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shikakenin

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  1. @Vern Edwards or anyone else. Any status on the appeal? All I can find is this: https://dockets.justia.com/docket/circuit-courts/cafc/21-1686 with the following last action. April 23, 2021 Filing 13 **TEXT ONLY** ORDER granting motion to extend time to file brief [ # 12 ] filed by Appellant US. The opening brief is due 06/25/2021. Service as of this date by the Clerk of Court. This order has been issued without an attached document and is official and binding. [770846] [EKD] [Entered: 04/23/2021 12:40 PM]
  2. Sorry for being so late to the party. I like all the arguments and if they don't boot it for jurisdiction Tolliver just may prevail given the favorable long standing statutory, regulatory and shear raw power of the small business constituency. First I must go on a quick tangent about COFC jurisdiction. One of my fave excerpts from GUAM INDUSTRIAL SERVICES, INC., * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * v. * * CABRAS MARINE CORP., * * Defendant-Intervenor. No. 15-588 C Filed: August 3, 2015 top of page 10: "But, FASA provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order,” except in two circumstances not relevant to this case. 41 U.S.C. § 4106(f)(1). ...We acknowledge that this statute is somewhat unusual in that it effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order—perhaps even in the event of an agency’s egregious, or even criminal conduct. Yet Congress’s intent to ban protests on the issuance of task orders is clear from FASA’s unambiguous language..." Will the Federal Circuit boot Tolliver on jurisdictional grounds? I sure hope not. No fun in that! Plus, Tolliver is "Mingled with MAS" so I doubt it gets the boot (COFC certainly DOES have jurisdiction to hear MAS matters). While I generally favor a court of competent jurisdiction over GAO, I like this solid piece of logical argument from Itility. : "Finally, if we adopted ITility’s and SBA’s interpretation that a Rule of Two analysis is required before an agency selects the IDIQ contract vehicle, it is not apparent how an agency can ever get “inside” the IDIQ and exercise the discretion afforded by 15 U.S.C. § 644(r) in connection with the issuance of an order. To this point, if the Rule of Two is satisfied, a contracting officer would be required to set aside the contract for small businesses. Alternatively, if the Rule of Two is not satisfied, the contracting officer would not need the discretion established by § 644(r) and the FAR because there would not be two small businesses capable of performing the order. Thus, SBA’s and ITility’s arguments are not actually proposing a basis on which to distinguish Edmond Scientific, but, rather, would require us to overturn the decision and adopt the parties’ position that the grant of discretion in the Jobs Act only provided an exception to the applicable fair opportunity requirements (which we reject for the reasons set forth above). Therefore, for the reasons above, we reject SBA’s and ITility’s efforts to distinguish Edmond Scientific." My Translation: Adopting Tolliver would render 15 USC 644(r) SQUATLESS (would not mean squat, like EVER, would be completely WORTHLESS). Additionally, adopting Tolliver would mean the FAR council erred in it's preamble to Federal Acquisition Regulation; Set-Asides Under Multiple-Award Contracts when replying to a comment taking the position that 15 USC 644(r) is SQUATLESS. Comment: Several respondents stated that because the court in [Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016)] held that a task order was a contract, “contract” as written in 15 U.S.C. 644(j) includes task orders issued from multiple-award contracts, making order set-asides on multiple-award contracts mandatory not discretionary when applying the “rule of two.” . . . Response: The “rule of two” described in Kingdomware refers to the [Veterans Affairs (VA)] statute, 38 U.S.C. 8127, not a requirement in the Small Business Act. The Kingdomware decision is silent on the construction of the Small Business Act. The VA statute and the Small Business Act are written differently, with the former statute applying only to acquisitions of the [VA]. The VA statute only speaks to contracts and is silent on the handling of orders. Because of this silence, the Court concluded that the mandate applicable to contracts also applied to orders, since orders have the legal effect of contracts. By contrast, the Small Business Act has separate and distinct provisions addressing contracts and orders and addresses each in a different manner. Section 1331 of the Jobs Act (15 U.S.C. 644(r)) addresses order set-asides and makes the application of the “rule of two” discretionary for orders placed under multiple-award contracts. 15 U.S.C. 644(j) applies to contracts and mandates application of the “rule of two” for contracts valued at the simplified acquisition threshold or less. 15 U.S.C 644(r) is specific in that it only applies to multiple-award contracts. Legislative history demonstrates that prior to 15 U.S.C. 644(r), there was a mixed record of small business participation on multiple-award contracts. Congress was clear in section 1331 of the Jobs Act that under a multiple-award contract, agencies may, at their discretion . . . conduct a set-aside of orders under a multiple-award contract.... While I covet GAO's position in Itility (I LOATHE being told what to do), if I were to wager, I would bet on Tolliver prevailing. Why? The "Rule of Two" is like Sauron's Ring in Lord of the Rings. One Ring to rule them all, One Ring to find them, One Ring to bring them all and in the darkness bind them. Not in the evil sense (Small business is the bright soul of America) but in its power. The Rule of Two has been around a long time. 15 USC 644(r) is akin to a little P-ant of a NEWB in comparison. However, I find myself stuck in a conundrum. That NEWB has been extremely successful under MAS. In fact, based on that success, SBA has EXEMPTED MAS from various requirements. For example, see this preamble in a recent SBA final rule: Because discretionary set-asides under the FSS programs have proven effective in making awards to small business under the program and SBA did not want to add unnecessary burdens to the program that might discourage the use of set-asides, the proposed rule provided that, except for orders or Blanket Purchase Agreements issued under any FSS contract, if an order under an unrestricted MAC is set-aside exclusively for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business), a concern must recertify its size status and qualify as such at the time it submits its initial offer, which includes price, for the particular order. My final comment. Interesting how SBA covets the NEWB in the above pre-amble but squishes that same P-ant in Itilty and Tolliver.
  3. See http://smallgovcon.com/statutes-and-regulations/say-what-sba-says-the-runway-extension-act-doesnt-apply-to-sba/ Interesting article on the topic.
  4. Sorry. Posted too quick. In the "interesting scenario" above the first tier subs (in Prime/sub CTA) and JV team members (not the JV itself) has the required experience.
  5. Well said Freyr. Interesting Scenario: An all small business CTA Prime/Sub or JV submits an offer to the Professional Services Schedule when the prime (single entity with subs or JV itself) has zero experience. The solicitation requires the prime to have Two Years of corporate experience as a go/no go factor. The offer is highly likely to be rejected. Assume the Offeror is smart enough to estimate their annual sales at 125K in their offer (125K X 20 years=.$2.5M which reaches GSA's Substantial Bundling Threshold FAR 7.107-4(a)(1)(iii) thereby invoking 15 USC 644(q)(1)), they may be able to protest and win. Such a case would be an entertaining read indeed.
  6. Freyr. Thanks for the response. Sorry if I was not clear in my Qs. Was not asking if JV is prime. Know that. Was asking in the statute if a "Prime" in a FAR 9.601(2) prime/sub CTA is being treated the same as the "JV itself" in a FAR 9.601(1) JV CTA. If so, then a Prime in a FAR 9.601(2) CTA with ZERO experience (like a JV itself with Zero experience, since the JV itself is the Prime in a FAR 9.601(1) CTA) can submit an offer using only the experience of the first tier subs. The statute makes pragmatic sense for JVs. Requiring experience from the JV itself is challenging since the JV itself is generally not long term and now must be "un-populated." However, it makes no sense to me that a "Prime" in a FAR 9.601(2) CTA be given the same "needs zero experience" privilege as the "JV itself." Thanks so much for B-405365, Valor Construction Management, LLC, October 24, 2011. However, that case was prior to the change in statute See PUBLIC LAW 114–92—NOV. 25, 2015 look to top of page (around page 209) 129 STAT. 933. Be interesting to see how GAO would rule on B-405365, Valor Construction Management, LLC, October 24, 2011 today.
  7. See Ekagra Partners, LLC B-408685.18: Feb 15, 2019 which is related but does not answer your Q. Here is my beef with the interpretation that 15 USC 644(q)(1)(B)'s "(B) Teams When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors for any multiple award contract above the substantial bundling threshold of the Federal agency, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor." is equal to "(C) Joint ventures When evaluating an offer of a joint venture of small business concerns for any multiple award contract above the substantial bundling threshold of the Federal agency, if the joint venture does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture." When I say "equal to" I mean that the "Prime" in (B) is treated the same as the "JV Itself" in (C). In other words, the prime need no experience as "...the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor..." See bold underlined difference. I have three questions: 1. Do you believe the "prime" in (B) is analogous to the "JV itself" in (C)? If so, why? 2. If the "prime" in (B) was meant to be analogous to the "JV itself" in (C) then why do you believe it is not written to have parity with (C) to include the same bold underline text like this? (B) Teams When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors for any multiple award contract above the substantial bundling threshold of the Federal agency, if the prime does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor. 3. Do you believe that a solicitation subject to 15 USC 644(q)(1)(B) could mandate the "Prime" have demonstrated at least one experience project? Why or Why not?
  8. Vern, Obviously I was referring to FAR 16.505. Otherwise my topic would have read "You cannot issue a BPA against a BPA." I didn't think I needed to explain it to you. Regardless, I speculate GAO would rule the same if one were to issue an ID/IQ order instrument against an established FAR 8.405-3 multiple award BPA. And your answer for issuing an ID/IQ order instrument under FAR 16.505 is to simply stay under the $10M protest threshold knowing the practice would not withstand one. Brilliant. Too bad FAR 8.4 orders cannot partake in the same GAO protest pass. The GSA FSS program could enjoy issuing BPA orders under BPAs.
  9. While Vern Edwards disagreed with my bold assertion http://www.wifcon.com/discussion/index.php?/topic/2516-delivery-order-against-a-gsa-bpa/ (see post #11), looks like GAO agrees with me: B-411699,B-411796, Harris IT Services Corporation, October 2, 2015 http://www.gao.gov/products/B-411699,B-411796 My fave from the referenced Post Vern's Post # 15 "As for your protest speculation, who cares? I can come up with solutions to all of your concerns while making coffee in the morning half asleep. What do you think procurement is -- rocket science?" Well, apparently the FBI should have cared. Perhaps they should have consulted with a Rocket Scientist. Kudos to them for trying. I AM a fan of such innovation, however, as I speculated, such an order instrument would not withstand a protest and indeed it did not.
  10. No, I do not believe the rules are too hard. Generally, I speculate it is policy, legal and COs accustomed to operating within FAR 15 who make it hard. I have seen where people lack reverence for the flexibility which exists within the gray. Not saying FAR 15 is black and white, but certainly more so than FAR 8.4. I have seen where it appears policy and legal don't want to afford COs the autonomy to operate fully within FAR 1.102(d) and generally don't like "gray" as that means giving COs more judgement power. The only piece of FSS that is too hard is FAR 8.402(f). My only wish is that it be re-written in such a way to afford it the same flexibility as any other IDIQ contract. Reference FAR 16.505 ( b )(3) Pricing Orders. Perhaps if FAR 8.402(f) were re-written as follows, then the FSS program would truly be compatible (ease of use wise to accommodate a total solution) to the breath of fresh air afforded by the likes of the un-priced OASIS (whose ceiling rates are ONLY for sole source T&M orders). REVISE FAR 8.402(f) TO READ: (f) For administrative convenience, an ordering activity contracting officer may add items or services not priced on the Federal Supply Schedule to a Federal Supply Schedule blanket purchase agreement (BPA) or an individual task or delivery order only if-- (1) The items or services are integral to and in support of the primary Federal Supply Schedule priced items/services being acquired under the Order; (2) The ordering activity contracting officer has determined the prices for the items or services not priced on the Federal Supply Schedule are fair and reasonable; (3) The items or services are clearly labeled on the order as items not priced on the Federal Supply Schedule.
  11. Wow, that's helpful. So what you are really interested in is ridicule. You did complete your mission. Nice work. I am sure you will respond with more of the same. That seems to make you feel better, and it is entertaining. I am happy I could assist!
  12. Ok, enlighten us with your solution to the fair opportunity problem.
  13. Vern, Pretend for a moment that the phrase “A BPA against a BPA or an ID/IQ against an ID/IQ” is God. Now imagine that I said “There is no such thing as God. “ Prove to me that I am wrong. You cannot. Nor can I prove that I am right. Now back to the issue. You are correct. There is no explicit prohibition I am aware of against issuing a BPA against a BPA or an ID/IQ against an ID/IQ. There is also no prohibition in the FAR against me stating that a Chipmunk is in fact Cinderblock. Does the absence of explicit prohibition of an action justify its implementation? I speculate that if a CO competed and issued a BPA as an order instrument against an existing Multiple Award GSA BPA program and it were protested on the grounds that any future order issued against that BPA order instrument (or whatever “innovative” term you assign to it (e.g. “Supplemental Ordering Protocol” (SOP)) violates the fair opportunity requirements, the CO would lose. The risk of losing would increase regarding a BPA program awarded with hourly rates. There would be no way to compete price at SOP establishment for the future SOP orders with regard to labor mix/LOE as that is the nature of an indefinite quantity. Since they cannot be priced or known at the time of SOP establishment, then issuing them without competition violates the requirement for fair opportunity under the multiple award GSA BPA program. Unless, of course, you are Leonardo DiCaprio trying to achieve inception and are diving down a few dream levels. He would have no qualms about issuing a “Subordinate Ordering Arrangement” against an existing “Auxiliary Ordering Arrangement” that was issued from a SOP that originated from a multiple award BPA from which the FSS contract holder had its contract cancelled by an extraction dream guardian. So, I DARE a CO to do it. Go ahead and issue a BPA against an existing BPA. Why the hell not? Just because the FAR is silent on the fact that a Chipmunk is NOT a Cinderblock should not hold you back. Don’t be a wuss. DO IT.
  14. jonmjohson nailed it. To add, when using the Deviation the contractor can only buy items/fixed priced services (e.g., oil change at $X). In other words, they can only issue FAR 8.405-1 orders, NOT FAR 8.405-2 orders. This is where everyone gets confused. To turn on the deviation, the CLIN must be T&M/LH, but the contractor using the deviation can only place FAR 8.405-1 orders. They cannot place an order for hourly rate services (FAR 8.405-2). I can tell you that contractors do not like the FAR 51 deviation. Why? because they cannot charge ONE RED CENT for managing the order as the procedures state "The contractor passes through the purchase price of items procured under FAR Part 51 with no fee or markup" . This restriction does not exist in a GSA Contractor Teaming Arrangement as a Services FSS holder who Teams with a Products FSS Holder can charge hours to manage the coordination of supplies needed. No can do on FAR 51 Deviation process as it must be a straight pass through. At least that is how I have heard it is being enforced. Here is a copy of the actual signed deviation: http://www.gsa.gov/portal/mediaId/170991/fileName/Part_51_Deviation__II.action There is another challenge. If your order can be accomplished as an FFP order, but you need FAR 51 Deviation ability to achieve a Total FSS Solution (the whole purpose of why the Deviation was created in the first place), then the only way to do so is make part of your order T&M/LH. The T&M/LH determination required in FAR 8.404(h) does not include in its rationale "because that is the only way I can use the FAR 51 Deviation" now does it. Additionally, you would be limited to an order lasting no more than 3 years unless you get HCA approval. While I applaud GSA for getting the deviation through (which expires, in October this year BTW (but I am sure it will be extended)) GSA should have gone the extra mile and made it applicable to ALL order types and not require them to have a T&M/LH CLIN (which mandates the D&F in FAR 8.404(h). However, I am sure I am just being a semantic FAR Curmudgeon as I doubt that many are following FAR 8.404(h) properly and just stating a sentence or two that "T&M/LH must be used for FAR 51 Deviation Authority" as their rationale for the T&M/LH D&F.
  15. Boof, No such thing as issuing a BPA against a BPA. Same as you cannot issue an ID/IQ against an ID/IQ. However, you can mimic the same thing with option CLINs. Provided you issue your order before the BPA dies, you may exercise options on said order to complete the order, even after the BPA (and even the FSS contract) dies. Look to FAR 52.216-22 in their contract. Para (d) should read "(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period." For why this ALSO includes the order's options (provided the prices in said options never exceed the prices in the BPA when it last existed) Reference: https://interact.gsa.gov/wiki/options-schedule-orders Using this method to build option CLINS will require much work (depending on what items you "may" order). You could literally have a 500 CLINs (different amounts, different items). But it will work. Whenever you need an item, you exercise the option CLIN to turn that set of items on and order it. Works just like a BPA but with a LOT more work up front. AND you will need funds up front to order the initial items. I remember years ago, NASA SEWP had that trick up its sleeve. Since there was no authority to issue a BPA against NASA SEWP, they would use the option CLIN method I just described and call it a "Customized User Purchase Agreement" CUPA. Get it. "CUPA SEWP" Regarding what it sounds like the GSA CO told you do to (issuing one big whopping NTE delivery order), you would need all the funds up front to cover the NTE amount. You should not incrementally fund a Fixed Priced Order (hence my options suggestion as you won't need funds for said options until you "exercise" them). I wish you well in building your option CLINS. I hope you don't suffer having to build too many....
  16. C Culham, Excellent job quoting the 8(a) STARS II Contract. Agree with your position. However, within some other parts of your discussion you are confusing FSS with a GWAC. There is no such animal as an "FSS GWAC". For example, 8.402(f) is not applicable to 8(a) STARS II. Your link to interact discussion is for FSS. While the analogy is the same, FSS has nothing to do with 8(a) STARS II other than they are both GSA Vehicles. Just like a chipmunk is not a cinder block, FSS Contracts awarded under FAR 8.4 are NOT GWACs awarded under FAR 16.5.
  17. From Pyxis case the current FAR 8.402(f) was born. Then came SARA authorizing Commercial T&M and finally FAR 52.212-4 Alt 1. Now the conundrum: How can a CO at the FSS order level add costs that are not priced on the FSS contract under FAR 52.212-4 Alt I(i)(1)(ii)(D) without running afoul of FAR 8.402(f)? The greatest challenge is, that you may not even know what those costs are until you receive the quotes. Hence there is no way for you to comply with FAR 8.402(f) (you cannot separately compete that which you do not know will be). One method is to evaluate the FSS order quotes, determine who is getting the award, then issue a special notice in Fedbizopps that their ODCs are being sole sourced to them (thereby complying with FAR 8.402(f)'s part 5 and 6 requirements (of course, to comply with its FAR 19 requirement you would have to also dissolve the set-aside for those ODCs if your order was not set-aside). Wow this is just CRAZY, but what else can you do? Another even crazier method: 1. Read FAR 12.102© 2. 12 trumps all 3. Commercial T&M orders are governed by a Part 12 clause 4. Document that FAR 8.402(f) is trumped by 12 (Yah, I know-good luck with getting legal to sign off on THAT). Moving on to the indirect cost "fixed amount" challenge for contractors who almost all bill at % rates. If you look back in the comments (do control F "fixed amount") on FAR case 2003-027 (the rule that promulgated SARA's commercial T&M into the FAR) I remember the FAR council disallowing a "rate" (e. g. G&A of X%) for indirect costs. "The Councils believe it is important to provide as much flexibility as possible without violating the cost plus percentage of cost prohibition. The Councils believe use of a fixed rate violates the cost plus percentage of cost contract prohibition. Therefore, the rule does not permit application of a fixed rate. The Councils believe use of a fixed amount may be appropriate and revised the rule accordingly." This stance was taken because commercial contracts cannot contain the allowable cost and payments clause FAR 52.216-7 to true up indirect rates at close out. Indeed until finalized, an indirect rate billed is considered a billing rate under FAR 42.7 A couple of methods to handle the "fixed amount" challenge. Assume the indirect cost is on Travel IAW the FSS clause C-FSS-370 By the way (unless explicitly prohibited in the FSS contract (rare)) this is the only time usually allowed to bill indirect costs without running afoul of FAR 8.402(f) as they are associated with travel. Example for how to turn an indirect cost of 5% G&A on Travel to comply with the "fixed amount" in FAR 52.212-4 Alt1 (i)(1)(ii)(D)(2) Assumption: Travel will be NTE $10,000 for order CLIN 0002 Travel: NTE $10,000 CLIN 0003 Indirect Cost On travel: FFP amount of $500.00 CLIN 003 will be paid in conjunction with each approved travel voucher under CLIN 0002 and will be discounted to the fixed amount of $.05 for every $1.00 of approved travel under CLIN 0002. Another example using a 5% G&A rate and making it fit into a "fixed amount" Travel cost NTE 0-$100 Indirect cost "fixed amount" $5.00 Travel cost NTE $100-200 Indirect cost "fixed amount" $10.00 and so on... At least GSA is attempting to address the issue. See Modernizing the Federal Supply Schedule Program; Order-Level Materials; Notice-FAS-2013-02 That's all folks. Sorry for the long post, but I just couldn't seem to stop once I started.
  18. As concluded in this discussion, directed 8(a) cannot be done under FSS. First, there is the "rule of three" (FAR 8.405-1, 2, and 3 require you to consider/get quote from 3). Second, the SBA regulations explicitly sate an 8(a) order must be competed (this applies to any MAC that was not initially set-aside as 8(a)) (FSS are included in the MAC definition @ 13 CFR §125.1(k) ) 13 CFR §124.503 (h)(2) (2) Allowing orders issued to 8(a) Participants under Multiple Award Contracts that were not set-aside for exclusive competition among eligible 8(a) Participants to be considered 8(a) awards. In order for an order issued to an 8(a) Participant and placed against a Multiple Award Contract to be considered an 8(a) award, where the Multiple Award contract was not initially set-aside, partially set-aside or reserved for exclusive competition among 8(a) Participants, the following conditions must be met: (i) The order must be offered to and accepted into the 8(a) BD program; (ii) The order must be competed exclusively among 8(a) concerns; (iii) The order must require the concern comply with applicable limitations on subcontracting provisions (see §125.6) and the nonmanufacturer rule, if applicable, (see §121.406() in the performance of the individual order; and (iv) SBA must verify that a concern is an eligible 8(a) concern prior to award of the order in accordance with §124.507
  19. metteec, Since the product is not available for separate sale, it cannot be purchased from schedule as it is not TAA compliant. That which can be bought (the "system" a you refer to it) IS TAA compliant (as it went through alleged substantial transformation). While this practice appears to be a potential loophole, I doubt one could bundle Non TAA compliant standard computer peripherals that are typically sold separately, bundle them in packages and claim substantial transformation by packaging them in the same bag. Again, I am not a products expert but simply using common sense.
  20. metteec, Schedule 70 contains FAR clause 52.225-5 TRADE AGREEMENTS. Para ( b ) of that clause states in part "...Unless otherwise specified these trade agreements apply to all items in the Schedule.." Are you asserting that the Schedule 70 Solicitation contains language that exempts TAA compliance for computer peripherals or other IT items if they are "bundled" with a "system" ??? Please show us where we can find this language as contractors would be very happy to "bundle" non-TAA compliant items with their "systems."
  21. I agree with policyguy statement "If the RFP indicated that other information available to the CO would be evaluated I don't see why the CO could not evaluate this information and if it was determined to be a weakness in the Offeror A proposal then at a minimum ask the offeror about it during discussions." IMO it is no different than getting a bad past performance survey back from someone. Unless it is on PPIRS you must allow contractor rebuttal of any negative past performance information discovered. I would treat it (negative social media discovery) no different. Address during discussions. The interesting part (as Vern pointed out) is what happens when a CO discusses, says "noted" and proceeds to give weakness based on social media info and contractor loses. How would GAO rule? I too have no idea but believe it is not far from happening.
  22. Fara Fasat, The only exceptions to TAA are at FAR 25.401. I like your perspective, but others much smarter than I would have used that long ago to exempt TAA from their Schedule 70 Contract. TAA most definitely applies to Schedule 70.
  23. Desparado, I was arguing with Vern in past tense. Of course set-asides are now allowed as of FAR case 2011-024 took effect November 2nd, 2011. well before Vern's comment as Vern was also arguing in past tense. He was saying that set-asides were never prohibited and therefore allowed (hence implying that set-asides could be done BEFORE the onset of the interim rule). Sorry for being so late with the argument, but my point was that before the interim rule, there was no authority for set-asides. I still think I am right from the standpoint of "WAS there authority to allow set-asides under FSS" NO. However, understand no one has time for dead arguments. Just thought I would get the last word in. Just like when I was in Vern's class.
  24. While I am slightly late to the argument (over a year), I am arguing none the less. I am not going to argue that a regulation existed which explicitly prohibited set-asides, rather, I argue from the standpoint that no authority existed allowing set-asides. 1. FAR 8.404 (a) says FAR 19 does not apply also ".....using the procedures in this subpart, are considered to be issued using full and open competition (see 6.102(d)(3))..." 2. FAR 6.102(d)(3) is NOT FAR 6.203. 3. FAR 6.203© prescribes FAR 19.5 Conclusion: It appears to me that while no regulation existed that prohibits set-asides, the only regulation that allows for Full and Open Competition After Exclusion of Sources with regard to set-asides rests in FAR 19. Since FAR 19 was explicitly NOT applicable to FSS orders (except for bundling considerations), then no authority existed to exclude sources by moving from FAR 6.102(d)(3) to FAR 6.203. Vern, I really wish we could have argued this one in FAR Bootcamp class back in August 15-19 of 2011.
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