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Don Mansfield

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Everything posted by Don Mansfield

  1. If by "viable" you mean "not prohibited", then the answer is yes. What do you mean by "named/identified"? Do you mean identified in the regulations?
  2. Have you considered an advance payment pool? See DFARS 232.470(a).
  3. I wrote about conflicts between the FAR and SBA regulations in the September 2015 Nash & Cibinic Report: This is a questionable position given that both the U.S. Court of Federal Claims and the GAO have viewed the SBA regulations as controlling when they conflict with the FAR. In C & G Excavating, Inc. v. U.S., 32 Fed. Cl. 231 (1994), 36 GC ¶ 599, the court dealt with a FAR rule that limited the scope of SBA review to those areas of responsibility identified as lacking by the CO when considering an application for a COC. The SBA regulations contained no such limitation. In resolving the conflict, the court stated: In Adams Industrial Services, Inc., Comp. Gen. Dec. B-280186, 98-2 CPD ¶ 56, 1998 WL 546000, 40 GC ¶ 460, the GAO sustained a protest where the agency, relying on FAR 19.302(j) (48 C.F.R. § 19.302(j) (1998)), argued that size protests received after award had no effect on the award—they only have prospective applicability. The GAO stated: See also Diagnostic Imaging Technical Education Center, Inc., Comp. Gen. Dec. B-257590, 94-2 CPD ¶ 148, 1994 WL 588043, 36 GC ¶ 609 (timely filed postaward size protest applied to instant award despite FAR stating that decisions on such protests have only prospective applicability). Thus, if a conflict exists between the FAR and the SBA regulations, it seems that a CO would be in the difficult position of having to deviate from the FAR to comply with the law as interpreted by the Court of Federal Claims and GAO. See FAR Subpart 1.4, “Deviations from the FAR.” [...] In C & G Excavating, the Court of Federal Claims stated: Having said that, I don't think its practical or reasonable to require COs to request deviations for every small business set-aside (what ji said). However, if the issue were protested, the GAO and the COFC would likely defer to the SBA regulations to resolve the conflict. But maybe not. In this case, there is a proposed rule in the pipeline to revise the FAR. In the cases I cited above there was a conflict that the FAR Council was ignoring.
  4. Some positions require that you be a member of the DAC. That's the only purpose I know of.
  5. Technically, I think the safest thing to do would be to request a deviation. That way, the CO would be compliant with the FAR, the NDAA, and the SBA regulations. However, I don't think it's practical for the contracting officer to ask for a deviation every time they're going to do a small business set-aside. I think a CO should take ji's approach. If someone protests, request a deviation.
  6. That's too long. I think we should make an acronym out of it while there's still time.
  7. When you refer to HTRFRP in speech, do you have do sound out each letter? Or can you say something like "HIT-ferp" or "HI-ter-ferp"?
  8. Yes, it is. Status of FAR Case 2016-011: It's only been a little over two years since the SBA published the change in its regulations, which implemented a section of the FY 2013 NDAA. You don't want to rush these things.
  9. Bob, Are you asking about the cutoff time for submitting the debriefing request?
  10. Shouldn't you determine whether what you are comparing to the lowest priced offer is comparable? Or do you just assume that it is?
  11. Assuming you are saying you can have adequate price competition using the "first LPTA discovered" method: (i) Agree (ii) Agree (iii) Agree
  12. It's not "irrelevant for our discussion". Vern seemed to be hanging his hat on FAR 15.404-1(b)(2)(i) in his scenario and I wanted to know if it was because he thought he had adequate price competition or because of some other reason. No, FAR 15.404-1(b)(2)(i) doesn't say anything about the validity of any method. It just lists examples of methods that can be used to conduct price analysis. Back to your method of comparing the proposed price for a technically acceptable product/service to proposed prices for products/services that you haven't technically evaluated, is there any consideration of the comparability of the products/services that you haven't technically evaluated? Or do you assume that they are comparable?
  13. For purposes of applying TINA it is. But in your scenario you want to hang your hat on FAR 15.404-1(b)(2)(i): So I ask again, did you get adequate price competition in your scenario?
  14. Not sure if you consider me a "naysayer", but as a selection method I don't see a problem with "first LPTA discovered". But that's not the issue we're discussing. The issue is whether the other proposed prices should be used as a basis of comparison in determining a fair and reasonable price. Ok, which one?
  15. Is comparison of proposed prices the only basis for establishing price reasonableness? Or are there others? Did you get adequate price competition?
  16. The problem I have with this approach is that you don't know if you would be making an apples-to-apples comparison. You have received several offers to provide apples. You have confirmed that one such offer is for something that meets the criteria for being an apple. You don't know if the other offers are for things that meet the criteria for being apples. You have no evidence that they meet the criteria for being apples, but you also have no evidence that they don't. You're comparing apples to something in a quantum superposition of being both apples and not apples. Why would it be reasonable to assume that they are apples? Because you asked for apples and received several offers to provide apples?
  17. This is a remarkable case if I'm reading it correctly: AeroSage, LLC, B-416381, August 23, 2018. DLA issued an RFP that contained ten line items, two of which were each estimated to be below $150,000. The aggregate of all 10 line items was greater than the simplified acquisition threshold (SAT). Award was to be made on a line item by line item basis. DLA issued the solicitation on an unrestricted basis based on the conclusion that two or more small businesses could not perform the entire contract and that the nonmanufacturer rule (NMR) applied (NMR does not apply below the SAT per 13 CFR 121.406(d)). A small business concern protested that the two line items below $150,000 should have been automatically reserved per for small business per FAR 19.502-2(a) and that the NMR did not apply to those line items. GAO asked for SBA's interpretation. SBA said that, when award is to be made on a line item by line item basis, the Rule of Two analysis should be made at the line item level. Also, the NMR is to be applied at the line item level. GAO deferred to SBA's interpretation of its own rules and sustained the protest.
  18. Even without knowing whether the other proposals were technically acceptable?
  19. I looked for evidence a few years ago for a presentation on the subject. I couldn't find anything. All I have is a third-hand anecdote of NAVFAC assessing liquidated damages. I think Carl is referring to the small business participation plan that a small business would have to submit in a full and open competition.
  20. Fine, but I think you're presenting your assertions as if they were facts. That's what Merriam-Webster defines as dogmatism. As far as the use of commit at DFARS 215.304(c)(i), I think that could be evaluated by requesting evidence of commitment to include small business concerns in performance. Such evidence could be subcontracts contingent on contract award, joint venture agreements, and teaming agreements. I think your interpretation of "commit" as used in DFARS 215.304(c)(i) is too narrow.
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