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charles

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Posts posted by charles

  1. Matt, if I followed your suggestion, my original question would lack context, since my question is based on a particular acquisition that does not require an FBO award notification.   For example, some acquisitions require notifications and debriefs, which affect timeliness protest rules.   The word silly does not bother me.   I genuinely think your responses have been unhelpful.   

  2. Matt.  What a silly statement.   My question is focused on protest timeliness and contractor knowledge.   If a contractor requested an award status 30 days after award, then would a potential protest be considered timely?  Retreadfed's response addresses the original question.    Maybe, the above regulation should be revised to require a notification of award?  Your silly thoughts?    

  3. 13.106-3(c) states, "Notification. For acquisitions that do not exceed the simplified acquisition threshold and for which automatic notification is not provided through an electronic commerce method that employs widespread electronic public notice, notification to unsuccessful suppliers shall be given only if requested or required by 5.301."  If a Part 13 supply acquisition meets the no notice requirement (absent requesting award status), then how is a prospective contractor supposed to know whether she was an unsuccessfull supplier?  If an unsuccessful contractor disagrees with a no notice award, then what date will be used to determine whether  the basis of protest is known or should have been known.  Should it be the contract award date?  Should it be whenever the contractor finds out (e.g., the contractor contacts government on award status 30 days after award)?  Thoughts?

  4. "Joseph Jordan, the White House’s top contracting policy chief, floated the idea Tuesday of having contracting professionals rotate between government and the private sector."

    See link.

    http://www.federaltimes.com/article/20130723/ACQUISITION03/307230006/Official-Rotate-contracting-officers-between-government-private-sector?odyssey=mod_sectionstories

    Jordan knows there are issues with his idea and obvioulsy among other things there are potential conflicts of interests.

    What are your thoughts?

  5. Exactly. My question is why is it subject to CICA? It was already competed once. What value is obtained by holding an additional competition for the same exact services that, were it not for an administrative error, would be provided by the original awardee? The only period of performance that would change would be the period that should be in effect. It would be shortenend. The contract end date would not change, hence the contractor would not obtain additional work.

    Thanks for trying Don. I think I'm just digging for the original intent of the Act. Was it meant to apply to situations such as the one I described? No answer required. Thanks!

    Read cited GAO opine. This may help. "Where a contract for visitor reservation services has expired, the contractual relationship which existed is terminated and the issuance of an amendment 4 months after the expiration date to retroactively extend and modify the contract as if it had not expired amounts to a contract award without competition, contrary to the requirements of the Competition in Contracting Act. A protest challenging the amendment is sustained, therefore, and GAO recommends that a competitive procurement for the requirement be conducted" (65 Comp. Gen. 25 (Comp.Gen.), 25, 1985 WL 50837, 1).

  6. OP FWIW your agency most likely committed a CICA violation and a protest challenging the exercised option may be sustained. "Where a contract for visitor reservation services has expired, the contractual relationship which existed is terminated and the issuance of an amendment 4 months after the expiration date to retroactively extend and modify the contract as if it had not expired amounts to a contract award without competition, contrary to the requirements of the Competition in Contracting Act. A protest challenging the amendment is sustained, therefore, and GAO recommends that a competitive procurement for the requirement be conducted" (65 Comp. Gen. 25 (Comp.Gen.), 25, 1985 WL 50837, 1).

  7. I think it is a bit disingenuous to infer protests are too cost prohibitive. Agency level protest and GAO level protests are relatively inexpensive. I think the costs for a KTR to send an email to the KO is negligible. In my experience GAO has provided some flexibility to the pro per/se KTR. Regardless, of costs, I agree most protests can be a waste of time, although, some protests I reviewed and advised on, were IMO meritorious, and agency corrective action was appropriate.

  8. Hello ji20874

    I thought revolving funds are ?no year? funds. See, e.g., Department of Defense Appropriations Act, 2000, Pub. L. No. 106-79, 113 Stat. 1212 (1999). Although, revolving funds are not dependent upon annual appropriations and the Bona Fide Needs Rule does not normally apply I think there are restrictions. See 10 U.S.C. ? 2213(a) (limiting the acquisition of any supply item to 2 years of operating stock); U.S. GEN. ACCOUNTING OFFICE, REPORT TO CONGRESS, DEFENSE WORKING CAPITAL FUND: IMPROVEMENTS NEEDED FOR MANAGING THE BACKLOG OF FUNDED WORK (2001). See also, Matter of: Implementation of the Library of Congress FEDLINK Revolving Fund, B-288142, Sep. 6, 2001; Matter of: Continued Availability of Expired Appropriation for Additional Project Phases, B-286929, Apr. 25, 2001 (it is still improper to ?bank? an agency?s annual funds with a GSA account to cover future year needs). So what are the differences between no year and revolving funds?

  9. Vern it is readily apparent your neurotic need to make a ?whatever point? highlights how full of yourself you really are. My intent for this post was too illicit some responses to help me better understand what is a BPA and whether there were some concepts applicable to the BPA whether or not it was included in the agreement?s terms (i.e. Christian Doctrine). I can read the contract or agreement and I am familiar with contract law, agreements, and understandings. However, federal procurement law is different from contract law. For example, federal contracts do not contain two way indemnification agreements, state choice of law provisions, recitals, severability clauses, and so on. I admire your subject matter knowledge, but some of your responses have not been always been perfect, some wrong, so get over yourself. It?s not all about you.

  10. Dear Jacques and Other Readers,

    Gov has placed BPA orders w/ KTR. Gov received notice KTR will use subcontractor a few months after KTR received BPA award. Gov has an ongoing need to use BPA. Gov may have awarded BPA to different KTR had it known KTR was using subs. Gov intends to resolicit BPA. Since Gov has a continuous need for services offered in BPA is Gov required to provide notice for termination or whatever stating orders will no longer be placed with KTR?s BPA?

  11. Is the government's current philosophy to use liquidated damages (the stick) less and opt. for terms that reward (the carrot) contractor's performance?

    I view liquidated damages as a clause to provide the Government monetary relief from a contractor's delayed or deficient performance through reasonable price adjustment under a stipulated contractual formula. It?s not supposed to be punitive. It is what it is. Also, I do not think it?s appropriate to use LDs as a carrot. IMO, those carrot instances (I feel like bugs bunny) could potentially create an acceleration issue. Regards.

  12. Hello All,

    KTR failed to disclose subcontractor use when it submitted its proposal. KTR received BPA award for services based on its own organic capabilities. KO intends to terminate BPA. What processes/procedures are required to terminate a BPA? Since a BPA is not a contract, there is no established jurisdiction

    under the Contract Disputes Act (CDA). Zhengxing v. U.S., 71 Fed. Cl. 732, 739 (2006); Julian Freeman, ASBCA No. 46675, 94-3 BCA at 135,906. So you can just terminate correct? If NO then what procedures have you used (i.e. cure, show cause, etc. ) Also, are there any cases/regulations on point highlighting this bait and switch scenario?

    Regards

  13. Jtoli on post 3 you state, "Unfortunately no one has been able to cite any particular reference in the Red Book that prohibits the use of these funds past 30 Sep. The pat answer is, "it's fiscal law"." Your statement appears to indicate a misunderstanding of what is fiscal law. ?The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.? United States v. MacCollom, 426 U.S. 317 (1976). You must have an authority to expend appropiated funds not a prohibition against it. If you have legal support perhaps you could request a PTA analysis on your concerns. Regards.

  14. Be aggressive. Get names and phone numbers. Telephone people. Call them every day. Keep at it. They are contracting people, after all, which means that it takes them forever to get anything done unless you push them.

    I saw some openings in Afghanistan at USA Jobs. They must need people. Get the name of the military commander and call him or her. Tell him you've submitted applications, but haven't heard back. Get General Petraeus's email address and write to him. Tell him you want to serve, but that you can't get anyone to respond. I'm not kidding. That's what I would do. Bypass the stateside bureaucrats and go directly to the overseas office chiefs.

    Albeit obvious you may want to proof read your email, review its content for appropriateness, prior to sending it to a GO or other senior official. For example, avoid "Hey General P Id be like deploying cause Im good at contracting." :)

  15. Are you drafting a commercial contract? I am assuming yes. If subcontractor for dod contractor is not comfortable with "time is of the essence" language then you may want to consider among other things using "promptly, but in any even within X days." It is up to the contracting parties to negotiate its terms, also, does it matter if "time is of the essence" is used? Would a firm delivery date satisfy your concerns?

  16. IMO your concern about NTE is NOT as critical as Government actions when it issued a change order based on a supposedly faulty/defective specification. Did anyone on your team make a determination whether it was a design or performance specification? Perhaps obvious, I would never advise Government to issue a change order (or bilateral modification) if Government was uncertain whether specifications were defective. What were the contents of your change order? Did it state government acknowledges incomplete specs or whatever and approves KTR REA to complete work? I would argue the change order itself is an admission from Government it acknowledges defective specs. You said, ?Now it appears the contractor is not entitled to payment for the work performed under the change order.? Anyhow, if you intend to proceed with your course of action I would be more certain than ?it appears.?

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