bob7947

The basic structure of sealed bidding (as it is now called) is outlined in an appropriations law dated 8/26/1842 at 5 Stat. 526. In summary, the law called for: 1. public notice of the agency need, 2. sealed offers, 3. public opening of bids, and 4. award to the low bidder. There is also mention of sureties, etc. Actually, at least one part of the above can be tracked as far back as 1792 (1 Stat 234)

As I quickly read through Part 14, I did not identify much related to legislation that I can remember. However, I do seem to remember that the basic steps evolved from an 1850s law. That law may have evolved from an Attorney General decision or another law from the 1820s. I don't know if I have any of it around here anymore. What has become current contracting regulation is an ugly assortment of laws, Comptroller General decisions, Court decisions, bad ideas, custom, and who knows what else. A contract specialist is a pin ball. Someone pulls back the spring and sends him/her on their way through the contracting process. There they can get pinged by unknowledgeable congressional staffers, elected representatives, bureaucrats, unknowledgeable auditors, judges, and an assortment of other troublemakers. So much for innovation.

Vern: What about FAR Part 14?

I have no idea. However, I would like to see what individuals believe is written to satisfy law--in percent. For example, if you believe 95% of the FAR is written to satisfy law, write 95%. If you believe 5%, write 5%.

This was posted as a blog, incorrectly by KT Administrator. The "blog" has been removed. My office is exploring an option to utilize a “bridge contract” to have continued services. I’m not referring to exercising 52.217-8 or -9 clauses. We’ve already exercised -8 and there are no more -9 to exercise. In other words, there will be no valid contracts in place to support the requirements in a couple of months. The current contract that is about to expire is a level of effort services contract that was originally awarded as a sole source. I believe the procurement team in my office has a clear understanding as far as new J&A requirements are concerned. However, as far as the contract price and procurement execution procedure matters are concerned, everyone is in a disarrayed mode. Important information that cannot be ignored is that the estimated contract value exceeds the certified cost or pricing data. That is a very short summary of challenging background. Research indicated, “A bridge contract is a short-term solution to obtain services during an interim period until a new contract can be established”. With that being said, my questions at this point are how to handle the contract price and how to establish contract in the contract writing system. Is the contractor required to submit a new proposal under this fancy term of “bridge contract”? How the contractor should be notified and with what kinds of instructions should be provided to the contractor to submit their proposal for the contract price? The messages and instructions have been given to use are “obtain quick and minimal proposal”. During the discussion session, there were two options were presented; 1) issue a modification under the existing contract that is about to expire or 2) generate a new contract number since the bridge contract is a stand-alone contract. Further discussed as to if we were to issue a modification, under what authority? Also, does it require negotiations? If anyone has this type of experience, please feel free to share your experience and if possible, please share some samples would be greatly helpful!!!

Last night, I posted a decision by the Court of Appeals for the Federal Circuit (CAFC) dealing with the above topic. The interesting part is that GAO first sustained the protest, the Court of Federal Claims (COFC) sided with the federal agency and denied the protest, and the CAFC reversed the COFC decision and "effectively upheld" the GAO decision. This is the first time that I remember posting decisions on an issue by all 3 forums. All 3 excerpts from the 3 decisions are on the link below with links to the original decisions. Since I list the forums in order, you can start with the GAO decision, move to the COFC decision, and finally read the CAFC last decision. http://www.wifcon.com/pd35_003.htm

You will notice that Hill carries other FAR Supplements also. What do they need with Education, Agriculture, etc.? When did they become part of the DoD? Its time to cut their budget.

Thank you Carl! http://www.wifcon.com/pd11ambig.htm

Professor: I cannot put into words how much your years of work mean to me. I'll simply say that, Wifcon.com, its discussion forum, and its blogs, would not exist if it wasn't for you. Thank You.

For the next 24 hours, a nor'easter will spread snow, sleet, rain, and winds of up to 50 mph. If the Home Page is not updated for Friday, the power here is out.

Wednesday at 4 am, it hit. First was the flickering, then everything powered by electricity went out. The culprit, pouring rain that froze on everything. About an hour ago, after being told that Sunday would be the day electricity would return, the electricity returned early! After hitting 48, the house is now at 55 degrees and climbing. That is why there was no update of the Home Page for today. There will be no update for Friday either. I will spend the rest of the night thanking everything greater than me, so I will be quite busy. It is amazing how good a cup of hot coffee feels. Same thing for the touch of hot water. I look forward to a hot shower tomorrow. Anyway, I'm more thankful for the little things in life after this experience.

Unfortunately, the software for this discussion board adds smiley faces for certain letters that are in parentheses. To defeat this annoyance, when writing ( make it ( B ). If it is a © make it a ( c ). Just add a space after the "(" and before the ")". Each of you can do it with your edit function.

Thanks for the responses. After I had given up, I noticed that my keyboard was on "Numbers Lock" (NumLock) which I quickly changed. Now, this board remembers me. I have no idea if the NumLock had any connection to the Remember Me issue. Anyway, now that problem appears to have ended--for now.

During the past week, my "Remember Me" feature after I sign in hasn't been working. The Board simply doesn't remember me anymore so I have to sign in every time I use it. Has anyone else experienced the same problem this past week?

From procure: Can you exercise an Option Year for just one month or two? Our office will run out of funding before year end.

Please list the correct topic name and I will make the change.

Joel: I've repaired the link. You've identified the reason I place public domain items from government servers in the Wifcon.com server. Government web sites appear to change internet addresses with little consideration for linking. The U. S. Court of Federal Claims site apparently initially links opinions without the word "opinions" in their links. Then, after a few days, the word "opinions" is added to the link. Of course, that destroys the link. For example, here is what I linked to originally: http://www.uscfc.uscourts.gov/sites/default/files/BRUGGINK.NEENAN082213.pdf Here is the current link: http://www.uscfc.uscourts.gov/sites/default/files/opinions/BRUGGINK.NEENAN082213.pdf

In Thomas F. Neenan, as Trustee of the Thomas F. Neenan, Sr., Revocable Trust, v. U. S., No. 11-733C, August 22, 2013, you are taken through some of the basics of federal contracting. How many basic points can you identify in this 10-page opinion? I've listed those that I identified below: 1. Offer and acceptance, unconditional offer, preliminary negotiations. 2. Change in ownership, death of party, trust agreement. 3. Pattern or practice. 4. Contract specialist's authority, integral part of the duties assigned. 5. Express authority, implied authority, actual authority, apparent authority.

For the past decade or more, I have been posting decisions/opinions on this clause on the protest page. Here you have information from GAO and 2 federal courts on FAR 52.219-14: Limitations on Subcontracting. If you have a FAR, you can find decisions pertaining to the various sections of it. Wifcon.com--more than just a discussion forum.

It's not a religious thing; it's a contracting thing — G. L. Christian style. We've all heard of the "Christian Doctrine." Here is how one judge of the Court of Federal Claims applied it to Bay County, Florida v. U. S., No. 11-157C, August 14, 2013 — released today. You can read the entire 11-page opinion or you can read the excerpt below. "The government argues that Bay County waived its potential status as an independent regulatory body by including FAR § 54.241-8 in the Sewage Contract — ignoring the limitation of Subsection (a) on application, viz., “[t]his clause applies to the extent that services furnished hereunder are not subject to regulation by a regulatory body.” FAR § 52.241-8(a); see Hr’g Tr. 11:11 to 12:1. Pointing to the principle that this court must avoid contract interpretations that render the FAR or contract terms superfluous, the government contends that the only way to give meaning to the Sewage Contract is to treat Bay County as a non-independent regulatory body. Hr’g Tr. 11:13 to 15:3. In making this argument, the government implicitly urges that a contractual provision that is inapplicable by its own terms must take precedence over the FAR’s requirements. The court cannot accede to such a proposition. When a contract subject to the FAR incorporates improper terms of the FAR, the correct provisions of the FAR control. See S.J. Amoroso Const. Co. v. United States, 12 F.3d 1072, 1075 (Fed. Cir. 1993); G.L. Christian & Assocs. v. United States, 312 F.2d 418, 426 (Ct. Cl.1963), mot. for rehearing and reargument denied, 320 F.2d 345 (Ct. Cl. 1963). “Under the so called Christian doctrine, a mandatory contract clause that expresses a significant or deeply ingrained strand of procurement policy is considered to be included in a contract by operation of law.” S.J. Amoroso, 12 F.3d at 1075. In S.J. Amoroso, as here, an improper clause was substituted for a proper clause. Id. As S.J. Amoroso held, “[a]pplication of the Christian doctrine turns not on whether the clause was intentionally or inadvertently omitted, but on whether procurement policies are being ‘avoided or evaded (deliberately or negligently) by lesser officials.’” Id. (citing G.L. Christian & Assocs., 320 F.2d at 351). The proper clause was consequently given effect. Id. at 1077. In this instance, inclusion of the clause prescribed for unregulated utilities constitutes such an impermissible deviation. See FAR § 1.401 (“Deviation means . . . [t]he omission of any solicitation provision or contract clause when its prescription requires its use . . . [or] [t]he use of a solicitation provision or contract clause . . . if such use is inconsistent with the intent, principle, or substance of the prescription or related coverage on the subject matter in the FAR.”). The text of the FAR is unambiguous in its requirement for inclusion of the proper change of rate clause: “The contracting officer shall insert clauses substantially the same as the clauses listed below in solicitations and contracts under the prescribed conditions.” FAR § 41.501(d) (emphasis added). The prescribed condition for inclusion of FAR § 52.241-7 is that the utility services “are subject to a regulatory body.” Id. As established supra, Bay County qualifies as an independent regulatory body, and as such, FAR § 52.241-7 is a required term of the utility contract. Correspondingly, FAR § 52.241-8 is inappropriate. Although deviations may be authorized by the agency head for individual contract actions, such a deviation must be documented and justified in the contract file. FAR § 1.403. No such documentation or justification is present here. Accordingly, the Christian doctrine applies and binds the contracting parties to the mandatory contractual term. See G.L. Christian & Assocs., 312 F.2d at 426 (“We are not, and should not be, slow to find the standard [regulation-mandated] article incorporated, as a matter of law, into plaintiff’s contract if the [r]egulations can fairly be read as permitting that interpretation.”). “Such regulations are law, binding on the contract parties” when otherwise applicable to the contract, Dravo Corp. v. United States, 480 F.2d 1331, 1333 (Ct. Cl. 1973), and “need not be physically incorporated into the contract,” First Nat’l Bank of Louisa, Ky. v. United States, 6 Cl. Ct. 241, 244 (1984) (citing Hills Transp. Co. v. United States, 492 F.2d 1394, 1396 (Ct. Cl. 1974)); see also Bethlehem Steel Corp. v. United States, 423 F.2d 300, 305 (Ct. Cl. 1970) (holding that the regulation need not be in effect when the contract was awarded so long as adoption of the regulation was remedial and intended to afford safeguards to the contractor). The court determines as a matter of law that the clause pertaining to independently regulated utilities, FAR § 52.241-7, is incorporated into the contract in place of the improper clause, FAR § 52.241-8, which is physically present."

In my last post on the Wifcon Blog, I proposed a House and Senate Committee on Contracting and Assistance. Why, you might ask? Remember the Clinger-Cohen Act? It was part of the National Defense Authorization Act for Fiscal Year 1996, P. L 104-106. What about the SBIR/STTR Reauthorization Act of 2011? It was part of the National Defense Authorization Act for Fiscal Year 2012, P. L. 112-81. What about the new Limitations on Subcontracting provision that was mentioned on the Wifcon Forum? You may have guessed: The National Defense Authorization Act for Fiscal Year 2013, P. L. 112-239, Section 1651. So how does government-wide contracting legislation end up in the annual National Defense Authorization Acts? Think "sticky bill!" To be more exact, and maybe more accurate as it affects contracting, remember the scene in Saving Private Ryan where Tom Hanks' character explains how the remnants of his unit will deal with tanks--" ." As the annual National Defense Authorization Act makes its way through the corridors of Congress, you throw your sticky bill at it and hope it sticks.It doesn't begin nor end there. Remember our old friend the Federal Acquisition Streamlining Act of 1994? It was originally introduced in the old Senate Committee on Government Affairs, now the Senate Committee on Homeland Security and Governmental Affairs. This Senate Committee has a counterpart in the House of Representatives--the House Committee on Oversight and Government Reform, formerly the old Committee on Government Operations. If Congress cannot keep the names of its committees simple, how can it keep contracting legislation streamlined? I'll answer that--it cannot. Getting back to the House Committee on Oversight and Government Reform, this year its chairman introduced H. R. 1232, the Federal Information Technology Acquisition Reform Act. Currently, H. R. 1232 is wallowing in the full House of Representatives. It may eventually stick to something and get passed. Pray it doesn't. Finally, there are agencies totally overseen by a single committee in the House and Senate. These committees treat their agencies as their own turf, and of course, write agency-specific contracting laws. I remember sitting with some bright, young, eager, staff members of one such committee. They were writing a piece of legislation that would affect an agency's contracting law. As I read the bill, all I could think of was--at least they heard of the Competition-in-Contracting Act. Eventually, the bill was passed without question and became another piece of garbage legislation affecting one agency's contracting. If you are working in one of these agencies' contracting offices, woe are you. I only will briefly mention that the House and Senate Small Business Committees can initiate their own legislation and eventually pass it too. In our wonderful game of baseball, one pitcher stands on a hill and throws the ball towards the batter to start the action. If Congress wrote the rules for baseball, all 8 players facing the batter would throw balls toward the batter and the catcher squatting behind the batter would take some cheap shots at the batter. If you work in a contracting office or if you are a contractor, you are the batter in Congress's version of baseball.

I had planned to write a detailed article about my plan for the above committees. However, I'm never going to get to it. So, I'm going to try a series of quick posts to get my thoughts published. Don't tell me that these committees will never be formed. I know they won't. Committees and subcommittees are entities run by politicians for politicians. However, I can dream. You can see from the titles of my proposed committees that they would deal with federal contracting and federal assistance. For now, this blog entry will deal with federal contracting only. In fact, this blog entry will deal only with the structure of the committees. Both the House and Senate committees will have the same jurisdiction and subcommittees. Here we go! I view the first 4 subcommittees as oversight committees that would work with the last 2 subcommittees. However, I see much work for the final 2 subcommittees beginning with Day 1. More later.

All: And in the end . . . .

Here is section 1651 of the NDAA for 2013

All: I don't mind legal discussions since we have numerous attorneys registered to post here. However, I want to remind everyone that this forum does not provide any legal advice to anyone from anyone.