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Vern Edwards

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Everything posted by Vern Edwards

  1. Specific Performance

    Here is the Black's Law Dictionary definition of "specific performance":
  2. Contractors are not required to seek or obtain "full and open competition." Only government buyers are required to do that. Contractors are required to "select contractors on a competitive basis to the maximum practical extent consistent with the objectives and requirements of the contract." See FAR 52.244-5. That's a lower standard. In a CSPR the government is supposed to determine "the degree of price competition obtained." I cannot say what an auditor would think of the case that you described. I would not be surprised if they object, because they might be thinking in terms of rules that apply to the government. I think the key might be for you to show that there really was price competition among the distributors. Merely showing that you got quotes from two or more distributors might not be enough. I would certainly question it.
  3. NAICS and Scope

    I don't think that a new NAICS analysis needs to be done for each requirement. I think that you must comply with both FAR 19.303 and 13 CFR 121.402(c), which requires a complete NAICS code analysis for all prospective work before the contract solicitation is issued. After than, you simply assign the appropriate NAICS code on an order-by-order basis. See 13 CFR 121.402(c). See also 13 CFR 121.402(e): As you can see, you may not use just a "principal purpose" NAICS code and size standard for a MATOC or MADOC unless that NAICS code and standard will apply to all orders. Otherwise you must include a NAICS code and size standard for each kind of work for which orders will be issued. Each order is then issued with its own NAICS code and size standard. That has been the law since December 2013. See also FAR 19.303(b). In the one SBA OHA case that I cited, a small business contractor appealed the decision to apply the principal purpose NAICS code used in the contract solicitation to an order to which it did not apply. The OHA dismissed the appeal, saying that in light of the facts the order had to use the same NAICS code as the was used for the contract, because the MATOC solicitation had included only a principle purpose NAICS code and the appellant had missed the deadline for appealing. I think that the OHA ruling was unjust and that it may not have complied with the law, but the appellant did not appeal that decision. As for "MATOC", I have used that acronym on occasion for other than construction contracts, although the most common use is in connection with construction contracts. The ASBCA has used it mainly in connection with construction contracts, but also for ship repair. I've found a COFC decision in which it was used for software development. Search FBO and you'll find it used for many kinds of contracts, including R&D: You might be interested to know that according to a Westlaw search, the acronym MATOC does not appear anywhere in the FAR System, Title 48 of the CFR, neither does the term "multiple award task order contract."
  4. Specific Performance

    help: Yes, it was meant for Jamaal. Jamaal: Do yourself a favor and consult with your legal office. Getting a court-ordered specific performance is way beyond what a CO could do.
  5. Specific Performance

    See Marker v. U.S., 646 F.Supp. 433 (1986, D. De.) in which the district court granted the government's plea for specific performance of a contract.
  6. Specific Performance

    @here_2_help: I found this in the U.S. Attorneys' Manual: https://www.justice.gov/usam/civil-resource-manual-219-specific-performance
  7. Specific Performance

    I have been told by reliable authority that the answer is yes. The government can seek specific performance as a nonmonetary remedy, but not from a board of contract appeals. It would have to go to a court under other than the Contract Disputes Act. A contractor may not seek specific performance by the government. I have not researched the matter myself, but my source is generally reliable. I'm to busy now to dig out statutes, cases, or secondary sources..
  8. NDAA for FY 2018

    Thanks, Bob. Vern
  9. Access to CLIN funding after POP end date

    Toodle9034: I have never read a more confused and confusing post than yours. I think you want to de-obligate funds on one or more line items and re-obligate them on one or more others. If so, then the key facts are what kind of funds you have, not the business about contract types and CLINS, severable projects, and blah, blah, blah. Most of the information that you provided is irrelevant. Try revising your post without all the history and without your own assessment of the situation. Just say what kind of funds are involved (one year, multiple year, or no year), what their current status is, and what you want to do with them and use them for. Then, if you are clear enough, someone might be able to help you. Before you post again, read Principles of Federal Appropriations Law, Volume 1, Chapter 5, which is available here: .
  10. Note that disciplinary action for violations is rare or mild, even when the amounts are in the tens of millions.
  11. NAICS and Scope

    I asked ji20874 on what basis he asserted, "The order opportunities must use the NAICS code(s) established in the parent contract." I have found one answer to that question. See NAICS Appeal of: Dellew Corp., SBA No. NAICS-5837, 2017, 2017 WL 2618804, June 9, 2017, a decision of SBA's Office of Hearings and Appeals. The decision cites earlier SBA OHA decisions. I don't believe the decision is necessarily the last word on the matter, but it reinforces the potential importance of agency compliance with FAR 19.303(b) when issuing a solicitation for award of a MATOC. See also 13 CFR 121.402(c)(1). While COs must assign a single NAICS code to the solicitation, they must identify the NAICS code(s) associated with any work that is not part of the principal purpose. That could be done through CLIN structure or by annotating the statement of work. Small business offerors reviewing a solicitation for award of a MATOC might want to inquire whether the NAICS code assigned to an RFP represents all of the work to be ordered or only the principal purpose work. See FAR 19.303(c).
  12. Bob, You have done us a real service. Thanks. Vern
  13. What "subcontractor's contract obligation" are you talking about? I thought the issue was whether a prospective subcontractor would/should assent to a proposed obligation. I agree that if a prime has promised to flow down a clause, and if the prospective sub refuses to assent to the clause, then the prime must seek another source. It looks like you no longer recommend casting suspicion on a prospective sub of selling counterfeit parts just because they won't assent to a clause.
  14. NAICS and Scope

    Based on what do you say that? Can you cite a regulation? What if the solicitation for the MATOC did not comply with FAR 19.303(b)? Have you read 13 CFR § 121.402(c)?
  15. NAICS and Scope

    ji: I would not assert anything at this point. I'm challenging your assertions. I don't know what I think about the matter yet. But you have forcefully argued that the term solicitation does not apply to requests for task order proposals or quotes and that this inapplicability is intentional. You conclude that a CO thus need not do a FAR 19.303 NAICS code analysis when issuing a task order request. I think that we have to consider all of the premises underlying your argument before we can accept your conclusion. My questions to you reflect my doubts about your first premise. I doubt that the FAR councils thought about the issue at all. When they first issued the rules in FAR 16.505(b) they did not anticipate post-award MATOC order set-asides a la FAR 19.502-4(c). See FAR 19.303(a): Emphasis added. FAR 19.303(b) says: What if, as appears to be FrankJon's case, the solicitation for the MATOC did not do that? And what if the CO is now going to issue a request for a task order proposal for specific work best described by a different NAICS code than the one that represented the greatest percentage of contract value? And what if the CO plans to set that order aside for small businesses? And what if some contractors that were small businesses under the "principle purpose" NAICS code in the MATOC solicitation are not a small business under the NAICS code that governs the specific work to be done under the task order? Which of the contractors are small businesses for the purpose of that task order? Don't you have to know the appropriate NAICS code in order to answer that question? Doesn't the CO have to tell the MATOC contractors which of them can be considered under the task order set-aside? Doesn't he or she have to do a NAICS analysis in order to tell them? Can he or she award the task order set-aside to a contractor that is not a small business for that particular work? I'm not ready to make an argument, and I'm not going to answer any questions about an assertion that I did not make. I'll understand if you don't want to answer the questions that I put to you.
  16. NAICS and Scope

    @ji20874 The notion that the FAR councils knew what they were doing is laughable. When the rule was first published they had no idea how multiple award contracting was going to be done. What is your evidence that the omission of the word solicitation in 16.505(b) was intentional? Background in the Federal Register in either the proposed or final rule? Or is the assertion of intentionality merely a supposition on your part? If an agency requests offers or quotes for a prospective task order, why isn't that request a solicitation as defined in FAR 2.101? What if the agency refers to its request as a solicitation? Why do you think the GAO uses the word solicitation in connection with requests for task order proposals? Google <<solicitation for task order proposals>> and see what you get, then tell me what you think. Are all those agencies wrong? Misinformed? Ignorant?
  17. NAICS and Scope

    The GAO uses it. See HP Enterprise Services, LLC, B- 413888.2 (Comp.Gen.), 2017 CPD P 239, 2017 WL 3309908. The GAO has used the word in several task order "fair opportunity" protests. See the definition of solicitation in FAR 2.101. FAR does use the term in the context of an order under an IDIQ contract. See FAR 16.505(a)(4)(iii)(A)(2).
  18. Ethics and Transparency

    Is the command in Maryland?
  19. Late Submission of Electronic Proposals

    However he or she thinks best. As things now stand, there is no "correct" interpretation. If the proposal would be late under the GAO's interpretation, but timely under the COFC's interpretation, my decision would depend on whether the proposal in question might be the best, in which case I'd go with the COFC's interpretation. Poorly worded question. Of course the offeror can request. A person can request anything. The question should be whether the CO must provide such evidence upon request. The answer is No, because no statute or regulation requires that a CO provide any such evidence upon requeast. Should a CO provide it? If I were the CO it would depend on how much trouble it would be and whether there would likely be any controversy about it. There is a way around all of this. The CO can state in the RFP how he or she will interpret the "government control" exception to the late proposal rule with respect to electronic submissions. Anyone who objects would have to protest before the deadline for receipt of proposals. It is very unlikely that anyone will do so.
  20. Suspected because they won't accept another government clause? Maybe they won't accept the government clause because they think it's just another stupid government clause, in which case i suspect them of being fed up.
  21. It entered in because the OP quoted clause language without reference. I went looking for matching text and found it in the AGAR. I guessed (perhaps wrongly) that the OP was with the Forest Service, which is part of the Department of Agriculture. The OP has not mentioned a Clause 9. Perhaps the OP should confirm the provenance of the clause and quote the <<bleeping>> thing it in its entirety. Then we wouldn't have to guess. Anyway, several of us have responded to the original question, and D_Wess has different answers from which to choose. I'm done.
  22. No. And throw away your 4th edition. The current edition of Black's, the 10th, defines demand (n.) as follows: The assertion of a legal or procedural right. Parliamentary law. A request, usu. invoking a right, that must be granted on a single member's motion. See REQUEST. A request for payment of a debt or an amount due. In economics, the intensity of buyer pressure on the availability and cost of a commodity or service. In your case, the term "request for equitable adjustment" is not appropriate, because the clause in question does not call for either an adjustment or an equitable adjustment. The clause is not clear about the contractor's entitlement. It was written by someone who should not have been writing clauses. Claim is an appropriate term in your case if what the contractor submitted meets the criteria for a claim in the definition of claim in FAR 2.101. Otherwise, I'd call it a non-claim request or demand for compensation or payment.
  23. I would love to know how Department of the Interior COs interpret the clause at 48 CFR 252.237-70 when settling claims of loss.
  24. Ethics and Transparency

    "Or else" what? Did you ask? Would they discipline you for looking at it? Fire you? "Don't look at it, or else" strikes me as ridiculous on its face. In other words, to avoid synopsis? If that's it, you'd have to discipline a quarter of the workforce for trying to evade synopsis when prospective dollar values are, shall we say, elusive. Okay, well, watch and learn. Wait until you've got some time under your belt before you start getting too judgmental.
  25. The Department of Agriculture clause, 452.237-70, reads as follows: I have bolded what I think is the pertinent paragraph. What strikes me about that clause is how broad and indefinite it is. There is no clear statement of precisely what the government's liability will be in cases of loss. Undepreciated value? Replacement value? What other liabilities? I found no interpretive guidance in the agency's FAR supplement. The clause says that the government is responsible for loss, damage, and destruction "of equipment." What does that include? "Idle time"? The equipment is not idle. It's gone. "Idle time" is lost business opportunity. It seems to me that what the OP is calling "idle time" might be considered consequential damages. See Cibinic, Nash, and Nagle, Administration of Government Contracts 4th, 719-20, pointing out that contractors have found it hard to recover consequential damages based on destruction of their business or lost business opportunities. I could not find any litigation of the clause. Interesting.
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