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Posts posted by MBrown

  1. Hmmm.

    On contract awards, my favorites were: using the CAGE code for the wrong awardee; including a price and nothing more in Section B of the award; and leaving the fill-ins blank in the liquidated damages clause.

    Also, there was the time that I just wanted to bang heads against the wall when a co-worker sent the Government's negotiation position to the contractor with the e-mail tag-line of "Can you give me a proposal that is priced within this range?"

  2. 19 minutes ago, Gwestbury said:

    The Contractor is responsible for total performance under this Contract, including selecting the specific approaches and methods to perform all work. For all Contract work within the control of the Contractor, the consequences of any adverse Contractor work performance; consequences of any regulatory actions in response to adverse Contractor work performance; and/or inability to accomplish the Contractor’s proposed technical approach shall not be a basis for an upward adjustment to the cost and/or award fee and/or the firm fixed price. (emphasis added).






    Gwestbury, is it possible that your customer is unrealistically seeking a firm fixed price contract instead of a cost reimbursable contract?

  3. I offer a few opinions on page limitations, font requirements, margins, etc.

    1.  They are used to limit the amount that the selection board and/or selection authority will have to read.  If you had reason to believe that you would receive 10, 50, or 100+ proposals, would you set page limits?

    2.  They are used to limit the amount of text from the solicitation that will be unnecessarily regurgitated in the proposal.  The selection board and/or selection authority might actually want proposals from firms that can get to the point, not waste time.

    3.  Limitations grant an excuse to the selection board and/or selection authority to disqualify/reject lower priced non-conforming proposals (whether fairly or selectively done).



  4. 10 hours ago, JAG said:

    You cannot be a lawyer without a license.  Performing legal services without a license is considered practicing law without a license, and illegal.  Secondly, lawyers are not permitted to engage in a business relationship with a non-lawyer where the services offered are legal services.  It's an ethics rule to prevent non-lawyers from influencing the legal advice provided to clients.  It's grounds for disbarment.


    I concur with napolik and Culham, in part.  In those jurisdiction of which I am aware, law firms (businesses) are not licensed to practice law.  Individuals are licensed.  That stated, if the business is violating that rules for the practice of law applicable to the State or Territory in which they operate, I would recommend advising the contracting officer of your allegation that the business cannot not responsibly perform.  I wouldn't recommend simply recognizing a done deal and moving on.

    Additionally, if you believe, or know, that improper conduct is occurring, have you considered reporting the conduct to appropriate prosecutor's office or disciplinary board for the Bar of the State in which the offending business is operating?  Look to your own status.  Might you have a duty to make such a report?

  5. On ‎8‎/‎6‎/‎2017 at 8:46 AM, C Culham said:

    Is the "free" really free.   By my experience free trials with regard to the Cloud in many cases imply some kind of monetary connection.   Something like you get $300 in value in using the trial or get $500 in credit if you extend the trial to a full subscription.  So is the latter case especially it seems a exchange of a promise that involves value.  


    On ‎8‎/‎4‎/‎2017 at 3:25 PM, Todd Davis said:

    From the limited information provided, it is not clear if this is a free trial period as part of a contract or not.  You might want to check out GAO Red Book, Chapter 6, Section C (The Antideficiency Act), 3 (Voluntary Services Prohibition) and see if that helps you.  

    Culham and Davis appear to hit the nail on the head.  May I also add that many "free" offers involve an automatic charge at the end of the "free" period (i.e., if you do not affirmatively cancel, they continue your subscription and bill you).  What happens at the end of your proposed trial period?  Under fiscal law, you should have positive legal authority that allows you to proceed.  If the services have any value, you may run afoul of impermissibly augmenting an appropriation by signing up for that "free trial".  I recommend you consult with your agency's fiscal law counsel.

  6. Recognize that "this is the way that we've always done it", may not be the right way.

    Recognize that statutes, regulations, policies and procedures will change.  Do not let the train leave you at the station.

    Recognize that mistakes will be made, but own your behavior.

    Take pride in your work product.

    Be willing to share what you learn.

  7. Based on your question, it appears you have some type of appropriation.  Do you have a statutory authorization to spend those funds on an award?  There is no authority to spend and appropriation without a specific authorization.  What agency are you with?  What color of funds do you have?  What does your agency's authorization act say you may do with those funds?

  8. For me, the issue is whether I'm dealing with an "offeror/bidder" or a "prospective supplier". Relative to the former, I try to avoid pre-award one-on-one dialogues to the maximum extent practicable in order to avoid creating unfair competitive advantages. An RFI process that provides the answer to all offerors/bidders is my way to go. On a post-award basis, I give as much as the FAR allows, whether a debriefing or a brief explanation.

    Relative to the prospective suppliers, I echo the sentiments expressed earlier. More often than not, the contact I receive is akin to "How do I get on your preferred vendor list?" I also get the name droppers with "I was speaking with BG Comeasiam and would like to meet with you to tell you how you can sole source to my company."

    For the serious inquiries where the prospect desires information on how to do business with the Government, I do my best to point them to helpful resources, such as SBA, PTACs, etc. Otherwise, I politely decline the requested sales meetings by explaining my need to avoid the appearance of favoritism.

  9. My question to the Wifcon: Where these questions too hard for someone working at this level?

    FAR Fetched: While I agree with Mr. Edwards that your choice of vernacular might have confused some of your interview audience, I do not believe they should have been considered too hard for the caliber of professional you were seeking. That said, the issue isn't completely private versus public sector mentality. I've known of several instances both inside and outside of Gov't service where the management candidate was lacking but had a track record of being the ______ that rises. Most recently, I had the opportunity to deal with a Gov't contracting office where the new unlimited warrant, supervisory contract specialist was a field grade officer with no DAWIA courses to their credit, let alone any certifications. So, I'm not surprised that your interview candidates may have been less than stellar.

  10. What is the statute that states a military (MILCON) construction contract cannot be awarded if the price is over 15% of the IGE?

    I would add that the Army National Guard has a regulation, NGR 420-10, on the issue of program validity, which unlike the USACE higher level review requirement, could halt a construction award where the amount exceeds the Government Cost Estimate. Section 5-1( b )(2) provides, in part, that the signed programming authorization remains valid if the project cost will not exceed 125% of the estimated cost AND programming is less than 2 years old.

    "All completed, signed NGB Form 420-Rs or DD Forms 1390/1391 remain valid only if the project does not exceed its USPFO approved scope or 125% of its estimated cost and if the form is less than two years old. In those cases, the form requires amendment, staffing, and approval as if it were a new project, before the project may continue."

  11. I think it would depend on the type of contract and the contract terms.

    Look at the GAO decision: In the Matter of: Funding of Maintenance Contract Extending Beyond Fiscal Year, B-259274 (May 22, 1996), also referenced in GAO Red Book, Vol. II, Ch 6. This is a case where the Air Force was held not to have violated ADA or bona fide need when it funded 4 out of 12 months of an option on a severable services contract (i.e., 8 months unfunded). The contract period of performance ran 1 Sep 1994 to 31 Aug 1995. First 4 months crossed fiscal years and used FY94 funds. Additionally, Air Force put language in contract to provide that government's obligation after December 31 was contingent on the availability of funds and required notice from the Contracting Officer that funds had become available and that contractor could continue work.

    With that Air Force case in mind, consider that an Option exercise under FAR 52.217-9 is typically unilateral. If you are intending to exercise your option for a lesser period than as stated in the contract, a bi-lateral modification of the option term might be warranted to avoid any claim potential.

    Additionally, are you subject to a full funding policy that you need to take into consideration?

  12. Outside of an acquisition following Brooks Act procedures (40 U.S.C. 1101-1104), is there a permissible method for contracting for service contractors to perform on-site engineering reviews, construction phase inspections, preparation &/or review of As-Built drawings, or similar services?

    I view these items as “services of an architectural or engineering nature, or incidental services, that members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services." FAR 2.101; 40 U.S.C 1102(2)(C ). Accordingly, it is my position that they must be procured by qualifications based selection under the Brooks Act, FAR 36.602-1 and applicable agency FAR supplements.

    That said, I’ve noted some single award Indefinite-Delivery/Indefinite-Quantity Contracts (IDIQs) for services (that it has been suggested I use) where “engineering technicians” and “design & construction project managers” are acquired for in-house/on-site support via IDIQ Task Orders. On making inquiries with the PCOs for these contracts, they have acknowledged to me that their IDIQs were either competed under FAR 15, or were direct awards under the 8(a) program. Under both scenarios, I am also of the understanding that specific selection criteria from FAR 36.6 were not utilized, even in the case of the FAR 15 procurement’s tradeoff analysis.

    Additionally, if engineering related services are acquired to provide on-site government support (but not through the statutory authorization of the Brooks Act), does the government convert an otherwise authorized service acquisition into a contract for personal services under FAR 37.104?

    Any thoughts would be appreciated.

  13. It sounds like people are confusing "obligation" with "availability" and "liquidation". Funds placed on a contract award are "obligated". Obligated funds on a contract that are paid to a contractor for specified performance (i.e., the purpose of the contract) are "liquidated". Obligated funds on a contract that have not been paid to a contractor for specified performance (i.e., unused, not yet invoiced, will not be invoiced, etc.) are "unliquidated". Under appropriations law, funds will generally expire for obligation at the end of the fiscal year concluding their period of availability for obligation (O&M = 1 yr; Procurement = 3 yrs; MILCON = 5 yrs; etc.). Unliquidated funds remaining on a contract after the conclusion of the funds' period of availability for obligation does not change their status from being "obligated" for a particular purpose. Funds that will not be liquidated for the purpose against which they were obligated (bona fide need of the original fiscal period of availability) cannot be reobligated for a new purpose arising after the fiscal period of availability.

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