Lionel Hutz

When deobligating funds and closing out a contract, unless the government is making a payment or waiving some contractual requirement as consideration for the release of claims, the government will have a hard time enforcing any release signed by the contractor. See, e.g., Supply & Service Team GmbH, ASBCA No. 59630 (March 1, 2017), ("Moreover, SST received nothing from the government from its agreement to sign these de-obligation modifications, which means that that they lacked consideration and they could not be deemed to be binding upon SST in any event.") I know that doesn't answer your question and you will have supervisors and policy memos that tell you to try to get a "bilateral" mod to deobligated funding. But, from an enforceability standpoint, they are both administrative actions/notifications by the government that are not binding on the contractor. It's just that in some cases you get the contractor to acknowledge that you have deobligated funding, and in other cases you don't.

You've received good advice. I'll just add one more thing for application of this and other E.O.s in the future - make sure you are using and interpreting the correct terminology. You've asked whether contractors whose contract period of performance have expired are "still incumbents." Incumbent means, "holding an indicated position, role, office, etc., currently." This has led to your question. Is a company, whose contract period of performance has expired, considered an incumbent, i.e., current, contract holder? However, the word incumbent does not appear anywhere in the E.O. Rather, the order states, "When a service contract expires, and a follow-on contract is awarded for the same or similar services, the Federal Government’s procurement interests in economy and efficiency are best served when the successor contractor or subcontractor hires the predecessor’s employees, thus avoiding displacement of these employees." (Emphasis added.) It then directs inclusion of a clause in solicitations, contracts and subcontracts for services "that succeed a contract for performance of the same or similar work." In part, the clause requires the contractor to provide the contracting officer with a list of names of contractor employees working during the last month of contract performance. So, there is no requirement that there be uninterrupted service, only that the contracting officer determine that the contract is a follow-on for same or similar services. Barring guidance from the FAR Council or agency regulations, I would expect such a determination to be made on a case by case basis within the discretion of the contracting officer, subject to a protest that the determination is unreasonable. Also, keep in mind that unless the existing (or recently completed) contract has a clause requiring the contractor to provide a list of names, the government might not have a list of contractor employees to give to the successor contractor, and the existing contractor is under no obligation to provide the information.

It is listed here: https://www.acq.osd.mil/dpap/pacc/cc/COVID-19.html

Two interesting (to me) points from the opinion: (1) While the court enjoined the vaccine mandate, the injunction stated that the OMB Determination and FAR Council Guidance likely complied with the APA and 41 U.S.C. § 1707, stating "Although the procedural path taken by the agencies was, at times, inartful and a bit clumsy, the Court finds based on the record before it that the Defendants likely followed the procedures required by statute." (2) The court found the EO exceeded the president's authority under the FPASA stating, "FPASA’s goal is to create an 'economical and efficient system for…procurement and supply.' Kahn, 618 F.2d at 788 (emphasis added). While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination." It also states, "neither OSHA nor the executive branch is permitted to exercise statutory authority it does not have.... In this case, the FPASA was enacted to promote an economical and efficient procurement system, and the Defendants cannot point to a single instance when the statute has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors." In other words, FPASA is a statute aimed at promoting economical and efficient procurement system, and the E.O.'s vaccine mandate is a "public health regulation" that exceeds the scope and purpose of the statute. However, later in the opinion, the court rejected the plaintiff's argument that improving procurement efficiency was pretextual and stated, "the subsequent OMB Determination provided ample support for the premise that a vaccine mandate will improve procurement efficiency." Putting these two points together, the Court seems to be saying that the the government has offered ample support that a vaccine mandate will improve procurement efficiency (which meets the intent and scope of FPASA) and that the government likely followed the administrative procedures required by statute to implement the mandate. However, because the mandate ALSO involves implementing public health measures, the mandate exceeds the government's authority under the FPASA. I think the Court's statement that "Defendants cannot point to a single instance when [FPASA] has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors," is a red herring. FPASA was passed in 1949. How many global pandemics have we faced since that time? The lack of examples has less to do with the scope and authority of FPASA and more to do with the lack of a public health emergency that could even rise to the level of potentially impacting procurement efficiency. I make no prediction as to the final outcome. But I am interested to see if an appellate court will find that an E.O. issued under and facially compliant with FPASA exceeds the scope of FPASA because it also involves matters of public health.

In addition, the Safer Federal Workforce Task Force guidance specifically calls out Cooperative Agreements as being included. It defines contract and contract-like instruments to include (among other instruments): https://www.saferfederalworkforce.gov/downloads/Draft contractor guidance doc_20210922.pdf

"You miss 100% of the shots you don't take. - Wayne Gretsky" - Michael Scott

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.)

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!)

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.

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.

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:

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.

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.

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.

Joel, thank you! That was it. Guess I was wrong about the time frame.

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!

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.'"

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.

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.)

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.

A -8 modification is under the terms of, and authorized by, the predecessor contract. It is explicitly continued performance of the old contract, not an override of the stay and performance of the new contract. However, a bridge contract awarded to the proposed awardee may be considered a de facto override of the stay if the bridge is for the same services and under the same or substantially similar terms as the protested contract and the bridge reduces the length/value of the protested contract. Access Sys., Inc. v. United States, 84 Fed. Cl. 241, 243 (2008) ("This case is therefore unlike traditional override cases in that we are asked to decide whether the bridge contract represents the functional equivalent of an override. We have not been presented with any decisions discussing this question, but in our view the relevant question is whether the bridge contract shares the same character or function as a formal override and, thus, whether the bridge contract could prejudice plaintiff in its protest before the GAO or in subsequently performing the work if it is successful in its protest.")

No. In my experience, the gap in services caused by a protest is usually bridged by exercising the Option to Extend Services under FAR 52.217-8. In fact, FAR 37.111 specifically cites delays in award due to a protest as one of the reasons to include and exercise the -8 option. If the -8 clause is not in the contract, or all six months of the option period have been performed, the agency cannot automatically extend performance through a bridge modification/contract. First, it must determine whether there is sufficient time to compete the "bridge" requirement and potentially bring in a new contractor without resulting in a break in service. If there is not sufficient time, the agency may issue a sole-source extension of the existing contract supported by the appropriate J&A/memo limiting competition. Seavac Int'l, Inc.-Reconsideration, B-231016 (Sept. 19, 1988) ("The sole-source extension of an existing contract, pending the outcome of a competitive procurement, is justified where ongoing needed services otherwise would be interrupted, the agency reasonably decides that only the incumbent can meet its needs with respect to timeframe, and the extension was not caused by a lack of advance planning.") If there is sufficient time to compete the bridge requirement and bring in a new contractor without a break in service, then the bridge requirement should be competed.

Perhaps McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1331 (Fed. Cir. 1999)?

Generally, no, the vendor is not required to demonstrate that the brand name conforms to the salient characteristics identified by the government. The brand name is presumed to comply. CAMSS Shelters, B-309784 (Oct. 19, 2007) ("In contrast, with respect to an offer of the brand name item, absent certain provisions in a solicitation that impose additional requirements applicable to the item, an agency can reasonably accept a brand name offer and make award without further investigation. See, e.g., General Hydraulics Corp., B–181537, Aug. 30, 1974, 74–2 CPD para. 133 at 2 (brand name item properly rejected where solicitation expressly required additional features applicable to the item).")

Good thoughts, but just a couple caveats to consider: 1) An incumbent will only get an extra 100 days of profit if they protest on the last day of the contract. If the government awards a follow on contract 2 months before the end of the existing contract, then the incumbent will only get an extra 40 extra days. Focusing on awarding a contract with adequate lead time for a new contractor to prepare for performance (especially on $100M+ contracts) will reduce the monetary benefit provided by a stay of performance. 2) Agencies frequently take corrective action, not because they have no chance of winning, but because taking corrective action is easier and faster than litigating the case. Denying fees if the protest is dismissed, but granting them if the agency takes corrective action heavily incentivizes the government not to take corrective action. This will significantly increase protest litigation creating more work for the agency, contractors, and the GAO.