of concluding that the Chuckles Division probably produced a non-commercial jelly bar for DPSC's needs in 1982. Chuckles is now part of the Ferrara Candy Company which, in addition to Chuckles and other candies, makes "Atomic Fireball" candies. I may not have been a fan of Chuckles as a kid but I can remember those fireballs. F & F was in bankruptcy in 2010 and is now The Smith Brothers Co. You can track it down with Google Maps. So what's the punch-line here? That's the funny part. I never saw an F & F jelly candy bar--until a day or two ago. Read through the discussion on this site and pay special attention to the image of the "Jelly Bar." You can enlarge the size of the image. The Abandon Ship ration the fellow tested was probably made between 1986 and 1992. You will see that the jelly bar was made by Lucy Ellen Candies which, if you do a bit of research, was a division of F & F. We can assume that after the ASBCA decision F & F and DPSC worked things out and F & F produced a non-commercial jelly bar to federal specifications. For that brief period of time, Lucy Ellen may have found happiness at DPSC.

This is the listing containing the Kingdomware protests. The last one is the one now before the Supreme Court. FAR 19.1405: Service-disabled veteran-owned small business set-aside procedures .

This came from the GAO/COFC controversy, if I remember correctly. This will be the first SCOTUS "protest" ruling on the site, if I remember correctly, but I believe it will be in the next term.

Maybe a sticky situation.

F & F Laboratories, Inc..

Send a file to my e-mail and I will add it here.

I am posting this for a new member--Cman--who added it as a blog entry. Please respond. If an offer in response to an RFP states a proposed solution, and there is no clause that explicitly incorporates the solution into the contract (E.g., 5352.215-9005 Incorporation of Contractor's Technical Proposal. 5352.215-9006 Intent to Incorporate Contractor's Technical Proposal), is the contractor required to follow the proposed solution? In effect, does the solution become legally binding once an award is made? If not, other than keeping the customer happy, what is to keep the contractor from straying completely from the proposed solution and simply executing a different solution that still meets the requirements of the SOW?

You are correct. I meant FAR Case.

Please check the Home Page for FAC 2005-019 which was issued today.