Oyster

OK, I humbly change my answer to yes. It fits the definition of a "claim."

Sorry Don.

Frog2: I thought you were referring to a published decision. I don't recommend sending any more info on this without your servicing attorney's knowledge/permission. The last para is GAO direction not to release it. Release may violate the protective order.

Yes. The rule is irrelevant to the definition.

Frog - Can you cut and paste the actual language of the GAO recommendation from the decision? That would likely help others answer your questions.

Typo in last part: "In other words, I'm to know curious..." should change to "curious to know." sorry

Almond2020 et. al.: Just to throw another log on this fire - is Almond2020's experience increasingly typical? That is, setting aside the many irritations that attach to almost all federal employees' jobs, (i.e. sequestration, pay freezes, negative societal attitudes towards goverment, overworked, underpaid, etc.) is the 1102 world getting better, worse, or about the same? If worse, why? If better, why? I know individual experiences differ, but I wonder what those with at least 15+ years of experience as 1102s would say - from a 50,000 foot type of perspective. I doubt there was ever a truly "golden era" of federal contracting: when leadership understood the legal and time restraints involved, when customers were responsive and supportive, when legal and policy reviews were always on time and helpful, when there was adequate resources and personnel for effective contract oversight, when contractors were always above board, when there was time for thoughtful analysis of they type that Almond2020 admirably seeks, etc. (Chanelling Edith Bunker at the piano). In other words, I'm to know curious what has fundamentally changed from previous eras that is (apparently) making the 1102's life more miserable (or better). Thoughts? Comments?

here_2_help: Thank you for your insightful post. I appreciate it. Good info.

Perhaps this should be a new discussion thread, but I noticed that there is a March 7, 2013 DOD IG Report on DCAA. It found that DCAA failed to use "professional judgment" in 74% of the sample audits that the DOD IG reviewed. I've had limited exposure to DCAA, but that experience was negative - in line with the report. I know that it is no secret that DCAA has pervasive problems, but can anyone shed some light on why they are so bad exactly? I'm assuming that there is a confluence of contributing factors, but its surprising to me that they are allowed to continue on without a major restructuring of some sort. Thoughts? Comments?

Brian: I agree with Vern. You have to take a look at the Axiom case: http://www.wifcon.com/fedcir/08-5072.pdf There the COFC judge got it wrong at every turn. The GAO was correct. The CAFC opinion is over two years after the GAO protest. But for the COFC's involvment (where the Judge made a series of questionable judgment calls - both substantive and procedural) the case would have been decided correctly almost two years earlier. I just disagree with you. This is far too much "accountability." The Government needs to run the railroad - and the current protest system is no way to run it.

BrianR - Good example. I think we need to re-visit the wisdom of the 1940's Supreme Court on this topic. As the article cited above points out, it was once inconceivable that the Government's purchasing decisions would be subject to judicial review. That is, the 1940 Supreme Court case - Perkins v. Lukens Steel (310 U.S. 113, 1940) - (one of the earlies bid protest-type of cases) - warned that such a system would result in "confusion and disorder." Further they explained that: "The bare suggestion of [judicial review of Government purchasing decisions], with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained.” Although that is no longer good law, I think they were wise to warn of this confusion and disorder - which is apparently affecting your business or contracting activity. Again, along with Vern, having the GAO as the sole protest forum makes the most sense - one forum/one decision/swift 100 day process - period! Its clearly time for reform - but that will require consensus building among the business community. I don't think there is anyone in Government that thinks the current system makes a lot of sense as evidenced by the DOD legislative proposal. I think small businesses especially should contact lobbying groups such as the PSC and ask them to think through this issue a little more intelligently.

Vern: I agree with you. The COFC is an unwieldy protest forum that adds nothing of value to the protest system. I, like you, have the utmost respect for the COFC and the COFC judges. Its nothing against them personally or their decisions - its just not well suited as a protest forum. Sadly, as noted in my comments above, if DOD cannot even get Congress to pass the sensible and rather modest legislative proposal referenced above, it is highly unlikely that Congress will take the more drastic step of eliminating the COFC as a protest forum. I always appreciate your comments Vern.

Just to add to my previous comment, the text of the DOD proposal can be found here: http://www.dod.mil/dodgc/olc/docs/25April2012Proposals.pdf (You have to click on the PDF entitled, "Timeliness Rules For Filing Bid Protests.pdf," on the left side of the screen.) It is virtually verbatim from the proposed legislation set out in the Saunders and Butler article. The morale of the story (at least at this point) appears to be that regardless of the merit of any proposed legislation it will not move forward without industry support.

Excellent discussion. If anyone is interested in reading the full text of the Saunders and Butler article on this topic, it can be found here: http://www.pubklaw.com/papers/clause/clause092010.pdf (starting on page 7). It was originally published in the ABA's Public Contract Law Journal and then republished (with permission) in the Board of Contract Appeals Bar Association's (BCABA) publication entitled "The Clause." It was selected as for BCABA's 2010 Writing Award. The legislation proposed in the article later became a DOD legislative proposal for the FY13 NDAA that was quickly shot down by industry. See http://www.mckennalong.com/news-listing-3309.html See PSC's poorly-reasoned objections here: http://www.pscouncil.org/News2/NewsReleases/2012/PSC__DoD_Bid_Protest_Proposal_Denies_Due_Process.aspx The odd thing is that the current system that allows for two bites at the protest apple is not good for "industry" either. Isn't there another contractor on the receiving end of this needless and zany system of duplicative protest jurisdiction? In other words, why is industry against this? (I know, it is good for the lawyers in the system ... maybe that's the real "industry" fighting this proposal).

GeoJeff: The only agency that has apparently addressed this issue directly in their FAR supplement is the VA. The VA FAR Supplement's implementing language on this is found at section 836.209, "Construction contracts with architect-engineer firms." That provision flatly states that "[t]his section does not apply to design-build contracts, as defined at FAR 36.102." I could not find any other agency FAR supplement that directly addresses this issue.

... I have no idea how that emoticon got in there ... it is FAR 1.304((2).

It is impossible for me to follow the logic of those who are contesting GeoJeff's position. Essentially they would have to argue that a provision within FAR Subpart 36.2 applies to FAR Subpart 36.3 despite the fact that nothing in FAR Subpart 36.3 references 36.209, and, to do so would lead to a clearly absurd result. The argument seems even more odd in that they are attempting to apply an agency acquisition regulation to the contracting officer based on this misreading of the FAR. In my view, this would violate FAR 1.304((2) which states, "Agency acquisition regulations shall not ... conflict or be inconsistent with FAR content." I don't see how anyone could argue that applying DIAR 1436.209 to a design build contract is anything other than inconsistent with the FAR. As to your question regarding how to proceed, I don't think anyone can answer that for you. You would have to get this issue in front of someone who understands it and can get the agency back on the right track. Good luck.

Cajuncharlie: Try it this way: (1) go to www.jagcnet.army.mil (2) On the right hand side of that webpage, there are some links, scroll down to the link called "TJAG Legal Center and School (TJAGLCS)" and click on it. (3) That will bring up a new webpage. Again look at the tabs to the right and click on "TJAGLCS Publications" (Under the "Publications" Tab) (4) On the new page that comes up, click on "By Category" on the left side. (5) Click on "Next Page" at the top. (6) Click on the two deskbooks, called "2010 Contract Attorney Deskbook" (there are two of them). ... Let me know if that works. Thanks, O

I just realized that the link will not take you immediately to the contract law deskbook. Here's what you do: (1) Click on "By Category" which is on the left side of the webpage. (2) Click on "Next Page" link which is at the top. (3) Click on "2010 Contract Attorney Deskbook Volume 1 (Emily Colman 09/29/2010)" and "2010 Contract Attorney Deskbook Volume 2 (Emily Colman 09/29/2010)." ... the analytical framework for this particular issue is in Volume 2, but it obviously covers a very wide range of contract issues.

Cajuncharlie is correct. You have provided only one "red flag" that may indicate that the mod is out of scope. The best explanation of the scope issue that I am aware of is set out in the Army JAG School's Contract Law Outline (Chapter 21, Vol 2). It can be accessed here: https://www.jagcnet.army.mil/JAGCNETPortals...aglcsdoclib.nsf I recommend that you (1) read pages "21-6" through "21-18" of the outline carefully; (2) examine the authorities that are cited therein; and then (3) close the loop by getting a legal concurrence from your assigned counsel that it is either in or out of scope. Also, to the WIFCON Community more generally, the Army JAG School's Contract Law Outline is an outstanding resource for contracting professionals. It is publicly available (and there is no password or anything needed). Here's the link: https://www.jagcnet.army.mil/JAGCNETPortals...aglcsdoclib.nsf The ABA takes this exact outline, binds it, and sells it for about $100. Kind of wasteful, because it is free online. A lot of contracting people aren't aware of it, which I think is unfortunate. I would like to see the legal and contracting community tied in more tightly to make everyone's life easier. If anyone has difficulty accessing it, let me know. I recommend that you save it to your desktop or somewhere else where it is easily accessible to you. Cheers!

GOVCO: You're welcome. In my experience, fiscal law issues are far more frustrating than contract law issues because the rules are less clear and the guidance (statutory, regulatory and policies) are less helpful. Further, unlike contract law issues, there are less decisions on point as compared with contract law's GAO, BCAs, COFC, CAFC opinions. The Comptroller General provides some guidance, but in my opinion, not enough.

I don't understand the question. Could you rephrase/clarify?

GOVCO: BTW, the Red Book is free online at GAO's website. Volume I can be found here: http://www.gao.gov/special.pubs/d04261sp.pdf Good luck.

GOVCO: Please understand, I wasn't trying to be flippant. The answer to your question cannot be answered by "regulations," generally. Rather, assuming that there is nothing that specifically addresses this in the language of whatever appropriation act provides these funds to your agency, your counsel will have to make a determination regarding whethor or not this is an appropriate use of your appropriated funds. (I presume this comes from your agency's equivalent of "operations and maintenance" appropriation that is found within DOD). Absent express statutory language allowing, or prohibiting, the use of your funds for this purpose, the analysis typically defaults to what is known as the GAO-created "necessary expense doctrine." In this regard, I recommend that you look at the GAO Red Book ("Principles of Federal Appropriation Law"), Volume I, Chapter 4. The explanation of the "necessary expense doctrine" is set out at Subsection "B" starting on page 4-19. I think that will allow you to discuss this issue with greater precision with your fiscal law attorney.

I don't think anyone can answer that question without understanding the precise appropriation that is being proposed to fund it. Your agency's fiscal law attorney(s) should be able to answer this question for you.