Lionel Hutz

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About Lionel Hutz

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  1. I'm not saying its prohibited, and I do not know what a court would decide. But, that would not be my practice. I just don't see the benefit and only potential downside. What if the contractor does object and the contracting specialist misfiles the letter, or the contracting officer forgets, or someone else does the debriefing? What if the contracting officer usually uses such a statement in the solicitation but the statement mistakenly gets deleted without his/her knowledge? If you really want to include line item/unit pricing in the debriefing, why try to rely on some type of an implied waiver that a court may or may not recognize? Simply and directly ask the awardee whether its pricing is confidential and/or a trade secret? The difference in treatment is in the language of the regulations. Part 14 requires the public reading of items and prices. Conversely, Part 15 debriefing procedures prohibit release of information exempt from disclosure under FOIA, including at times line item pricing. Whether that makes sense from a policy perspective, is a different question.
  2. I agree that in the context of a FOIA request you should not assume a unit price is, or is not, exempt. Redacting otherwise releasable information can lead to a FOIA law suit. That is why the FOIA regs provide for the submitter notice process where the third party gets to assert whether or not the info is trade secret/confidential business information. But in the context of a debriefing, there is no required submitter notice process. Nor do I think such a requirement should be added to the debriefing process. I've seen the "notice of intent to disclose unit pricing" in some solicitations. However, I would not want to be in the position of having to argue, without any affirmative statement by the contractor, that the contractor waived its statutory rights under the Trade Secrets Act. I'm not saying it wouldn't work, but until I see a see a federal court decision upholding such an implied waiver, you are risking potential financial liability. If you release unit pricing that is protect by the TSA, you have violated a statute with injuntive and monetary remedies (however unlikely it may be that they would be assessed). If you withhold unit pricing that turns out not to be confidential/trade secret, there is a much less risk/dowside. The adequacy of a debriefing is not a protestable issue.
  3. I agree that when the unit price can be calculated by simply dividing a known unit quantity by the total contract price, then the unit price should not be treated as confidential or a trade secret. But, I don't agree with this example: In that case, (if I'm reading the example right) the total contract price is $6.6M. However, is not immediately clear to an outside party how much of that total is attributable to the "cost" portion and how much to the "fee" portion. The amount of fee a contractor negotiates/charges for any given work could be a trade secret and could certainly cause economic harm should it be divulged to a competitor. The FAR states that the debriefing shall include "the overall evaluated cost or price (including unit prices)..." FAR 15.506 (d)(2). But, that section also states, the debriefing shall not reveal any information exempt from release under FOIA, including "Trade secrets" and "Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information..." FAR 15.506(e). Read in context with each other, I conclude that unit pricing should be included in a debriefing unless it would be considered a trade secret or confidential commercial or financial information. Unless the unit pricing is immediately apparent (the first example here) or otherwise publicly available (on the contractor's website or marketing materials for example) a contracting officer should presume that unit pricing is confidential commercial or financial information and should not include it in a debriefing. (Of course, if you really want to include such info in the debriefing, you could contact the contractor and ask them whether they object to the disclosure of the unit pricing. But, I don't think that is necessary, and the contractor is unlikely to consent anyway.) Finally, whether or not unit pricing has been released in a debriefing is not controlling when determining whether it should be released in response to a FOIA request. An accidental or improper release of unit pricing to one party in a debriefing does not absolve the Government of its responsibility to guard against future public release of confidential contractor information.
  4. If the solicitation only called for services to be performed at a minimum service level, then there is no set number of people that must be provided. It is up to you to determine the number of people needed to perform the services at (at least) the minimum level. If you can clearly and realistically demonstrate how the services can be provided at the minimum service level with fifteen people (or 10 or 6 or 1), your proposal should be found technically acceptable. If there was a minimum number of people required, that should have been stated in the solicitation. If an offer that otherwise met the criteria for providing the services at the minimum service level was found unacceptable based on an unstated criteria of x number of people, that would be a protestable issue. However, offering more people than you need because you think there is an unstated minimum and then losing because you are not the lowest price is not protestable. Follow up with the contracting officer. If you have not been given an opportunity to ask questions, point out that FAR 15.506(d) states, "At a minimum, the debriefing information shall include- ... (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations,and other applicable authorities were followed." Directly ask if there was a minimum number of required people to be considered acceptable. However, in the end, the adequacy of a debriefing is not a protestable issue (at least at GAO). On the next similar procurement, ask the contracting officer prior to submitting your offer whether there is a minimum number to be considered acceptable. If you get a cryptic response in return, you will have to decide how much of a thorn you want to be. If you are getting shut out of awards and communication is not forthcoming, you may decide you have nothing to lose. If so, follow-up and explain that he/she has not answered the question. I'm sure people will disagree, but I find that when an offeror includes a statement along the lines of "I do not want to have to file a protest to get an answer," it does wonders in getting a more forthcoming response.
  5. Well, that's the grammatical intent. I doubt most readers, including myself, would make a conscious distinction between the two. Personally, in a longer piece of writing, I prefer to mix longer and shorter sentences because I think it creates a better "flow" to my writing. But that does not make another approach wrong. I assume you're joking. Either way, although I have read the New Yorker, I am not a regular reader. I think everyone here can attest to the fact that you are an effective writer. Rules of grammar are meant to assist a writer clearly convey thoughts; they are not immutable laws of science. Once you’ve reached a certain point of literacy in your writing, blindly adhering to a rule of grammar simply for the sake of following a rule seems silly. I ignore rules of grammar all the time, both knowingly and unknowingly.
  6. I'll play along. Use a semicolon if you want to create a link between the two statements, usually when the statements are related to or contrast with one another. For example, I run five miles every morning; it invigorates me and prepares me for my work. Each of those statements could be its own sentence; however, by using a semicolon I've gramatically reinforced the relationship between the act of running and the invigorating benefits.
  7. Well, as we all know, the semicolon's most important use is in the "winky face" emoticon. ; ) But, when it comes to lists, if any of the items in the series contain a comma, separate the items with a semicolon. I invited Vern; Bob, who is Vern's friend; and Don to the St. Patrick's Day party.
  8. The Associated Press Stylebook omits the Oxford comma. Neither is "right" nor "wrong," it is a matter of style. If your meaning is ambiguous, the ambiguity can be clarified by either using the Oxford comma or rearranging the sentence to clarify the meaning. Opposition to the use of the Oxford comma is often partly based on the opinion that too many commas impede the flow of the sentence. For example, journalist, humorist, and playwright James Thurber preferred writing "the red white and blue" to "the red, white, and blue." In a letter to Harold Ross, the founding editor of the New Yorker, he stated, "All those commas make the flag seem rained on. They give it a furled look. Leave them out, and Old Glory is flung to the breeze, as it should be." In technical and legal writing, where clarity should trump style, I would use the Oxford comma. In other writing, if someone thinks the sentence reads better without it, go for it.
  9. From a practical standpoint, I think it is included to spur the contractor to raise any claims sooner rather than later. A contractor has 6 years to file a claim, and the longer it waits to submit one, the more difficult it is for the government to negotiate, settle or litigate. (Files disappear, people change jobs, etc.) Whether a release of claims in a mod to deobligate funds is actually enforceable is a different question. In my opinion, a modification that only deobligates excess funds does not affect the rights and obligations of the parties. If a contractor has the right to be paid under the contract, that right exists irrespective of whether the government changes or deobligates the funds on the contract. Similarly, an improper recording of funds does not create a contractual right. Therefore, a stand-alone deobligation of funds modification should be considered an administrative modification carried out so that the government can reconcile its fiscal books. With regard to Commercial Item Contracts, 52.212-4(c) only provides that “Changes to the terms and conditions of this contract…” must be bilateral. In my opinion, a statement in the contract about the government’s funding source, which is not binding on either the government or the contractor, is not a term or condition of the contract. Therefore, a unilateral modification is appropriate and Block 13 B should be checked for the authority.
  10. Unless the contract language specifically provides otherwise, there is not a recurring minimum every time an option is exercised. See Varilease Technology Group, Inc. v. United States, 289 F.3d 795 (Fed. Cir. 2002) (emphasis added).
  11. That's not true. The ADA imposes prohibitions at the appropriations level (31 U.S.C. § 1341(a)(1)(A) and (B)), at the apportionment level (31 U.S.C. § 1517(a)), and at the formal subdivision level (31 U.S.C. § 1517(a)). So, a violation at any of those levels would be a violation of the ADA.
  12. Is it this one?
  13. If there was no contract and no one in the Government ordered services such that a ratification is appropriate, but the Government still received the benefit of the services, then the contractor may have a claim arising out of Quantum Meruit. Such claims used to be settled by GAO, and if you check Comp Gen decision you will find old decisions laying out the basis for deciding a claim based on Quantum Meruit. In 1995-96, Congress transferred authority to settle general claims to OMB. OMB has since delegated much of that authority to the Executive Agencies. If you are in DoD, that authority now rests with the Claims Division at the Defense Office of Hearings and Appeals. You can find more information here: I recently dealt with a situation similar to the OP's, and dealing with this office is not a quick process. It was a relatively straight-forward claim that the Agency agreed should be paid. After all documentation was submitted, it took about a year for them to issue an opinion granting authority to pay based on Quantum Meruit.
  14. FAR 15.305(a)(2)(i) describes a Past Performance Evaluation as a “…comparative assessment of Past Performance Information…” FAR 42.1501 then describes Past Performance Information as follows: (a) Past performance information (including the ratings and supporting narratives) is relevant information, for future source selection purposes, regarding a contractor’s actions under previously awarded contracts or orders. It includes, for example, the contractor’s record of— (1) Conforming to requirements and to standards of good workmanship; (2) Forecasting and controlling costs; (3) Adherence to schedules, including the administrative aspects of performance; (4) Reasonable and cooperative behavior and commitment to customer satisfaction; (5) Reporting into databases (see subpart 4.14, and reporting requirements in the solicitation provisions and clauses referenced in 9.104-7); (6) Integrity and business ethics; and (7) Business-like concern for the interest of the customer. You said, “We are asking contractors to submit samples of work (audit reports) that they have previously performed to be evaluated under past performance.” It is unclear whether you mean the PP rating will be based solely on an evaluation of the sample work, or whether that sample evaluation would be one of many factors to be considered in establishing the rating. An example of a work product may give you some insight into the offerors level of “workmanship” (i.e., (a)(1)). It may also help a contracting officer determine the relevancy of that effort to the proposed work. But, it provides little to no information with regard to the many other factors that should go into an overall Past Performance Evaluation. Therefore, I think a PP evaluation that only considers a snapshot example of “workmanship” would be insufficient. However, I am not aware of any prohibition on requesting and considering such information as part of a larger overall PP evaluation.
  15. This. I don't think a $350 fee will affect overall year end numbers. But I do think it will deter some contractors/firms that have essentially made filing cut and paste protests a hobby.