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Lionel Hutz

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About Lionel Hutz

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  1. FAR 15.404-1(b)(2)(i) states, “Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price (see 15.403-1(c)(1)(i)).” In other words, there must be adequate price competition to rely on a comparison of proposed prices. “Adequate price competition” requires, in part that “Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government’s expressed requirement…” FAR 15.403-1(c)(1)(i) (emphasis added). How can you know whether a competing offer satisfies the Government’s expressed requirement if you have not determined technical acceptability? I do not agree that comparison of proposed prices establishes price reasonableness when only one offeror has been determined technical acceptable. To do so ignores the requirement that there be “adequate price competition.” Of course, as others have mentioned, the OP does not have to evaluate all the offers as there are other ways to determine price reasonableness. In fact, the prices may have already been found fair and reasonable. This is a TO competition. Brent, were ceiling prices established and found fair and reasonable when the contract was awarded? If so, is there any reason those prices would not still be fair and reasonable?
  2. I'm not sure that this is the definitive answer, but DFARS 204.7103-1(f) states, "If a supply or service involves ancillary functions, like packaging and handling, transportation, payment of state or local taxes, or use of reusable containers, and these functions are normally performed by the contractor and the contractor is normally entitled to reimbursement for performing these functions, do not establish a separate contract line item solely to account for these functions. However, do identify the functions in the contract schedule. If the offeror separately prices these functions, contracting officers may establish separate contract line items for the functions; however, the separate line items must conform to the requirements of paragraph (a) of this subsection." (emphasis added) So, it seems like the contracting officer can establish separate contract line items for other direct costs like transportation, provided it satisfies the listed requirements. Or am I reading that wrong?
  3. Lionel Hutz

    COR Conflict of Interest

    Retreadfed identified the applicable portion of the regulation. The Standards of Ethical Conduct impose duties and requirements on federal employees that are enforceable by the government, not by the public. However, if a company has a separate and independent contractual cause of action, then a COR’s violation of ethics regulations could strengthen a claim/appeal. For example, if a contractor alleges the CO’s and COR’s treatment of the contractor was unreasonable, increased the cost of performance, and violated the contract’s implied duty of good faith and fair dealing, then the COR’s violation of the ethics regulations lends weight to the contractor’s argument. It doesn’t prove anything, but in my opinion, a court or board of contract appeals will be less deferential and more skeptical of the actions and explanations of a COR who has a “covered relationship” with the contractor and was appointed in violation of ethics regulations. Even if there is not a claim or appeal in play, a contractor can still seek redress, it just depends on how much of a nuisance she wants to make herself over this issue. In my experience, the key to getting results is to increase the “pain” level until ignoring the issue is more burdensome than dealing with it. So, start by notifying the contracting officer. Maybe she/he was not aware of the prohibition and it can be solved at that level. If you get ignored, go to the Chief of the Contracting Office. Then, the Chief Counsel, Agency Ethics Official, and Agency Inspector General’s Office. If no one in the Agency will address the situation, contact your Senators and Congressman. It’s amazing how quickly an issue will get addressed when a Congressional response must be provided. At each step of the way, articulate the harm being caused to your company by this apparent violation of ethical regulations. This course of action is provided with the following practical considerations: 1) Make sure the issue is worth it. If you go to your Congressman or the IG with every contract issue you have, your complaints will start to lose their effectiveness. Become a “frequent filer” of complaints and people will start thinking the problem is with you and not the Agency. 2) Is the COR actually doing something to negatively affect your company? If this is just an issue that you think doesn’t look right, but the COR is not actually doing anything problematic, it may not be worth becoming a nuisance and jeopardizing your relationship with other agency personnel. 3) In less than a year, the COR will no longer be in a “covered relationship” with the company and will be permitted to be the COR again. Will getting the COR “kicked off” this contract for 6 months make working with him more difficult in the future? 4) Finally, as Vern points out, the regulation says “should” not “shall,” and the “agency designee” can authorize someone to work on a matter regardless of any real or perceived impartiality. In the end, while you may be able to force an answer out of an agency, it won’t necessarily be the one you want.
  4. Lionel Hutz

    COR Conflict of Interest

    I didn’t quote the entire section because I thought it was obvious that a company that has a contract has a financial interest in that contract. I was trying to draw Lois’s attention to the fact that there is a “covered relationship” due to the prior employment. If that was misleading, I apologize. While paragraph (a)(2) addresses situations when there is no financial interest, it is not applicable here because there is a financial interest. For clarification purposes, let me explain. 2635.502(a) says that if a government employee has a covered relationship with a party that has a financial interest in a matter, that government employee should not participate in that matter (or get authorization) if circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality. As quoted above, a “covered relationship” includes “Any person for whom the employee has, within the last year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee…” 5 CFR 2635.502(b)(1)(iv). In this context, “Person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity.” 5 CFR 2635.102(k). So, in Lois’s scenario, the COR most likely has a covered relationship with his former employer because he worked there less than one year ago. Because the actions of a COR can have a direct and predictable effect on the financial interests of a contractor, the COR should not be assigned to his former employer’s contract if circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality. We don’t know all the relevant facts. Perhaps, there are a unique circumstances here that would not cause someone to question the COR’s impartiality. Or, perhaps the KO sought and received authorization from the agency designee to appoint the COR despite the appearance of impartiality. In any event, Lois, if you are concerned about that individual being the COR, you have plenty of regulatory support for looking into this matter further and asking the KO if he/she complied with these regulations.
  5. Lionel Hutz

    COR Conflict of Interest

    Possibly, depending on the circumstances. See 5 CFR § 2635.502(a) which states, in part, Paragraph (b) then says So, as an employee within the last year, the COR likely has a covered relationship with the company. The issue is whether "reasonable person with knowledge of the relevant facts" would question the COR's impartiality, keeping in mind that under the general principles of government ethics, an employee should avoid even the appearance of unethical behavior. 5 CFR § 2635.101(a)(14).
  6. Lionel Hutz

    how to structure emergency service

    The language you quoted addressed noncompetitive purchase orders issue against noncompetitive BPA's. See the subsequent GAO decision involving the same procurement (posted earlier by Jwomack) stating that if competitive procedures are used to establish the BPAs, then orders may be rotated among the BPA holders. In the hypothetical presented, we are dealing with simplified acquisition procedures under the SAT. Under FAR 13.104, "maximum practicable competition" can be obtained by soliciting quotations from three sources within the local trade area. Therefore, Vern's recommendation of soliciting and establishing priced BPAs with at least three local vendors satisfies the requirement for maximum practicable competition. Because "competitive procedures" were used in establishing the BPAs, the orders may be rotated without additional competition.
  7. Lionel Hutz

    FAR 52.212-5

    Sorry. Just getting around to seeing this again. But the info does need to be filled in. See 52.104(d), which I also cited.
  8. Lionel Hutz

    FAR 52.212-5

    Take a look at FAR 52.102(a)(3)&(4), as well as FAR 52.104(d).
  9. Lionel Hutz

    IDIQ Decision

    The GAO Redbook says the following, "GAO has conducted several studies of year-end spending and has consistently reported that year-end spending is not inherently more or less wasteful than spending at any other time of the year. In one report, GAO suggested that year-end spending surges are really symptomatic of a larger problem—inadequate management of budget execution—and that the apportionment process could be more effectively used to provide the desired management." (Vol. 1, Ch. 5, p. 5-17.) Unfortunately, out of the five studies cited, four are from the 1980s and one dates from 1998.
  10. Thank you Vern! I understand that a trade off process would offer an "advantage" in that small business wouldn't have to be referred to the SBA for COC consideration. But, when comparing only an LPTA using "responsibility-type" evaluation factors to a Price only evaluation using Special Standards of Responsibility, it sounds like neither option provides an "advantage" over the other (with regard to SBA COC issues) because both would require referral to the SBA. Is that correct?
  11. The above discussion primarily compares "Special Standards of Responsibility" and evaluation factors used in a best value, trade-off source selection. I have a question about "Special Standards of Responsibility" vs LPTA evaluation factors, which are also evaluated on a pass/fail basis. Under Simplified Acquisition Procedures, assuming the discriminating factors that you want to evaluate are responsibility type factors (e.g. Experience, Adequate Facility, Required Certification) is there a benefit to choosing one type of evaluation over another, i.e., Price only evaluation with Special Standards of Responsibility vs LPTA? I have not dealt with Special Standards of Responsibility much, but it seems that the general process would be similar and the outcome the same. For DoD organizations, the FY17 NDAA requires a limitation on the use of LPTA be included in the DFARS. Would changing LPTA evaluation factors into Special Standards of Responsibility (to the extent you can) be a way of maintaining a similar source selection process without having to deal with the limitations, justifications, and other hurdles that may be implemented in the DFARS? I know we can’t really answer that last question until we see what the regs say. But if anyone has ideas on the matter, I’d be interested in hearing them. Thanks.
  12. Lionel Hutz

    Court Order and the FAR

    I'm not sure if the psych exam example you provided is the issue that you are facing. But if it is, I just wanted to point out that DOJ receives a special appropriation for the Fees and Expenses of Expert Witnesses. Further, "Funding allocated to this activity is also used to pay the fees of physicians and psychiatrists who examine defendants upon order of the court to determine their fitness to stand trial." (https://www.justice.gov/file/969041/download) I know that doesn't directly address the question you raised. But, if you are working with DOJ there should be an established process in that office. There is no exception that would remove this acquisition from the FAR. As others have noted, a micro-purchase using a GPC would be pretty darn quick. However, if the cost exceeds the micro-purchase threshold (or even SAT) the procurement can still be conducted quickly. A sole source contract for expert services can be awarded pursuant to the authority of FAR 6.302-3(a)(2)(iii) (“to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute.”) If it is a recurring requirement, and you want to speed up the process, consider issuing a class J&A while maintaining a running list of qualified experts. For an example, see the SEC Division of Enforcement here: https://www.fbo.gov/index?s=opportunity&mode=form&id=f293c58f774e1e7b57e85d171881a1bb&tab=core&_cview=1
  13. Lionel Hutz

    Unreasonable Price

    Ah well, unfortunately, I do not have time for a proper response as an extra-long weekend is calling my name, and there is work yet to be done. I'll just say I disagree and return the courtesy of leaving you the last word. As always, thanks for the discussion!