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Lionel Hutz

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  1. "You miss 100% of the shots you don't take. - Wayne Gretsky" - Michael Scott
  2. FAR 2.101 defines multiple award contract as follows: Multiple-award contract means a contract that is— (1) A Multiple Award Schedule contract issued by GSA (e.g., GSA Schedule Contract) or agencies granted Multiple Award Schedule contract authority by GSA (e.g., Department of Veterans Affairs) as described in FAR part 38; (2) A multiple-award task-order or delivery-order contract issued in accordance with FAR subpart 16.5, including Governmentwide acquisition contracts; or (3) Any other indefinite-delivery, indefinite-quantity contract entered into with two or more sources pursuant to the same solicitation. I do not think it answers the question, but it is interesting that paragraph (3) calls out a contract [not contracts] with two or more sources. Is the "Any other" language from paragraph (3) meant to imply that the FAR 16 contracts referenced paragraph (2) are also a single contracts? i.e., a Multiple-award contract is a single contract with multiple sources and the distinction is whether it is awarded under subpart 16.5 or any other authority. Or, is "Any other" meant to distinguish between multiple contracts awarded under 16.5 (in accordance with the language cited by Joel), and single contracts with multiple sources under other authority? I could see an argument either way. In either case, it seems a single contract with multiple sources is contemplated by the FAR. (Edit: I apologize. I am re-reading this and I did not articulate my thoughts very well. But it is Friday evening, and I'm too tired to rewrite it. Oh well.)
  3. I know the initial question was about issuing 2 RFPs vs 1, but I recommend consulting legal counsel regarding the plan to ask offerors to submit proposals granting different levels of data rights. 10 U.S.C. § 2320 - Rights in technical data, paragraph (a)(2)(H), prohibits the government from requiring a contactor to relinquish rights in technical data as a condition for award of a contract. (And welcome back Vern!)
  4. Also see 5 CFR § 2635.702, which states in part: The government can recognize a contractor through a formal past performance evaluation and it is up to the contractor to recognize its own employees.
  5. Freyr, to follow up on what Joel and Ji said, check out FAR 36.207, which describes "unit-price" contracts as a type of fixed-price contract. It is in the context of construction contracting, but there is no reason it cannot also be used for supplies or services.
  6. I agree that "Law Clerk" is usually reserved for a law school graduate that assists a Judge (usually) or Attorney (less often). "Legal Assistant," or "Paralegal" refers to someone that is qualified to perform substantive legal work under the supervision of an attorney. Per the American Bar Association: Also this from the ABA:
  7. There is more to life than acquisition regulations. Again, you have to take a look at the rules of professional responsibility for the state you are located. What you consider to be "true legal support" is irrelevant. As an example, see the "Unauthorized Practice Rules" in the Virginia Rules of Professional Conduct (https://www.vsb.org/pro-guidelines/index.php/unauthorized-practice-rules/) They state in part: I'm not telling you your legal clerk is practicing law, but research (especially if the clerk is applying that research to a specific scenario) and editing and redlining contracts/agreements may come close depending on the exact nature of the work performed and the definition of legal work in your state. This is one of those cases where you shouldn't try to have your cake and eat it too. Either, the law student is doing "legal work" (i.e., practicing law) in which case s/he should be supervised by an attorney and may be called a legal/law clerk. Or, the law student is providing administrative and business support, in which case call them an Acquisition Clerk or Business Intern or something along those lines. Calling the law student a legal clerk, but arguing the law student does not do "legal work" seems like a needlessly confusing arrangement.
  8. Probably a good research project for your Legal Clerk. In my opinion, the issue is less about what the position is called, and more about what the law student is doing. Specifically, the law student should not engage in anything that could be construed as the practice of law unless they are being supervised by an attorney or have some other exception. A law student may provide legal advice under the supervision of an attorney because the attorney essentially accepts responsibility for the law student’s work product. A law student providing legal advice on his/her own is most likely practicing law without a license. Look to your state bar association for rules on what constitutes the practice of law in your jurisdiction as well as the limits of what a law student or paralegal is permitted to do.
  9. Bob, thanks. I must have just read the case in the past 6 months and for some reason it got stuck in my head as being newer.
  10. I am trying to find a case that I read about a few months ago. I believe it was decided within the last 6 months, and the board or court held that a contractor could not enforce or collect damages based upon a nondisclosure agreement signed by a non-contracting officer government employee. I know this is not a lot to go off and the request is kind of a long shot, but might anyone know what decision/case this was? If not this recent case, perhaps an older case addressing the same issue? Thanks for any help!
  11. I'm not really sure what you are quoting there, but it doesn't appear in the FAR. The FAR makes no distinction between rental and lease of motor vehicles. In fact, FAR 8.1101 Definitions, states, "'Leasing' means the acquisition of motor vehicles, other than by purchase from private or commercial sources, and includes the synonyms 'hire' and 'rent.'"
  12. On the other hand, FAR Part 8 specifically directs contracting officers to "Insert ... (e) The provisions and clauses prescribed elsewhere in the FAR for solicitations and contracts for supplies..." when leasing motor vehicles. FAR 8.1104. The FAR is all over the map when it comes to classifying a rental/lease as a supply vs. service. I don't think one rule applies across the board. When asking whether something is a supply or service, first determine why you need to make that classification, and then apply the rules that apply to that specific determination. Unless there is specific language to the contrary, what would stop you from classifying a rental/lease as a supply for one determination and a service for something else. For example, pursuant to FAR Part 8, include provisions and clauses for supplies in a motor vehicle lease, but also include 52.217-8, Option to Extend Services, in case you need to extend the length of that lease. Edit: For the record, I agree with those saying the backhoe rental should be treated as a supply for purposes of SCA applicability and use of the GPC.
  13. If a Mil Spec hammer is needed to perform a special job that a commercial hammer could not perform, then it would be acceptable. But, the government cannot create unduly burdensome specifications that exceed its requirements. For example, see Global SuperTanker Services, LLC, B-414987; B-414987.2 (Nov. 6, 2017) : "In preparing a solicitation, a procuring agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy its legitimate needs. In this respect, solicitations should be written in as non-restrictive a manner as possible in order to enhance competition.To the extent a protester challenges a specification as unduly restrictive, the procuring agency has the burden to establish that the specification is reasonably necessary to meet its needs. We review the agency’s explanation for reasonableness, that is, whether it can withstand logical scrutiny." (Citations omitted.)
  14. It depends on what you mean when you wrote that funding available was only $500,000. Was the $500,000 limit a formal or informal limitation? An appropriation allows an agency to incur obligations and make payments out of the Treasury for specified purposes. Below an appropriation is the “apportionment,” which is a distribution by the OMB of amounts available in an appropriation. Administrative subdivisions imposed by an agency are the third level of fiscal control and are divided into “formal” and “informal” administrative subdivisions. Formal administrative subdivisions consist of allocations and allotments. Informal administrative subdivisions are created by agencies at lower levels and are considered funding targets, or “allowances.” Exceeding an allowance or other informal subdivision of funds does not violate the ADA unless to do so would also cause a formal subdivision, an apportionment, or an appropriation to be exceeded. So, if sufficient funds were available at the formal administrative subdivision level, the KO's over-obligation of the allowance, while improper, would not amount to a violation of the ADA.
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