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Iron Man

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  1. Disbursements may be made only on vouchers certified as to (1) the correctness of the facts in the certificate, voucher, and supporting documentation; (2) the correctness of computations on the voucher; and (3) the legality of a proposed payment under the appropriation or fund involved. 31 USC ? 3528. In my experience, the contracting officer is not the certifying official. This certification usually comes from the office that receives the goods/services. If the program office is responsible for certifying (or not certifying) the voucher, it should do so. Perhaps the program office is not shirking their duty but they have a good reason why the invoice should not be paid. Forcing the issue with the program office will ensure that all relevant facts (maybe even ones the contracting officer could not discover) has been properly considered. Finally, the concept of ?sufficient evidence? to support payment of a voucher is subjective. Every persons judgment is different, and what I consider sufficient may be different from the original poster?s. If the issue is reviewed by a third party (e.g., an IG, Board, Court), that third party may disagree and conclude there was not sufficient evidence to pay the voucher. In such a case, if I were a contracting officer, I would want the support of the program (and legal office) and not be in the unenviable position of having directed payment of a voucher without the certification of the program office that the goods were received or work was completed.
  2. I would not recommend paying an invoice without evidence that the work was done. Contact the contractor and ask for documentation or other evidence you can present to the program office to show that the work was, in fact, performed. If possible, contact former program office officials that might have knowledge of what was done. If, after gathering as much information as possible, there is sufficient evidence that the work was performed, the program office should certify that the work was performed. If the program office is unreasonable and refuses to certify the work was performed, then elevate the issue until you get to someone who is reasonable. The legal office may also be of assistance in convincing the program office in such a situation, as I am sure they don't want to have to defend a Board or COFC appeal where the evidence shows the work was performed. If there is not sufficient evidence that the work was performed, either from the contractor or the program office, then deny the invoice.
  3. When you say that German H&K firearms "are required for special ops," what do you mean? Does H&K make a class or type of weapon used by special ops that no domestic manufacturer makes? Or are H&K weapons viewed as technologically and/or mechanically superior to domestic versions?
  4. Actually, an LPTA procurement is part of the best value continuum. I believe the distinction you were trying to make is a Tradeoff Process (FAR 15.101-1) vs LPTA (FAR 15.101-2). I think GeoJeff was trying to point out what he views to be a general principle that applies to both types of procurements. Specifically, an offeror's price may be so high that it renders the proposal ineligible for award regardless of the technical merit or rating of the offer. In a tradeoff procurement, that will happen if, as GAO says, the "quoted price [is] too high in an absolute sense." In an LPTA that will happen if another technically acceptable proposal offers a lower price.
  5. Ha ha. That was exactly the point I was making in my post about the government's right to appeal the COFC. Did you get so caught up in my use of the word "rights" that you didn't notice that I was agreeing with you?
  6. I'd have to go back and read the cases more closely. It may well be dicta, but it isn?t always a bright line. For the purposes of an internet discussion board, I?m not sure it makes a difference. Dicta is often relied upon as persuasive authority even if it is not binding on a court. I pointed out two cases (out of hundreds) in which the appellate courts and the Supreme Court refer to and adjudicate the government?s right to do (or not do) something. I?d be surprised to find a case that stands for the position (whether as dictum or a holding) that the government has no rights. If you?d like a reference that is more clearly a holding, how is this one? ?The right of the government to the duties accrues, in the fiscal sense of the term, when the goods have arrived at the port of entry. The debt for the duties is then due, although it may be payable afterwards according to the regulations of acts of Congress. The debt due to the United States for duties on imported merchandise, is not extinguished by the giving of bonds, with surety, for the same. The revenue collection act of 1799, ch. 128, requires that the collector should take the bonds for the duties from all the persons who are the importers; whether they be partners, or part owners. The government of the United States have a right to retain money in their hands belonging to a surety in a bond given for duties which is unpaid, until a suit shall be terminated for the recovery of the amount of the duties on the goods due by the importers. The government is not obliged to appropriate the money of the surety to the satisfaction of the bond, but may hold it as a security until the suit is determined. Mr. Justice STORY delivered the opinion of the Court.? Meredith v. U.S., 38 U.S. 486, 491 (1839). Or how about a statute? ?Any mortgage, lien, or encumbrance created under the provisions of this section shall be subject to the rights of the Government to compel the enforcement of the terms of the lease or contract of the mortgagor, and any purchaser under a foreclosure of such encumbrance shall take subject to all the conditions assumed by the original lessee or contractor.? 16 U.S.C.A. ? 33
  7. I'll have to disagree. Government agencies do not have Constitutional civil rights, but that is not the entire spectrum of rights, which can arise out of constitutions, statutes, contracts, etc. The SCOTUS and Fed Circuit often refer to and enforce the Government's rights. See, for example, Caplin & Drysdale, Chartered v. U.S., 491 U.S. 617, 626 (1989), ?First, the property rights given the Government by virtue of the forfeiture statute are more substantial than petitioner acknowledges? and Gaylord v. U.S., 595 F.3d 1364, 1383 (C.A. Fed. 2010), "Whatever this agreement accomplished as between its parties, it cannot constitute a relinquishment of the government's rights under the contract or pursuant to 28 U.S.C. ? 1498(."
  8. The flaw in your argument is that you assume there is no possible alternative interpretation of the law and no other possible "floor." Have you read DOJ's memo supporting SBA's parity regulations as a permissible interpretation of the law? http://www.justice.gov/olc/2009/sba-hubzon...inion082109.pdf Personally, I think DOJ's argument is weak and the law as written, whether intentionally or not, provides HUBZone's with priority. However, DOJ's argument is not totally off the wall. I've certainly seen weaker arguments prevail in litigation. The government, or if you prefer the executive branch , has regulations and a long standing practice of parity, and it has a straight-faced legal argument it believes supports that practice and those regulations. An agency loss at GAO or the COFC is not the end of the process and the agency is not required to immediately abandon its position. If at the end of the appellate process MCS is successful, the Executive Branch will comply with the decision. However, there is a process for resolving different legal interpretations. Pursuing rights under that process is not wrong or evil, even when it is a federal agency pursuing those rights.
  9. Try reading beyond Junior High. I suggest GAO, COFC and CAFC opinions, where you will see an agency's argument is routinely referred to as the government's position or view. If you think use of the phrase "Government's view" is emblamatic of royalism, I don't know what to tell you, other than you are embarrassing yourself.
  10. How can this be a clear example of "royalist impudence and disrespect for the law," yet at the same time be an interesting issue with room for more than one view? I guess there is no room for the government's view? Or does that only apply when your view is being challenged?
  11. You can stop the faces by unchecking the box under the area where you draft your post that says "Enable emoticons?" If would be nice if having it unchecked was the "default" setting. However, until that happens you'll just have to manually do it.
  12. Good question, that statement is pretty vague. When a new solicitation is in the works, I recommend questioning those that developed the estimates regarding how they were established. If you are aware of information that would impact the estimates, ensure that the information has been considered. If necessary, ask to review the back-up data that was considered. If there was a previous contract for the same or similar item/service and the orders significantly exceeded (or failed to meet) the estimate, ensure that whatever lesson to be learned (if any) has been incorporated into the new estimate. Do not automatically accept the estimate at face value, especially if there is a history of poor estimates in that area. If you are comfortable that all relevant and available information was considered and the result is a good faith, reasonable estimate, then no problem. If you don?t come to that conclusion, then ask to have the estimates revised, or at least reviewed, based on your concerns. Of course, how successful you are may vary depending on your standing in the organization and your role in the process, e.g., contracting officer, program manager, agency attorney, or someone else.
  13. I recommend trying to hold feet to the fire when establishing estimates. Unfortunately, when some people know that they will not be bound by the estimates, they don't put much effort in developing them. I see too many estimates that are justified by a statement that says something similar to, "We used 100 last year, we anticipate ordering 100 this year." Past usage/ordering is helpful, but not always the last word. Have laws, regulation or policy changed that will affect a contract? Has usage been trending upward or downward? There are all sorts of factors that may influence an estimate. Take a look at the reason you are ordering double or triple the estimated quantities. Maybe that will give you some insight into what else you should be considering when establishing an estimate. If a good estimate is generated, but unforeseen circumstances result in an increase or decrease in the requirement, such a change could either help or harm the contractor depending on the circumstances. Such a risk is inherent in a requirements contract, and this risk, presumably, is factored into its offer.
  14. Unfortunately, where there is money to be made, there are fraudsters and scams. See GAO Report, "SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS PROGRAM Case Studies Show Fraud and Abuse Allowed Ineligible Firms to Obtain Millions of Dollars in Contracts" http://www.gao.gov/new.items/d10108.pdf
  15. DoD has already determined it is not in the public interest to apply the BAA to the listed "qualifying countries." See DFARS 225.872-1. "(a) As a result of memoranda of understanding and other international agreements, DoD has determined it inconsistent with the public interest to apply restrictions of the Buy American Act or the Balance of Payments Program to the acquisition of qualifying country end products from the following qualifying countries: Australia Belgium Canada Denmark Egypt Federal Republic of Germany France Greece Israel Italy Luxembourg Netherlands Norway Portugal Spain Sweden Switzerland Turkey United Kingdom of Great Britain and Northern Ireland"
  16. Update ? Pursuant to OMB/DOJ direction, the Army declined to follow GAO?s recommendation. Mission Critical Solutions subsequently filed a protest at the Court of Federal Claims. On Monday, the COFC published its opinion sustaining the protest. The COFC has interpreted the statute as providing a priority in favor of HUBZone small business program over the 8(a) program. The COFC also enjoined the Army's intended sole-source award.
  17. In my opinion, metal sole inserts are normally associated with boots and are covered. I think you should first look at the item itself and make the determination without regard to the materials that make up the item or component. With regard to boot soles, some have metal in the soles and some don't, but all boots have soles. I think the key is that adding metal simply adds to the purpose of the sole, i.e., protecting the bottom of the foot. Now, if the metal were put into the sole because it was spring loaded and would shoot out and stab someone (a la James Bond), then I think you would have to consider it a separate item that is not normally associated with clothing. But because this is really just a type of boot sole, all the materials and components that go into making that boot sole should be domestic.
  18. The other categories already cover food, fibers and fabric. Such an interpretation would render superfluous the category of "Clothing and the materials and components thereof..." It seems Congress clearly contemplated there could be non fiber (including metal) components to clothing, when it exempted from the Amendment "sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof)". So, there is a specific exemption for items that are not normally associated with clothing. However, if there is a component that is normally associated with clothing, e.g., belt buckle or steel toe, then that component is subject to the Amendment. My understanding is that the Berry Amendment is intended (at least in part) to support/protect the nations textile/clothing industry. To the extent a belt buckle or steel toe manufacturer is considered to be part of that industry (i.e., its product is normally associated with clothing), it is consistent with the Berry Amendment to make sure such components are domestic. Don't get me wrong. I'm not saying there might not someday be a legislative change to bring the statute and regs more in line with what you are saying. However, at this point, I do not think DoD can unilaterally decide not to apply the restriction.
  19. My apologies, I was looking at my latest print version, dated July 1, 2009. Should have known to check online. With regard to the original question, however, there is still no conflict between the clauses. 252.225-7012((2) applies to ?Clothing and the materials and components thereof,? while 252.225-7009 is used in contracts for ?(A) Aircraft. ( Missile or space systems. (C ) Ships. (D) Tank or automotive items. (E) Weapon systems. (F) Ammunition.? Just because 252.225.7009 restricts specialty metals for one category of acquisitions, doesn?t mean another clause cannot also restrict specialty metals (along with numerous other components/materials) for a different set of acquisitions. Absent more information, I don't think you can assume that by giving specialty metals its own clause, Congress or DoD intended all restrictions, other than 7009, to be rescinded?
  20. DFARS 252.225-7009 is in reserved status. DFARS 252.225-7014 now addresses specialty metals and, unless an exception applies, should be included in all "solicitations and contracts exceeding the simplified acquisition threshhold that requires delivery of an article containing specialty metals" (although there is an Alternate I clause to be used for aircraft, missile or space systems, ships, tank-automotive, weapons, or ammunition solicitations/contracts). See DFARS 225.7002-3(. In any event, can you explain a little more why you think they would conflict? 252.225-7014 may overlap with 252.225-7012 in some cases, but I don't see a conflict.
  21. Here is a link to the Federal Register with the interim rule: http://edocket.access.gpo.gov/2009/pdf/E9-553.pdf FAR 6.305 has been modified to include the requirement to publicize the J&A on Fedbizopps: http://www.arnet.gov/far/current/html/Subp....html#wp1086971
  22. No, it does not lead to regulatory anarchy. Here?s how it works. For the purpose of this discussion, we can divide regulations into four categories. Group 1 are regulations that clearly implement and comply with the language of a statute. Group 2 are regulations that implement statutes that are unclear, and the regulation is a reasonable interpretation. Group 3 are regulations that implement a statute that is unclear, and the regulation is a clearly unreasonable interpretation. Group 4 are regulations that clearly conflict with the language of the statute. The vast majority of regulations fall within groups 1 and 2, i.e., they either clearly comply with the language of the statute, or there is an ambiguity but the agency?s interpretation is reasonable. For Group 1 regulations, the matter is simple, follow the regulation. For Group 2 regulations, you can rely on Supreme Court precedent such as Chevron, which says that if there is ambiguity, the interpretation of agency charged with issuing and implementing the regulation should be given wide deference and therefore followed. If you can?t tell whether there is a conflict, i.e., you can see both sides of the argument, then the agency?s interpretation is not unreasonable and falls within Group 2. What we are left with are a very small fraction of regulations that fall into Groups 3 and 4, i.e., regulations that are clearly unreasonable or that clearly conflict with statute. Furthermore, some of these regulations only affect the general public and the agency that issue the regulation. In such a case, the agency that implemented the conflicting regulation is not going to ?challenge? its own regulation (it would just change the reg if it wanted) and other agencies are not going to challeng it because the reg doesn?t affect them. In this situation, the APA allows a member of the public with standing to challenge the regulation and have a judicial body overturn the regulation. (Of course, the public can challenge regs in Group 1 and 2 also, but they will be unsuccessful.) Now we are left with an even smaller subset of regulations that are clearly unreasonable or clearly conflict with the statute and also affect other agencies. In this case, the public could certainly challenge a regulation under the APA, but another agency cannot. DOD is not going to sue the SBA under the APA. What recourse is left for this minute fraction of regulations? Certainly, it is politically wise to try to work it out within the Executive Branch. However, in the meantime, each agency is still obligated to follow the language of the statute, not the regulation. Sorry for the longwinded explanation, but as you can see we are only dealing with a very small subset of regulations and asking an agency to give priority to statutes over regulations will not cause ?regulatory anarchy? because a genuine patent conflict is so rare. This issue is not just whether SBA regulations conflict with the FAR, but whether they conflict with that underlying statute. Your interpretation only works if you apply SBA regulations first and then the FAR, i.e., SBA regs establish parity first and then the FAR can further restrict to HUBZones. However, it is the statute that takes precedence and must be applied first, establishing priority for HUBZones. Once HUBZone priority is established by the statute, SBA regulations have no where to fit in this scheme. By trying to establish parity after the statute has given HUBZone's priority, the regs conflict with the statute. If the the statute did not say "shall" I would agree with you that agencies could further refine the priorities. But the statute makes HUBZone priority mandatory, and SBA's regs, no matter how promulgated, cannot preempt the statute. That is not true. In order to challenge the SBA?s rule in court, you must have standing, i.e., you must be directly affected by the rule. Furthermore, as noted above, an agency (or agency employee acting in his or her official capacity) that does not agree with the rule cannot challenge another agency under the APA. The agency may or may not have invoked the parity rule in its defense. I don?t know. But the SBA clearly raised the issue in its submissions and as part of the protest process. If SBA thought this was a strictly FAR 19.1305 issue, it could have said so and declined comment on the case. Once raised, however, it was appropriate for GAO to addresses it. Even if it wasn?t raised by SBA, I know of no rule that restricts GAO opinions only to the issues raised by the parties to the protest. In fact, 31 USC 3554((1) states, ?With respect to a solicitation for a contract, or a proposed award or the award of a contract, protested under this subchapter, the Comptroller General may determine whether the solicitation, proposed award, or award complies with statute and regulation. If the Comptroller General determines that the solicitation, proposed award, or award does not comply with a statute or regulation, the Comptroller General shall recommend that the Federal agency [recomplete, terminate the contract, etc.]? It does not say the Comptroller General should determine who has raised the better argument. Nor does it say the Comptroller General may only consider arguments raised by the parties. If there is a relevant statute or regulation, GAO should consider it and render an opinion. Finally, despite protestations to the contrary, GAO has not engaged in rulemaking. No new rules or regulations have been made, and no rules or regulations have been repealed. GAO?s opinion that the language of the statute takes precedence over the language of any conflicting regulations is established law and nothing new. GAO?s decision may have practical consequences with regard to how agencies conduct procurements, but then again that can be said about almost every GAO opinion. For purely selfish reasons, I?m happy with OMB?s course of action too. I have no direct stake in the matter and think it makes for great drama. I'm interested in how it will play out.
  23. I guess this is where we disagree. I believe every agency has an obligation to ensure that it follows statutes first and regulations second. It need not wait for a judge to strike down a regulation that is contrary to a statute before it refuses to follow the reg. Therefore, DOD had the authority to ignore SBA and follow the FAR and the statute. GAO opined that this is what the agency should have done and, in failing to do so, conducted a flawed procurement. If the statute were silent on the matter or were ambiguous and either regulation were a reasonable interpretation, then I would agree with you, the matter would be susceptible to being resolved internally at a higher level within the Executive Branch. However, if one regulation complies with the statute and one regulation is in conflict with the statute, there is nothing to be resolved. The regulation that is in conflict with the statute is not valid. You are assuming the SBA regulations are valid. If the statute says that HUBZones shall be given priority over other concerns, what authority does the SBA have to say HUBZones are merely of equal status? This seems to suggest that because the CO followed properly promulgated SBA regs, GAO should have denied the protest. Whereas this statement seems to suggest that GAO should have upheld the protest based on the CO's failure to follow the FAR. If you only look at individual parts of the issue you can come to such different conclusions. That is why GAO addressed both regulations and the statute in its decision.
  24. GAO should certainly consider whether a CO followed a regulation. And it may be true that few CO?s consult the US Code during an acquisition. However, if a regulation is contrary to the statute, ignorance of the statute and following the regulation does not make the action legal. The fact that a regulation was promulgated in accordance with the APA does not render it infallible. The statute always controls and is not waived simply because a conflict is not immediately discovered and remedied during the regulatory approval process. When there are conflicting regulations, as in this case, the proper legal approach is to consult the underlying statute(s) to determine whether the action was appropriate. If GAO had sustained the protest strictly based on a violation of FAR 19.1305, without any mention of the underlying and statute and SBA's parity stance, folks would be skewering GAO for ?ignoring? SBA?s regulations that would support a different outcome. I?m guessing GAO contacted SBA because it was aware that there are conflicting regulations, knew this decision would have larger implications, and wanted to let the reader know that such issues had been considered. I submit it would have been irresponsible to render an opinion that implicitly rejects an SBA regulation without first offering SBA a chance to comment. But ultimately, none of this goes to the issue of authority. GAO believes an agency conducted a procurement contrary to statute (15 U.S.C. ? 657) and regulation (FAR 19.1305) and said so in an opinion. As part of its analysis it noted there are conflicting regulations and stated it believes FAR 19.1305 more accurately reflects the intent of the statute. That is fully within its authority. GAO?s opinion does nothing, legally, to SBA?s regulation, and, if other agencies believe SBA is correct, they may continue to follow SBA?s reg, as OMB has advised.
  25. Congress gave SBA authority to promulgate regulations. However, no agency has the authority to promulgate regulations inconsistent with a statute it is trying to implement. When statute and regulation conflict, the statute controls, not the regulation. GAO has not overruled anything as it is not a judicial body and only offers nonbinding legal opinions (albeit opinions that carry a lot of weight). GAO has issued an opinion that, in this case, the regulation does not accurately implement the language of the statute and, therefore, should not be followed. In other words, GAO is recommending that the agency do what it already has the authority to do, ignore a conflicting regulation and follow the statute. If the Agency disagrees with GAO?s decision, they can refuse to follow the opinion and notify Congress of its refusal. If Congress really intends for their to be parity between the socio-economic programs, they shouldn?t have a problem with the agency?s decision and may even pass legislation clarifying that point. People may disagree with GAO?s legal interpretation of the statute and regulation, but I don?t see how it?s an authority issue.
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