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Everything posted by Pennybeth

  1. I am curious to hear reactions to the decision by the US Court of Federal Claims (No. 13-506C) in Amazon Web Services v. US and IBM, in which the court decided that the corrective action taken by the agency upon GAO recommendation was irrational because the GAO recommendation was irrational. I am particularly interested in knowing if you think there are things the agency could have done in its contract documentation, or in presenting its arguments to the GAO, to have brought the GAO to a decision in its favor under the original bid protest. Or is this a case where there is a difference of legal opinion between the GAO and the court that would have put the agency in the middle no matter what it did in its source selection process and documentation thereof. If the latter, it surely shows that source selection is a process fraught with peril for contracting officers.
  2. Hi Agency Specialist - I can only speak from my own experience, but it sounds likes we might be in the same chronological point in our careers. I would love to retire in 5 years, but will probably need to work for 8 more years (2 kids in their early 20s who are a bit adrift in the cold, hard economy out there). I worked for 20 years in the private sector and then switched to government 1102 work. I have been an 1102 for 12 years now and recently decided to switch to a lower graded position to reduce the stress in my life. I was a supervisor of GS-14 level contracting officers and am now the equivalent of a GS-14 Procurement Analyst working in the Policy and Training area. But, I work with wonderful colleagues and for a wonderful supervisor who have been supportive through the transition process. Also, the administrative side of being a supervisor has never been fun for me. I am much happier managing knowledge than managing people. And lucky me, I now get to delve into interesting contract questions, and give guidance on contracting law, policy and regulations (no sarcasm here, I really do love it). Right now, things are definitely more stressful than I like with the lapse in appropriations. But I can only hope that this will get resolved.
  3. I would be interested in hearing opinions about the pros and cons of moving into an acquisition policy job instead of an operational contracting job. What do you think are the skills, experiences and inclinations that would suit someone to either a policy job or an operational contracting job? I am in the last 10 years of my career (unless I hit the lottery, in case I don't need your answers anyway), and am considering moving into a policy job which is actually at a lower grade level than my current position, but would not result in any great financial disadvantage to me. I am not interested in climbing higher in the operational contracting hierarchy at this point in my career. Anyway, all thoughts welcome and there is obviously no right or wrong answer.
  4. I agree with you formerfed. I did not mean to unfairly blame the particular contracting officer in the case - I have no knowledge of any facts other than those contained in summary of the protest decision. But it struck a nerve. I sometimes think Contract Specialists/Contracting Officers check their common sense at the door when they come to work. But I freely admit that may be because they've had the common sense knocked out of them by political pressure from program offices or even (sadly) their own acquisition hierarchy. So, I guess what I want to say especially to young Contract Specialists/Contracting Officers is, keep asking those questions if something doesn't make sense, keep reading the law, regulations and policies, and if pressures force you to do something with which you disagree, do the best you can to be transparent in the file about the facts. And for goodness sake, at least fight hard to get the process properly followed and documented. May the force be with you . . .
  5. If we as contracting officers want to be treated as professionals rather than ignorant paper pushers, we should at least get the procedural steps right in an acquisition, such as publishing a timely synopsis and relying only on either 6.302-1 or 6.302-2 in issuing a sole source J&A rather than on both. There might be room to argue about whether a sole source bridge contract is truly justified under 6.302-1(ii) or is really just an instance of the failure of an agency to adequately plan, for instance. But to make mistakes like the contracting officer in this case makes the government look ridiculous.
  6. It can get even more interesting. My organization is not subject to FAR, but we do place orders against GSA contracts, which are subject to FAR. So, even though we as an organization are not subject to FAR, some of our contracting actions are. I would hope that looking at the RFP would help clarify the situation - shouldn't it reference FAR clauses if the procurement is subject to FAR, as well as other non-FAR clauses applicable to the entity that issued the RFP?
  7. Are you sure this was a firm fixed price level of effort contract, or was it a labor hour contract with an estimated number of hours required? If the work performed were commercial services under a labor hour contract containing clause 52.212-4 Alt I, Deviation 1 -- FEB 2007 (which is a clause included in the GSA TAPS schedule contracts), then payment would be made only for "direct labor hours performed" which would not include holidays or vacation hours.
  8. The posted stated that the "customer" who issued the BPA Call modification was The Administrative Office of the US Courts, so I could identify the actual contract being aware of this issue. There is a dispute about whether the contracting officer who issued the call attached the wage determination to the call. The current administering contracting officer received a letter from DOL requesting a copy of the applicable wage determination. Upon discovering that the contract file did not clearly indicate that the wage determination had been attached to the call, the contracting officer issued a modification incorporating the wage determination.
  9. I am afraid certain facts have been misstated or misunderstood by the original poster. The BPA referenced is a BPA against a Federal Supply Schedule Contract. The BPA and all BPA calls issued against it are subject to the clauses contained in the applicable GSA Federal Supply Schedule Contract. The GSA Federal Supply Schedule Contract contains both clause 52.222-41 and Clause 52.222-43. There was no audit indicating that the SCA did not apply. I think this is an important reminder that the "contract" include not only the provisions printed as part of the BPA or BPA call, but also the clauses incorporated by reference such as the GSA contract clauses in this case.
  10. I most respectfully disagree with your legal analysis. An IDIQ contract with a minimum guarantee is a contract under which the parties agree that future orders may be placed at specified pricing under agreed upon terms and conditions. If an IDIQ contract includes the right of the government to unilaterally exercise options to extend the ordering period, the right to exercise those options is part of the initial contract supported by the minimum guarantee consideration. There is no need to to provide additional consideration at the time of exercise of any option to extend the ordering period. With respect to any orders placed, consideration for each order is the same as with any ordinary contract - if you perform these services or provide these products (consideration from vendor), I will pay you this money (consideration from the government). The reason a minimum amount guarantee is required in connection with the initial IDIQ contract is that without that, there is only a conditional promise to pay which is not adequate consideration. A minimum guarantee solves that problem by making the government promise to pay the minimum amount unconditional - even if the vendor is never actually required by the government to perform any services or provide any supplies, the government must pay the minimum amount guaranteed to the vendor. Because the government generally doesn't like pay for nothing (ie, make a minimum payment but receive no services or supplies), some government agencies have a policy of placing an order for the minimum quantity at the same time as or shortly after issuing an IDIQ. Then the "consideration" for the entire IDIQ contract becomes merged with the "consideration" paid for the initial quantity of services or supplies. Nevertheless, as a legal matter, the promise of the vendor to supply services and supplies in accordance with the IDIQ is in and of itself sufficient "consideration" from a legal perspective to balance the government's promise to pay the minimum amount without the vendor ever actually having to supply any services or supplies. I haven't stated this elegantly, but I hope it might persuade you to take another look at how you are analyzing the legal issues.
  11. I have read with interest the GAO denial on 12/14/2011 of the protest filed by HP Enterprise Services and the subsequent action by the Court of Federal Claims to essentially reverse that GAO decision (granting the plaintiff a judgment on the record and enjoining the Air Force from proceeding with the award of a TO under a GSA schedule contract). At issue was the statement by the Air Force, in response to a contractor's question, that "In order to be eligible for award the Contractor's GSA Schedule contract has to still be in an active period by the time the option to extend the term of the proposed contract Task Order will be exercised." [can we all agree this quote is a great sample of how not write an answer to a contractor question? I especially love the invention of the new term "an active period" by the person who answered the question - clear as mud] Two questions keep rolling around in my mind and would love to hear views from the forum members: (1) The Court of Federal Claims found there were several reasonable interpretations of the murky language quoted in the first paragraph of this post - one reasonable interpretation by the government, one reasonable interpretation by the contractor and one unreasonable interpretation by the contractor. I am pretty sure I understand the reasonable interpretation proposed by the government (if the GSA contract was scheduled to expire, and the contractor didn't have a signed mod in hand from the GSA exercising the option to extend the contract, then the contractor didn't meet the requirement to show before award it would have an "active" contract as of the date that the option was likely to be exercised). What I am not getting is the distinction the court is making between the plaintiff's two possible interpretations of the language, one of which the court finds unreasonable and one which the courts finds reasonable. The unreasonable interpretation appears to be the view that all the language requires is for the contractor to show that its GSA FSS contract has an option that, if exercised by GSA, would extend its contract's period of performance to cover the expected date of option exercise. The court states that interpretation is too lenient to be reasonable. The plaintiff's reasonable interpretation appears to be that, consistent with a cite by the court to the decision in Knoll, Inc. (B294986.3), "FSS contracts are valid for purposes of award of a contract utilizing a GSA Schedule as long as there are option periods that can be exercised that would cover the contract award period, and there is no indication that the FSS contract option will not be exercised." Is the distinction between these two different interpretations that, in the second case, there is a requirement that there be no indication that the option period of the offeror's GSA Schedule would not be exercised? How do you prove there is no indication that the option period of the offeror's GSA Schedule would not be exercised? Would the government need to show positive evidence that the GSA had made a determination not to exercise the option? Would a statement from GSA that it might or might not exercise the option be sufficient? Or is there more to the second interpretation than I am seeing? Is this interpretation really that much less lenient that the so-called "lenient interpretation" presented by the plaintiff? (2) GAO took the view that there was nothing wrong with the Air Force requiring that the contractor have an "active" GSA contract at the time that the option would be exercised. And, although GAO agrees that the language used was awkwardly drafted, the GAO found the RFQ required the the contractor demonstrate, before award, that it would have such an "active" contract at the time of option exercise [proving a future event???]. The COFC doesn't address this issue, having made its decision based on the fact that the defendant had a reasonable interpretation of the language that wouldn't require affirmatively demonstrating that the contract would be "active". SO, HERE IS MY QUESTION - what legitimate purpose is served by excluding from the competition contractors whose contracts have an expiration date after the award date of the TO, but before the expected date of exercise of a TO option? Is there still a defensible argument that the expiration of a GSA FSS Contract will prevent exercise of options included in Task Orders that were issued under that GSA FSS Contract?
  12. Probably more of a "quote of the day" than a "quote of the month," but the following recommendation from the GAO's February 2012 report on DOD Financial Management resonated with me: Direct the Secretary of the Air Force to improve training for DEAMS users by providing training on actual job processes in a manner that allows users to understand how the new processes support their job responsibilities and the work they are expected to perform. The quote resonates with me not because of any particular concern about Air Force training nor training specifically about DEAMS, but that so much government training I have attended is not sufficiently related to actual work situations and well-tailored to the group taking the training. I would take the time and money that is put into "flavor of the month" team building/process improvement/motivational exercises and focus on honing job skills.
  13. Hi Govt2310. Just want to put in my two cents about your question in case it helps anyone to understand the issue. Legislation enacted by Congress is initially contained in the Statutes at Large. These are compilations of enacted statutes organized by date of enactment. Recodification is the process of taking the laws and arranging them by subject matter and incorporating them into the United States Code (U.S.C.). During recodification there can be amendments and corrections to remove ambiguities, contradictions, and other imperfections, but none of these changes are intended to make any substantive change to the law, as Vern indicates above. Once a recodification is enacted, it transforms the enacted title into "positive law", which means that the appropriate section of the U.S.C. can be cited instead of having to refer back to the Statutes at Large as evidence of the law. Be aware that the U.S.C. is different than the U.S. Code of Federal Regulations. The U.S. Code of Federal Regulations is the compilation of regulations adopted by various governmental entities that implement provisions of statutes. So, U.S.C. refers to statutes, and CFR refers to regulations.The FAR is part of the CFR. The CDA (Contract Disputes Act) is a statute (now recodified in the U.S.C.) which is referenced in the FAR.
  14. I am now with a non-FAR activity, so I should be more careful when I respond so as not to mislead folks. Our regulations allow for a a funded "Blanket Delivery Order" to be issued against a BPA. That is what I was thinking of, but it is not really a "funded BPA" so it was misleading for me to say that. And I don't even know if FAR contemplates issuance of these type of "Blanket Delivery Orders" so I withdraw that part of my suggestion. Thanks Don!
  15. It appears that what you actually propose is to place an order against a GSA schedule contract, rather than issue a purchase order or new contract, but I'm not quite clear on that point. If what you are trying to accomplish is to get better pricing for a GSA order by grouping your annual purchases of a service, you might consider issuing a BPA against the schedule contract and either funding each individual BPA call (in which case you wouldn't end up with excess funds) or issuing a funded BPA, and then deobligating excess funding when you get to the end of the year. Reading into your question, if there is a possibility that the estimated services won't actually be required, then there must be some mechanism in place to specify when each individual service instance will occur - maybe similar to placing an order so maybe actually issuing BPA calls wouldn't be a significant departure from your current way of doing business? If you do place one funded lump-sum order, you would need to negotiate a bilateral modification to the order should the Government not need the ordered quantity.
  16. Sorry to have been unclear. My statement was merely anecdotal information from one contracting officer to another. I have often found it interesting (and sometimes amusing, or even horrifying) to hear what other contracting offices or contracting officers are doing. But I in no way meant to say that because I had or had not seen something was indicative in any way as to what was right, proper or legal. But, you have now got me thinking about why this topic is of such interest to me. I think what I would really like to know is why the SF-30 in block 13 C asks one to cite the authority for entering into a supplemental agreement when the standard forms for documenting a contract (such as the SF-26) do not require a cite to the authority to contract? Why would it serve a purpose to cite on an SF-30 the proviision of the U.S. Code granting my activity contracting authority when it presumably doesn't serve a purpose on an SF-26? Maybe I should just cite my contracting officer warrant? That actually might be useful, as [brace yourself, I'm about to make an anecdotal observation about what I have personally experienced, and intend in no way to assert such observation as a universal truth] I have never been asked by a contractor to see my contracting warrant. And it can be risky for a contractor to merely assume that the government official with whom it is dealing has actual authority to contract, so citing my warrant could actually serve a useful purpose. Thank you Vern, for your passionate policing of these discussions by questioning faulty logic and inane observations such as my post.
  17. I'm now at one of those funny "non-FAR" governmental entities, so we can do lots of strange things here. But to put in my two cents, if I am modifying a contract by exercising an option, I cite the option clause as the "authority," if I am extending for up to six months due to the clause allowing for extension of services, I cite that clause, and if it is a modification pursuant to the applicable changes clause, I cite that. But I also use "mutual agreement of the parties" quite frequently. What that one means to me is first, the SF-30 better also have the box marked that requires the contractor's signature because mutual agreement of the parties is by definition a bilateral modification (yes, I've actually seen forms where the "authority" cited is "mutual agreement of the parties" and that box isn't checked and there is no contractor signature). Secondly, it also means that I make sure that I document the file to show that I have taken all steps necessary to entering into this new agreement (such as any necessary sole source justification) since this is a new agreement between the parties, it has jus taken the form of a modification to the existing agreement instead of issuing a whole new agreement. I guess technically the "authority" for those types of mods is the same authority that a governmental entity has to enter into contracts in the first place, but I don't think I've ever seen anyone actually put on an SF-30 a reference to the underlying constitutional or statutory authority to contract.
  18. I know, this is an old post and I'm sure your panel of judges already awarded the all expenses paid cruise award for the best answer, but I got a laugh out o fthe following (my nominated sentence is the last sentence contained in the quote below): (a) Definitions. As used in this clause— “Inverted domestic corporation” means a foreign incorporated entity which is treated as an inverted domestic corporation under 6 U.S.C. 395(, i.e., a corporation that used to be incorporated in the United States, or used to be a partnership in the United States, but now is incorporated in a foreign country, or is a subsidiary whose parent corporation is incorporated in a foreign country, that meets the criteria specified in 6 U.S.C. 395(, applied in accordance with the rules and definitions of 6 U.S.C. 395©. An inverted domestic corporation as herein defined does not meet the definition of an inverted domestic corporation as defined by the Internal Revenue Code at 26 U.S.C. 7874.
  19. Possibly a bit off topic, but this discussion leads me to one of my pet peeves. I really find it sloppy when contracting officers (and I am one myself) tell someone that something is "illegal" when what they mean is that a particular action is against policy or ill advised for business reasons. I think we as contracting officers have a responsibility to be very precise about the language we use when we say something can't be done. Is it illegal? Cite the statute if so. Is is prohibited by a regulation? Again, cite the regulation. If it's against policy, cite the policy. There are times when something is not illegal, not against regulation and not even against policy, but a contracting officer has discretion not to do it. In those cases we have a responsibility to make it plain that we as contracting officers have made a determination not to take the action (and it always helps to give the reasoning for our decision so as not to be accused of acting capriciously.) But, I have to say, I can understand why a contracting officer making an award against a GSA schedule contract before the recent changes were made to FAR 8.405-5, would have said that an order award couldn't be "set aside" for small business. They did not say that set asides were "not required" or "discretionary" but actually stated that orders could not be set aside. I don't recall at this point whether they stated that FAR prohibited such a thing or whether it was simply that the GSA schedule contract ordering process did not provide for the possibility of set asides. I can see how even if it was an ordering procedure and not a regulation that "prohibited" such set asides, that could be characterized as being a "prohibition." Not prohibited by law, not prohibited by regulation, but prohibited due to the ordering processes applicable to GSA schedule contracts. On the third hand, if the contracting officer really meant that set asides are not mandated and s/he had made a reasoned decision to therefore not give special consideration to or set aside this requirement for small businesses, that is what he or she should have said. Not that set asides were prohibited. Saying it was prohibited is a "it is out of my hands" response rather than "I had discretion and I exercised my discretion in the way that I determined to be appropriate" response.
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