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jvanhorne

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About jvanhorne

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    http://www.vanhornelaw.com
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    Washington DC
  • Interests
    Everything in government contracts, but particularly bid protests both at GAO and the Court of Federal Claims.
  1. So an SF 1449 is pretty much a deal letter? That seem like a shame and a detriment to small businesses trying to get into government contracting. Basically that means get a BPA/FSS or sume such vehicle or don't bother.
  2. Yea, I looked at the statutes. You are probably right, the FAR councils probably figured the existing notices met the statutory requirements.
  3. So I stumbled across this delightful sounding concept while looking at FAR updates and thought, Oh boy, someone is trying to really help out small businesses figure out what they need to do to comply with the regs. Then I started looking around and I must say I couldn't see any difference between the "Small Entity Compliance Guide" and what I have always seen in a DAC. Is the Small Entity Compliance Guide just a way, as we would have said pre-internet, a way to kill more trees? What am I missing here?
  4. Because of past experiences, I have been interested in seeing what people are saying about this website development. From my own experience, the problem is not so much the procurement process as it is program management not up to the task of these massive IT projects. The procurement function can't substitute for good program management (and doesn't have the organizational clout to do it anyway). Of course, not even the Superman of PM could overcome politically imposed deadlines or constantly changing requirements. I also see this as a governmental HR problem. It would appear (albeit from the outside) that there is insufficient appreciation in federal agencies for maintaining an adequate level of procurement, PM and IT expertise in the ranks of government employees. There are some things that contractors just can't do effectively. A recent NYTimes oped piece (http://www.nytimes.com/2013/10/25/opinion/getting-to-the-bottom-of-healthcaregovs-flop.html?_r=0)%C2'>suggested forming a Government Digital Service like they have in the UK at a pretty high level in the government to superintend this kind of massive IT project. I'm thinking something like this at the OMB level might be helpful. So in addition to getting more feedback from the WIFCON community on this, I would be interested if there have been any specific FAR proposals as a response to the healthcare.gov fracas. I see that the President has been quoted as wanting to do something about IT procurement. Has anything been seen along this line?
  5. I haven't been able to get on fedbizopps for the last week. Does anyone know whether there is a problem with the site or the recent storm or the FBI did in the contractor? Don't tell me it's the browser. I've tried them all and I get the same error message, website not available.
  6. I looked at the table of contents for the Curry book. It seems to have a heavy emphasis on ethics and risk management from the CO perspective. The O'Conner book seems to cover the topics in a more general fashion and may be a better choice for a class text. From the samples on Amazon, the O'Conner book appears to be quite readable. I'm still open to other suggestions.
  7. Thanks so much for the input, Vern. The Feldman book is definitely too expensive for most students. I have actually been giving some thought to the Nutshell book. The Curry book does look interesting and I will check it out. Is anyone familiar with Understanding Government Contract Law by Terrence M. O'Connor (Pub. Date: February 2007)? The price is reasonable and it seems to be geared to contract professionals.
  8. I need suggestions for a graduate school text on government contracts. I teach an on-line graduate level course about half of which is devoted to government contracts. When I started teaching this course several years ago, they were using the Nash & Cibinic Administration of Government Contracts text. Of course, I was left with no textbook coverage of the award process so I lobbied for a different text. (Asking students to also buy the companion Award text would have been asking a bit too much.) The one I found, which was eventually accepted, was the American Bar Association's Government Contract Law text, which at least covered everything albeit in a form like a detailed outline. Now the university informs me that the book is not only out of print, but there are not enough copies available for the next semester of my class. So I need recommendations for a text that covers the entire government contracting process (from CICA to the Contract Disputes Act so to speak) at a level appropriate for students that may some government experience (many of them do) or no government experience. Suggestions gratefully accepted! Shameless self promotion encouraged.
  9. Yea, I think that was it. I discovered my problem - memory. It's not "ten percenters" but "five percenters." I searched on "covenant against contingent fees" and found a good article on the history which is substantially intertwined with the history of lobbying. Here's the link: http://tinyurl.com/38rvt2g Thanks for the suggestions.
  10. The reasoning in the Distributed Solutions and Savantage cases was that bid protest jurisdiction exists over "any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." (28 USC 1491((1)) The courts then went to the statutory definition of "procurement" (which is mirrored in the FAR 2.101 definitions of "acquisition" and "procurement"). That definition states: "The term ?procurement? includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout." (41 USC 403) In both cases, the agency had "determined a need for property or services" and thus a procurement was initiated which engaged the bid protest jurisdiction of the Court of Federal Claims. I agree that the FAR may not require a formal J&A, but if the record does not have the functional equivalent justification of a sole source acquisition of the directed subcontract's goods or services, the subcontractor's competitors have a basis for a bid protest even if they could not have been awarded or bid on the prime contract.
  11. Having run into a current situation where a government subcontract basically acted as a middleman, adding no value but just pulling off 10% of the price, I thought to look up the origin on "ten percenter" which I vaguely recall was used at some time in the history of US government contracting for this kind of middleman. Well, after an internet search which turned up quite a number of unrelated uses of the term, I haven't been able to find the government contracting history that I thought was there. Anyone else have a better recollection?
  12. I though Ozdemir was an interesting case, but it has effectively been superseded by the Federal Circuit Court of Appeals decision, Resource Conservation Group, 597 F.3d 1238 (March 1, 2010). The Federal Circuit rejected the application of the last antecedent rule that Ozdemir applied, but instead found bid protest jurisdiction for non-procurement solicitations under the implied contract of fair dealing theory. So we still have Court of Federal Claims jurisdiction over non-procurement actions, but under 28 USC 1491(a)(1), not under 1491(b )(1). I rather like the application of the last antecedent rule and I am disappointed that the Federal Circuit didn't adopt it.
  13. I understood the current dispute between GAO, SBA/DOJ and Congress to be over priority between the various special set-aside programs (8a, HUBZone, SDVO) and not priority of those programs over a generic small business set-aside. As it stands, I don't think a contracting officer has any choice but to give all of those special programs parity as directed by DOJ. Interesting question whether a bid protest of that CO decision would make sense, at least while the appeal of Mission Critical Solutions is pending. Given the GAO position, a protest there would be pointless. At the Court of Federal Claims, while the GAO opinions and the MCS Court of Federal Claims opinion would support a protest, other judges in the Court are not obligated to follow the MCS decision. While the Court doesn't follow the GAO timeliness rules, one can't wait forever to file a protest.
  14. Yes, the agency in Savantage might have won if they had had an appropriate sole source J&A. Of course, that would have been a bit difficult in that case because there were 5 software financial services software products already certified by FSIO (part of OMB). Now the procurement in Savantage was a very high profile procurement. I suspect that in many cases agencies get away with this all the time and no one is the wiser. For the creative procurement professional, there all sorts of ways to get around competition.
  15. I've seen a subcontract for labor services where the subcontractor has to provide dining facilities and housing for the labor force. My recollection is that the prime contractor takes title to the facilities. If the prime is paying the full cost of the facilities, I would be surprised if the prime didn't pass title on to the government.
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