Jacques

While I'm not following your scenario, if you haven't read Nash & Cibinic, Administration of Government Contracts, Chapter 10, section V.E.1, I encourage you to do so. While I don't have the latest edition, in the Third Edition, at 1035, this section begins as follows: (emphasis added). It then cites to Olean Case Corp., GSBCA 4673, 78-1 BCA ¶ 12,905 and Foster Refrigerator Corp., ASBCA 32059, 88-1 BCA ¶ 20,398 as support for this conclusion.

Future determinations is how I understand it.

Hopefully the information in the SCA Desktop Guide linked above answers the mail. Just by way of "gee whiz," the US Air Force Labor Advisors have some training material on the clause entitled, "FAR 52.222-42: An Exercise in Futility, or Helping Develop a Better Estimate?" The title obviously suggests some skepticism with the clause and whether the Government effort that goes into providing the information is time well spent. I share that skepticism, but I don't think the intent behind it is to help offerors. Title 41, United States Code, section 6703(5) provides in relevant part: IMHO, add the requirement behind the 'equivalent federal hires' clause to the list of statutory requirements that we can live without.

The protest that use of an Other Tranaction Authority was improper would have to be TIMELY. Whether that is prior to deadline for receipt of proposals or not could depend on the facts that made use of the OTA improper. If the facts as you see them that made use of an "Other Transaction" improper were apparent on the face of the solicitation, then the protest would be a protest of the terms of the solicitation, and would need to be filed prior to the deadline for receipt of proposals. That obviously isn't the ONLY context where this comes to light. For instance, Oracle America, Inc., B-416061, May 31, 2018, 2018 CPD ¶ 180, was a timely post-award protest. Given your original post, it seems likely your protest is untimely, but it is hard to say for certain.

FAR Subpart 19.7 does not include the word, "waive" or "waiver." I assume @creyes814 was referring to the written determination referenced in FAR 19.705-2(c). The prescription for the clause at FAR 52.219-9 appears at FAR 19.708(b)(1). The clause is not prescribed if the contract does not "offer subcontracting possibilities." This isn't a magical term of art. If the prime won't be subcontracting out any of the work, the clause isn't prescribed. FAR 19.708(b)(1)(iv) provides, "When...incorporating a subcontracting plan due to a modification as provided for in 19.702(a)(3), the contracting officer shall use the clause with its Alternate IV." Maybe I'm reading too much into this, but this makes it sound like you wouldn't include the clause at 52.219-9 if, at the time you were making that decision, there was no requirement for a subcontracting plan. While paragraph (c)(1) of the clause begins, "The Offeror, upon request by the Contracting Officer, shall submit and negotiate a subcontracting plan...," I still worry what including the clause would end up doing if the contractor had a commercial plan. Wouldn't this risk folks interpreting the inclusion of the clause as amounting to a Government conclusion that the contract was a "covered contract" for the purposes of paragraph (g) of the clause? Secondly, I don't know how the eSRS requirement at paragraph (l) of the clause would be handled. Seems to me better to just not include the clause if there is no requirement for a subcontracting plan.

While the memo unfortunately uses the word "rescinds," it seems to me OSD doesn't think it has actually rescinded. For any existing contracts that include the requirement to report to eCMRA, I would leave that contractual requirement in place. While others will likely disagree, if I were releasing a solicitation today for DoD, I would look to the prescriptions at FAR 4.1705 and include the appropriate FAR clauses. I appreciate technically I am not required to do that, but it isn't forbidden. I worry the drafters of the DFARS Case are going to end up making its applicability retroactive, and I would rather just avoid the hassle.

Thanks @FAR-flung 1102. Toward answering @Fran's question, the last paragraph of the memo you linked suggests we should expect more information. In addition, the following might provide some useful context, at least toward understanding CPI's view: https://dodprocurementtoolbox.com/cms/sites/default/files/resources/2020-01/Procure-To-Pay Capability Summary 48 - DoD Contractor Manpower Reporting.pdf

As the GAO said in Columbia Research Corp., B-202762, 61 Comp. Gen. 194, 82-1 CPD ¶ 8: That said, don't forget about the definition of "subcontract" appearing at FAR 19.701 or its definition at 13 CFR 125.3(a)(1). Given how broad that definition is, if you get cost data that lists "materials," I would seriously consider asking for a subcontracting plan. To avoid the type of silliness described in DoD IG Rpt DODIG-2018-086, include in the contract file the determination described at FAR 19.705-2(c).

@lawyergirl, I couldn't reproduce your results. I went to https://www.gsa.gov/buying-selling/products-services/professional-services/acquisition-support, downloaded PS-MAS Old SIN to New SIN/NAICS Code Crosswalk Table, and did a search on the new SIN of 54151S. For some reason, the row (row 70) was hidden, but when I "unhid" it, all the appropriate NAICS codes, including 541519, were listed.

I can't speak intelligently on whether Congress should take away COFC's jurisdiction to hear bid protests. I do worry the system may be asking too much of COFC judges to be able to rule wisely on the wide range of issues that appear before that court.

I'm behind in the conversation, but back to your discussion on COFC reviewing an agency decision to override a CICA stay, I think Reilly's Wholesale Produce v. U.S., 73 Fed. Cl. 705, 711 (2006) lists the factors. (I think this remains the law but it has been awhile since I've had to deal with it.) Paraphrasing, the factors are: Overrides are infrequent. While I think overrides were used more, and used more effectively following this statistic, especially for GWOT-related efforts, COFC invalidated four of six agency overrides in the six years from 1999 to 2004, according to 82 Federal Contracts Reporter 578. (I think I have those years right.)

I think I'm misunderstanding your steps 7 & 8. Why did the COFC grant the preliminary injunction? Do you mean the protestor abandoned its protest at the GAO and is now pursuing the protest at COFC, or do you mean the protestor is seeking COFC to review the agency's override decision? COFC employs standards in granting the preliminary injunction or in reviewing the CICA override. Are you saying those standards favor the protestor disproportionately? Or do you believe, as a practical matter, whatever the rules may say, judges at COFC will find a way to enjoin?

It is difficult to legislate courtesy, but I like the idea of setting or acknowledging expectations. Just by way of example, consider the following (which is unrelated to the thread that set this off). It would be nice to have better insight in circumstances like the thread, "DoD Contractor Manpower Reporting & Inventory for Contracted Services Ends." On Wednesday, the OP posted a question that seems to make an assumption. On Thursday, I replied asking for more insight on that assumption. Nothing further has been posted. The silence makes me speculate. Is the OP just busy? Did she find her answer elsewhere and decide she didn't want to share her wisdom? Is there something about my reply that led her to decide not to respond? Something about the "climate" of the board more generally? If my post was rude, that's something I can do something about (or let's pretend that's something I can do something about ). If, on the other hand, the post is now "overcome by events" for the OP, the polite thing to do IMHO is to post as much. Is setting or acknowledging expectations (in this case that OPs should strive to respond within a couple days) a good or bad idea? I don't know. Do the perceived costs outweigh the likely benefits? Quite possibly. Following this discussion board can be both rewarding and challenging. I admire Bob for wanting to make it a "more perfect union," but it will never be perfect for everyone.

I guess to summarize, at least from my perspective, a money settlement would be limited to proposal preparation costs, and, in very limited circumstances, the costs of pursuing the protest. Perhaps more importantly, to pay any settlement requires acknowledging the agency failed to follow a procurement regulation. The circumstances under which the Government can decline to take corrective action in the face of failing to follow a procurement regulation are limited. @bob7947, for what its worth, in 1990, Sen. Levin introduced S. 3123, which was similar to FASA sec. 1436, except instead of applying just to the GSBCA, it applied to the GAO as well. It died in committee.

Sorry if I changed the OP's original fact pattern. I thought the idea was to avoid a GAO protest by treating the negotiation of the settlement agreement as an agency-level protest.