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C Culham

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Everything posted by C Culham

  1. GSA schedule contracts

    Yes, see FAR 8.402(a). Items can be added to a FSS order that might be non-commercial but see 8.402(f) as generally speaking doing so requires several steps/decision points regarding competition, set aside, etc. because such an item is considered to be "open market".
  2. CPAR Dispute Deadline

    The Contract Disputes Act (CDA) has been reasoned to apply to disputes with regard to CPARs evaluations and so the 6 years may apply. Beyond that I would suggest a contractor seek expert advice with regard to effort of disputing both under the administrative allowance of FAR part 42 and use of the CDA, if CDA is intended to be pursued, as details count and what relief is allowed can be confusing.
  3. What laws apply to the US. Mint?

    Ah hah.....that's it after I have put in all this time and even came back! In order of your questions. It does have to do with "rules" which you said not any apply. Nope, didn't ask as don't care, the question as to whether DTAP applies has been answered. I have answered this and you agreed with the answer so why repeat the question again. You are the one hung up on the ideal that the whole of the DTAP must apply or none of it does so I will leave it to you to ask. My only thought is well I guess it operates like the FAR guiding principles to an extent, it applies when it applies and does not when it does not. You bet it has limitations, it almost says it in its language, and I for one think that I could part and parcel the DTAP to determine when it would apply to a procurement that I am conducting and when it does not. My basis is that a publically available rule does exist under the plain meaning of the term. Didn't you read my post of Monday at 10:26am? As to the USC references two thoughts. First, are you now wanting to talk Constitution, when before you did not? I am confused. Secondly, my read of 5 USC 602(2) suggests that you have overlooked this "the term “rule” means any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of this title, (emphasis added) wherein 553(b) provides and I quote - "Except when notice or hearing is required by statute, this subsection does not apply—(A)to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or(B)when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." (emphasis added) Did you find such a notice or statute that that the DTAP as a policy is required to be published? I answered this question why keep repeating it? I know you won't accept it, enough already. I apologized, like it as it was provided or not, your choice not mine.
  4. What laws apply to the US. Mint?

    Well I see you are not done at trying to discourage my participation in the discussion because I just can't learn! Still more. I will really enjoy adding careless to my resume now! What I said was what appeared to me to be the case. That statement was true then and now. It still appears that way to me. Oh for Pete's sake. So by example a contractor could not file a protest direct with the US Mint? Reference - DTAP 1033.103. This statement (above) is the very reason I continue to repeat myself. Your edited post of 1/14/2018 reads as follows in full - None. The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public. The first sentence of FAR 1.101 is a lie. The question of the OP is "What rules do?" and you said None or in other words not any. Supporting that one rule - GAO - does not is not supporting not any. Now by our posts after your response, but most especially yours, inclusive of your last, supports that rules of law and regulation do and you want to quibble that you were not talking about the "Constitution", actual and prospective contractors, etc. As I posed before (no apology for the repeat) just think if the thread ended with your post as quoted above? Just say'n. Agreed. To your points - A prospective contractor has the right of protest to the agency. DTAP reference already provided. With regard to the DTAP and your further effort to disclaim it as a rule my position is clear but I do believe you are missing a valuable point that comes from the Slattery case and that point being as quoted from the case - "The jurisdictional criterion is not how the government entity is funded or its obligation met but whether the government entity was acting on behalf of the government." It remains untried with regard to a protest yet but I would pose that as the DTAP is followed by the US Mint in performing procurements it could be depended on to show that the US Mint was/is acting on behalf of the government. So I agree it depends. But to the to the point of - it depends - it is an operative position in much of FAR conducted procurements too as contracting no matter how or who is conducting it is not black and white. Effort appreciated, Carl PS - In my efforts of researching the full discussion of this thread I reached out to a US Mint CO with regard to whether the DTAP applies to procurements of the US Mint. The answer was that it does and that it is followed to the "maximum extent practical." As reference DTAP 1001.601 was provided.
  5. What laws apply to the US. Mint?

    I have looked at multiple references with regard to NAFI and feel I understand the distinction - Tucker Act versus CDA. I brought in NAFI because you said this. With no distinction regarding CDA. So in total your arguments have be none and then edited and then any and now.... True statement or not true statement? Not any rights are available to a prospective contractor or actual contractor to the U.S. Mint with regard to the Mint's conduct of their procurements.
  6. What laws apply to the US. Mint?

    Vern - Yep, glutton for punishment. I do appreciate the opportunity to respond further. To your points in your edited post– As I have provided there is both law and rule that do apply to the US Mint. They may not provide the detail the OP is hoping for yet there is law that as we have both repeated being that Federal laws governing Federal procurement or public contract is not applicable to the US Mint. To say not any laws apply is not in keeping with the fact that 31 U.S.C. § 5136 exists and does apply to the US Mint. As to a rule I have maintained and will maintain that the DTAP is a rule and does apply to the US Mint. As I further provided as a result of the effort I put into researching the top of this thread another rule also applies to the US Mint and that is of a legal doctrine – the “NAFI doctrine.” To your most recent post and the view that I have casually ignored elements of the DTAP I offer you too seem to ignore the whole of the DTAP. As based on your arguments regarding of the DTAP being not applicable for the US Mint then one would also conclude that delegations of procurement authority are not applicable to US Mint employees who contract for products or services, the Director the Mint has no authority to award and administer contracts, and there is no unique or non-unique considerations to be made with regard to US Mint procurements. Said generally through an explicit quote from the DTAP it adopts guiding principles that do not always provide the imperative but provides that “The FAR, DTAR, and the supplemental DTAP are to be construed liberally to achieve optimum benefit and maximum value for all Treasury acquisitions, and subsequent actions pursuant thereto should be consistent with statutory and regulatory requirements, policy, and sound business judgment. It is disconcerting to me for something like 45 years I have put great value in your thoughts, guidance, and opinion only be summarily and with routine to be attacked with statements about my personal attributes as opposed to simply sticking to the debate. Pardon me but I do not, and I am not, nor do I present a “pile of lard” and or “stupid”. Your intent to discourage my participation in this thread and the WIFCON Forum is for me far less compelling than my personal resolve to stand my ground on views I have presented and be an active participant. So as clearly stated more than once let me know when you find that Treasury provides that their DTAP is not applicable to the US Mint until then I apologize for upsetting you in my attempt to make honest and researched arguments as to why stating that not any laws or rules apply to the US Mint could be confusing to one that simple reads the thread if it ended with your “None” statement. Most and Always Respectfully, Carl
  7. My thought is that there is no opportunity to waive when you consider the supporting USC as its wording unlike the Miller Act provides no language for waiver - reference 40 U.S. Code § 3132. Seems payment protection "shall" be selected from those available. Saying this as first thought was that a individual deviation might be an option but FAR 1.402 appears to preclude the option on the fact that the requirement of 40 U.S. Code § 3132. But then again there is the wiggle room of 1.402 as well. Just my read anyway......
  8. What laws apply to the US. Mint?

    Vern Edwards – Oh for goodness sake. Remember my “done” carried a caveat and that was leave it to others to make up their own minds. And this says the same thing by my read…. This is the very reason I said I am done. You had your say I had mine, that’s it. I just do not get how I am the bad guy when you edit your posts, tell me stuff like “I won’t respond to you” and “done” in previous posts you make and when the shoe is on the other foot you whine. Get over it.
  9. What laws apply to the US. Mint?

    Vern Edwards – Thank you. Interesting conclusions but to an extent I do not think they balance with the whole of what has been litigated with regard to the “NAFI Doctrine”. Yep a new term for me, only found it as I continued to think about this discussion. I have not concluded that the DTAP does not apply after reading through some of the many references I have found, noting only that once a contractor has a dispute or protest involving the US Mint they are in for quite a ride. Otherwise I am done with this discussion thread and will leave it others to draw their own conclusions. “NAFI Doctrine - 76. Nonappropriated Fund Instrumentality Claims A nonappropriated fund instrumentality (NAFI) is an entity to which Congress has appropriated no funds, and for which it assumes no financial obligation. See Standard Oil Co. v. Johnson, 316 U.S. 481, 485 (1942). NAFIs include military post exchanges and officers clubs. Slattery v. United States, 635 F.3d 1298, 1304 (Fed. Cir. 2011) (en banc). Although a Government entity's status as a NAFI used to be a bar to jurisdiction over contract disputes under the Tucker Act, the jurisdictional criterion no longer is how the entity is funded, but whether it was acting on behalf of the Government. Id. at 1301.” (Reference: https://www.justice.gov/usam/civil-resource-manual-76-nonappropriated-fund-instrumentality-claims) Some additional references with a whole bunch more available via internet search. I might add that there is even coverage to an extent in the GAO Redbook. Slattery v. United States, 635 F.3d 1298, 1300 (Fed. Cir. 2011) (en banc). (This appears to be an important change to the NAFI doctrine especially if the US Supreme court has not overturned it as in general it concludes that a NAFI acting on behalf of the Government is not immune unless specific statute so states. AINS, Inc. v. United States, 365 F.3d 1333, 1344 (Fed. Cir. 2004). (This case by my read was the general holding prior to Slattery.)
  10. What laws apply to the US. Mint?

    Help me understand your logic. Isn't 41 USC 1707 a "provisions of law governing procurement or public contracts" and as such, pursuant to 31 U.S.C. § 5136, it is not applicable to the U.S. Mint. In fact none of 41 USC would be applicable would it? Or in other words if Treasury/U.S. Mint wants to adopt anything out of the FAR and DTAR as their rule (policy) for doing procurements they could. I do understand that they might run up against the likes of GAO (and others) as noted because an entity like GAO would exclude themselves from helping with protests for lack of jurisdiction pursuant to laws and regulations applicable to them.
  11. What laws apply to the US. Mint?

    Absolutely nothing. I might ask the same back to you but I won't. Again I only offering my research that supports that the DTAP does apply to the Mint. I did scan the DTAP and it says this "The DTAP applies to all acquisitions of supplies and services involving the obligation of appropriated or non-appropriated funds." Again I will retract if it is found that my conclusion that DTAP applies to procurements of the US Mint is wrong. That easy!
  12. What laws apply to the US. Mint?

    Vern Edwards - Nope. You did and continue to do so. Why? Heck I do not know. None, really? Rule (emphasis added) - "1. An established standard, guide, or regulation; a principle or regulation set up by authority, prescribing or directing action or forbearance; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics" (Blacks Online Dictionary) There are no regulations but there are "rules" its the DTAP, it may be stupid, they are available to the public yet it is the rule until you convince me otherwise. So you are piling the lard not me. Feel free to keep it up and we will measure piles when you are done!
  13. What laws apply to the US. Mint?

    Vern Edwards - What does the GAO decision have to do with it? I already provided that the U.S. Mint is not subject to the FAR. I guess you didn't believe me but thanks for supporting that the Mint is not subject to the FAR. Again I provided that Federal law states that - "Provided further, That provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations." It is clear from this citation of the CFR that the FAR and TDAR as related to the FAR are not imperative to the US Mint . I repeat however that it is clear that DTAP as a policy does apply to the US Mint as the forward to the document says it does because the US Mint uses non-appropriated funds. Until you provide a specific statement that the DTAP does not apply I stand by my conclusion that it does and as such that DTAP is published for the public to review. Further - Yep that is correct and the DTAP even acknowledges that the DTAP is not codified yet is binding onTreasury bureaus. DTAP quote (emphasis added)- "The contents of the DTAP are intended to provide binding internal, non-codified acquisition policy and procedure to various Treasury procurement bureaus." The OP also asked this question - The answer is two fold - read the solicitations that the US Mint posts on FBO and ask the contracting specialist at the US Mint. Well you did say "None" and your post still shows it. This is notwithstanding that you have edited the post anyway after I posted. I am not going to play this stupid game again as that is your routine. My references are not misleading they are fact, my conclusions are based on the facts, and my posts are unedited. Let me know when you find a written official affirmation that the DTAP does not apply to the US Mint and then I might reconsider until then post away, edit away.
  14. What laws apply to the US. Mint?

    In my view the response of "None" is very misleading. While the OP has raised one question the OP has also made a statement that is mis-leading. That statement being - There is Federal law applicable to the U.S. Mint and its acquisition and that is 31 U.S.C. § 5136, which states clearly - Provided further, That provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations. So while the Federal Acquisition Regulation System does apply the requirements of the statutory language of Numismatic Public Enterprise Fund (31 USC 5134), which is a non-appropriated fund, places the responsibility on the Department of Treasury to put into place policy for the U.S. Mint to operate within with regard to the Fund. As noted the DTAP (see reference above) has been published by the Treasury Department and is applicable to the U.S. Mint and can be found publically available here - https://www.treasury.gov/about/organizational-structure/offices/Mgt/Pages/ProcurementPolicy-Regulations.aspx. Quoted from the DTAP's Forward - "The DTAP applies to all acquisitions of supplies and services involving the obligation of appropriated or non-appropriated funds." FAR 1.101 might be misleading yet the entirety of FAR 1. is clear, most especially, FAR 1.104 noting further that FAR part 2 defines an "Acquisition" as“ "the acquiring by contract with appropriated funds" The U.S. Mint does not operate with appropriated funds but rather through the Fund .
  15. What laws apply to the US. Mint?

    So have you considered the Department of Treasury Acquisition Procedure? https://www.treasury.gov/about/organizational-structure/offices/Mgt/Documents/DTAP_FY18_edition_version 1.pdf
  16. Mod Awarded in Error

    Did you think about issuing another modification to change the amount of time extension allowed in the first modification. In other words I do not get why you have reached the conclusion that canceling the mod is the final option to solve the issue of granting the time extension in the first place?
  17. Joel - From my view no it is not the same. If you want something in a FAR UCF solicitation to be a part of a FAR UCF contract then you "shall" place that in another Section other than "L". I would suggest that it would go in "H". For non-UCF use any concept that you want to make up. I believe the FAR is clear on this. As to answering the OP's question I agree if the OP's question relates to a FAR part 15 solicitation/solicitation contract that follows the UCF the question is answered. If it is non-UCF solicitation contract no one can answer the question without reading the made up solicitation/contract as it relates to whatever made up format it is in.
  18. Hopefully this thread is not going to confuse the masses because it is a mix of concepts for 1) a solicitation/contract when using the Uniform Contract Format (UCF) and 2) for a non-UCF solicitation/contract. For a UCF solicitation/contract the FAR is clear at 15.204 that when using the UCF “shall” is the controlling imperative. Specific to what shall be in Section L it is clear, and one could conclude, that anything other than what is demanded for the Section is a deviation from the FAR. Also it is concluded that if there is is something that you want in the awarded contract one should place that need somewhere other than Section L. 15.204-5 -- Part IV -- Representations and Instructions. The contracting officer shall prepare the representations and instructions as follows:……. (b) Section L, Instructions, conditions, and notices to offerors or respondents. Insert in this section solicitation provisions and other information and instructions not required elsewhere (emphasis added) to guide offerors or respondents in preparing proposals or responses to requests for information. Prospective offerors or respondents may be instructed to submit proposals or information in a specific format or severable parts to facilitate evaluation. The instructions may specify further organization of proposal or response parts, such as…. For formats using other than UCF anything can be done but should be stated. To confuse concepts of the UCF as directed by the FAR with non-UCF concepts that are made up for each solicitation/contract without adequate definitive language is foolish as it confuses even the most experienced in Federal contracting.
  19. With the progression of this discussion I am reminded of the FAR guidance if the acquisition in question is for a commercial item or service where commercial marketplace practices are encouraged (FAR 12.213 and FAR 12.302 especially at (c)). I could see where a bailment might be a way to approach the need of the laptop. As already noted adding by a modification based on all the considerations noted seems the most reasonable, expedient and less debated route.
  20. I I do not know the details of the Governments contract, nor do I want to ask a bunch of questions that finally bleed out all the information about the OP's situation and the OP's contract. But I will say this....what if, again only a "what if", the contract is for the development of an exhibit/presentation for tradeshows and now the Government rather than providing GFP wants the contractor to provide because the Governments processes for buying the laptop are too darn complicated. Lets do the whole emphasis and add "AND TO WHICH THE GOVERNMENT HAS TITLE." And let me add emphasis that can only add the context and information needed by the OP to determine whether the request is legit - ASK THE CO!
  21. I agree that the situation as painted does sound fishy. Consider the following along with responses already received - Contractor Acquired Property is allowed within federal government contracting. FAR Part 45 addresses this broadly at FAR subpart 45.4 and agency FAR supplements give a little guidance as well. If the CAP is not already included in the contract, the contract could be modified to include it. Determination by a contractor that CAP is improper becomes a very detailed issue, it even takes an agency in some cases a lot of research to determine if it could include CAP in a contract (appropriation law, ADP equipment approvals and certifications, etc.). Want to explore how the request you have gotten could be framed by the government as something proper within the contract requirements do both an internet and WIFCON search on "Contractor Acquired Property". In the end if the inquiry was not made by the Contracting Officer, or an authorized representative of the Contracting Office (example - Contracting Officers Representative) your question might be better posed to one or both of the individuals filling these authorized positions for your contract.
  22. No HUD appears to have concluded through the regulatory process to have the GTR be the go to person for both administration of contracts FAR and grants and cooperative agreements. 24 CFR 115.100 “Government Technical Representative (GTR) means the HUD staff person who is responsible for the technical administration of the FHAP grant, the evaluation of performance under the FHAP grant, the acceptance of technical reports or projects, the approval of payments, and other such specific responsibilities as may be stipulated in the FHAP grant.” I wonder how HUD adequately demonstrated how the change of COR to GTR is necessary to implementing the FAR specific to the needs within HUD FAR 1.302 -- Limitations. Agency acquisition regulations shall be limited to -- (a) Those necessary to implement FAR policies and procedures within the agency; and (b) Additional policies, procedures, solicitation provisions, or contract clauses that supplement the FAR to satisfy the specific needs of the agency. In the end HUD seems to admit that their use of GTR is inconsistent with the FAR but what the heck! Reference - see the definition of COTR in this document ----- http://afgecouncil222.com/B/8fac-cotrart5.pdf
  23. Bob - I may not be following correctly but these thoughts occurred to me as I continue to read this thread. 1. The determination of "detrimental effect" might include research of implied authority as in did a certain title other than COR lead to an implied authority issue. 2. I do wonder if clarification of actual authority through statute, regulation and case law has refined the view expressed in the 1927 decision noted and in effect circles back to the ideal that wouldn't it be nice if everyone called a person with contractual authority (with whatever stated limits) simply a "Contracting Officer". Whether such ideal would prevent conflicts arising or related to a contract is the question and it seems it hasn't to date so probably never will.
  24. "Rough Fish" is the more desirable term. Yet a fish by any other name is still a fish.
  25. Bob Can't say that I have swallowed your logic hook, line and sinker, but you have lured me in. As in most cases CARP require no license to engage with would your new acronym also require a certification or could they just swim on their own? GAR was a throw back (catch and release) so I am concerned that CARP may be looked at the same.