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jvanhorne

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Posts posted by jvanhorne

  1. 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?

  2. 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?

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. Are you perhaps thinking about the covenant against contingent fees described in FAR 3.404?

    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.

  8. While I think that an agency should document the file to explain why it is directing offerors to hire a specific subcontractor, and that the explanation must be reasonable, I do not agree that the agency is required to prepare a J&A as prescribed by FAR 6.303. Nothing in statute or regulation requires a J&A in support of directed subcontracting. Moreover, directed subcontracting does not constitute a sole source acquisition as defined in FAR 2.101.

    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(B)(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.

  9. 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?

  10. The COFC held that the phrase "in connection with a procurement or a proposed procurement" applied only to [3], but not [1] or [2], which is why they would have jurisdiction over the solicitation and award of nonprocurement contracts. However, this interpretation also means that they would not have jurisdiction over any alleged violation of statute or regulation in connection with a nonprocurement action other than what's covered in [1] and [2]. In other words, [3] does not apply to nonprocurement actions.

    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.

  11. Until Congress, GAO, SBA, and all the people up in the nosebleed pay grades get their stuff together and decide among themselves what the actual rules should be, we mice will continue to debate without any hope of reaching a consensus.

    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.

  12. Jon,

    Are you saying that an agency would have to execute a sole source J&A in order to direct the use of a specific subcontractor?

    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.

  13. I am interested in how substantively they commit to the corrective action. If feels like they are heading for another sole source award. Seems the incumbent has this real cool software that tracks stuff and we will all be in imminent peril if the agency isn't able to continue to use this software. My impression: like much old software, this is something that now could be replicated by a 10-year old on a laptop.

    Well, the agency wanted a settlement agreement, so I added language that the release of claims regarding the award of the contract in question did not cover their failure to proceed with the competitive procurement they promised in a presolicitation notice published in FedBizOpps.

    I also learned that the reimbursement of protest costs does not include the costs of negotiating a settlement of the protest. Something new every day.

  14. Thanks to all for your input. I have reviewed my agencies KO policies and thresholds for legal reviews and higher HQ approvals and, in case you haven't guessed, am taking my KO responsibilities seriously. The information gained at this forum and it's predecessor will be invaluable and the information available in the discussions and archives are a great jumping off point for inquiries. Thanks again.

    It's great that you're taking your warrant seriously, but this is much more of a risk for your contractors. From your point of view, if you are following internal policies on approvals, if this issue ever comes up in a litigation context, whoever does have the authority can ratify your action. From the contractor's point of view, if you act outside the scope of your authority and the agency chooses to not ratify the action, the contractor may be stuck. No such thing as apparent authority of agents when dealing with the government.

  15. I am looking for law or regulation references to support or refute the position that you can conduct a competitive acquisition, and as part of the RFP establish a requirement that all offerors must propose and the successful offeror must use a directed source for a particular aspect of the acquistion (i.e. a directed sub); and in such a situation no J&A is needed.

    Does anyone have a suggestion as to a statute or regulatory cite that I can read that addresses that scenario?

    In advance thx for your help.

    From the point of view of competitors of the directed source, this may be a violation of CICA. See Savantage Financial Servs. v. United States, 81 Fed. Cl. 300 (2008). Even though the agency is pushing the actual purchase to the prime contractor, the subcontract with the directed source is still part of a federal acquisition (per the statutory and FAR definition of procurement) and CICA applies. Of course, GAO won't touch this situation. You have to go the Court of Federal Claims to make this argument.

  16. .

    Significantly, in your case, the Agency has made some gesture to you to acknowledge your complaint and to look at how to prevent the same error in the future. To the GAO, if an Agency takes timely corrective action, then GAO doesn't need to be involved, and monetary damages or costs are not appropriate. . . . So sometimes an Agency is not able, for whatever reason, to see their own errors. These protests were dismissed, even though they could have been considered "slam dunks." What's important is not getting a protest sustained; what's important is getting Agency errors corrected.

    I am interested in how substantively they commit to the corrective action. If feels like they are heading for another sole source award. Seems the incumbent has this real cool software that tracks stuff and we will all be in imminent peril if the agency isn't able to continue to use this software. My impression: like much old software, this is something that now could be replicated by a 10-year old on a laptop.

  17. I started to say this yesterday I also haven't heard of any remedies like that either. I'm sure your client is just one of several companies qualified to compete. What's the remedy - give money to everyone that responds?

    Actually when you dig into these situations agencies usually have a pretty good excuse why a recompetition acquisition got delayed. It can be for anything like other priorities overtook the recompetition needs, key agency personnel aren't available, the requirement is changing, or the agency is seeing how another requirement might impact this one. From your client's standpoint, none sound good. But it's a reality.

    Actually no one responded here because there was no solicitation. Also, we just got the agency's stay over-ride and it looks like they are not claiming that there was a sole source determination. Of course, if you believe the over-ride, if the incumbent doesn't keep performing, it will be the end of civilization as we know it.

  18. I really don't know anything to suggest as an out of box remedy without some idea of what you're looking for.

    More money than I can get for legal fees (for whatever justification) or immediate new business for the client. And something more than a slap on the wrist for the agency (assuming the illegality is a blatant as it looks to be). It pains me to think they will get away with a promise to compete (someday). Of course, "out of the box" may be, or almost certainly will be, something I haven't thought of.

    Perhaps, I should restate the question: Has anyone heard of GAO doing anything creative by way of a remedy in a situation like this?

  19. If you are looking for compensation for lost business opportunities, I know of no basis for any such remedy. If you are serious, consult an attorney. If you are just blowing off steam, well, you have my sympathy.

    Sorry, Vern. I am a lawyer. I didn't mention compensation for lost opportunity because I assume that it would not be available. I was actually looking for some out of the box ideas. Perhaps I came to the wrong place.

  20. It could very well be that said "unnamed government agency" is or has justified a waiver not to synopsize or make public the information. Also, it could be that the 217-8 clause was used to extend the final option for 6 months (as it legally can) which makes the date 30 June 2010. You say "the day this extension expires the website shows a NEW contract..." 30 June 2010 is not here yet. Am I taking this statement out of context?

    The agency may have competed it. You don't know that. You haven't given enough information. Ever hear of "FedTeDs?" Just a guess.

    The agency already used the 6-month extension (10/1/09 to 3/31/10). The new contract runs from 4/1/10 to 9/30/10. I believe I mentioned we were dealing with federal fiscal years here.

    Actually, I had not heard of FedTeDs, but a quick internet search produced the following information:

    The Federal Technical Data Solution (FedTeDS) system was used over the past several years to post on-line technical data packages and other items associated with solicitations that required some level of access control. It interfaced directly with the Government wide Point of Entry (GPE), i.e. the FedBizOpps (FBO) system.

    In April 2008, a new version of FBO launched incorporating FedTeDS' capabilities. This allowed FedTeDS to be retired. Its access control capabilities for controlling sensitive but unclassified document packages are resident now in FBO and available to agency buyers when building procurement notices.

    The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued a final rule on Federal Acquisition Regulation (FAR) Case 2008-038 effective September 10, 2009. This ruling amends FAR Sections 5.102, 5.207 and 7.105 to (1) remove all references to FedTeDS and refer to the enhanced controls in the GPE, i.e. FBO, and(2) address technical data availability via GPE in lieu of FedTeDS, and (3) substitute GPE in lieu of FedTeDS in references to acquisition plans.

  21. Here's the scenario. Unnamed government agency has a publicly available website that offers certain services to other federal agencies. Website has links to contracts used for these services. These links show that the contract for these services had the last option (fifth year) exercised in FY09. Then a modification is listed pursuant to Option to Extend Services clause extending the contract for the first half of FY10. The day this extension expires the website shows a NEW contract for six months with no justification for other than full and open competition listed on the SF30. There has been no notice in fedbizops related in any way to this new contract.

    Even a casual review suggests multiple violations of CICA, so a bid protest is filed with GAO. Agency lawyer calls in a day or two and asks what we can do to make the protest go away (no indication that the agency has any defense for its actions). Then, a few days later, a fedbizops notice is posted that the agency is planning to compete the requirement.

    As far as I can tell the protest is a slam dunk winner. So the problem is what does the protester, who has had no chance to get any of this work for the last 18 months it has been pursuing this work, get out of this? Legal fees is a pretty useless remedy, but what else is there? And how if at all is the agency penalized for what looks like a clear violation of the law? It looks like the agency will promise (on a stack of FARs) that they will compete the work (eventually). I have an ugly feeling that GAO will be perfectly happy with that.

    Is there any precedent for an out of the box remedy here?

  22. Well I may have explained it poorly the contract option has been exercised. Then task orders are ordered against the contract, we are just talking about not ordering a piece of the contract anymore. I think we will be alright because we have met the garunteed min, and the contract is still in place we are just not ordering as much as we did in the past. Similair to a de-scoping of work...by letting the existing task order with that particulare work expire...

    Thank you...

    With that scenario, I can't see what the contractor would have as a basis for a claim. If anyone has a theory on how the contractor could claim breach, I would be interested in hearing it.

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