Jump to content
The Wifcon Forums and Blogs

Don Mansfield

Members
  • Content Count

    2,355
  • Joined

  • Last visited

Everything posted by Don Mansfield

  1. pmh, Does this help? 45.000 Scope of part. This part prescribes policies and procedures for providing Government property to contractors, contractors? management and use of Government property, and reporting, redistributing, and disposing of contractor inventory. It does not apply to property under any statutory leasing authority, (except as to non-Government use of property under 45.301(f)); to property to which the Government has acquired a lien or title solely because of partial, advance, progress, or performance-based payments; to disposal of real property; or to software and intellectual property. [italics added].
  2. Don Mansfield

    Price Based on Adequate Competition

    Sure, let me give you an example. Let's say last year I had a competitive procurement for the purchase of 1000 widgets. Three responsible offerors, competing independently, submitted priced offers that satisfied the Government?s expressed requirement, award was made to the offeror whose proposal represented the best value, price was a substantial factor in source selection, and there was no finding that the price of the otherwise successful offeror was unreasonable. In other words, I had adequate price competition pursuant to FAR 15.403-1©(1)(i). The contract price was $700,000 ($700/widget). This year I have the same requirement for 1000 widgets. Instead of having a competition, I'm going to do a HUBZone sole source to Contractor A in order to help meet my agency's small business goals. I receive a price from contractor A and price analysis clearly demonstrates that the proposed price is reasonable in comparison with the contract price for last year's contract, adjusted to reflect changes in market conditions, economic conditions, quantities, and terms and conditions. In other words, I have adequate price competition pursuant to FAR 15.403-1©(1)(iii). Make sense?
  3. here_2_help, That's a good point. However, the Cherokee cases involved "contract authority" to obligate appropriations, not "budget authority." I don't know if the result would necessarily be the same when dealing with budget authority (which I assume is charles's case).
  4. I don't know the answer, but I would be inclined to choose Vern's possibility #3. My reasoning is as follows: The Government can only be bound by contracting officers acting within the scope of their authority. A CO who violates the law is acting outside the scope of his/her authority. As such, the Government cannot be bound by a contract that the CO entered into by violating the law. In this case, I believe that the CO has entered into an unauthorized commitment.
  5. Don Mansfield

    Federal Contracting Myths

    dgm, Prior to the FAR Rewrite in 1997, FAR 15.608(a)(2)(iii) contained the following statement: "Firms lacking relevant past performance history shall receive a neutral evaluation for past performance." The FAR Council decided to change this wording in the FAR Rewrite based on some confusion as to what a neutral evaluation actually meant. Here's an excerpt from the Federal Register (62 FR 51224-01): "(f) Neutral past performance evaluations. We considered alternatives relating to two aspects of neutral past performance ratings-- (1) Definition of neutral past performance evaluations. The proposed rules provided a definition of neutral past performance evaluations. Public comments recommended that we revise the definition and provide detailed instructions on how to apply neutral past performance ratings in any source selection. 41 U.S.C. 405(j)(2) requires offerors without a previous performance history, to be given a rating that neither rewards nor penalizes the offeror. We did not adopt the public comment recommendations, opting instead to revise the final rule to reflect the statutory language, so that the facts of the instant acquisition would be used in determining what rating scheme is appropriate. This alternative provides for flexible compliance to satisfy requirements of the statute."
  6. Don Mansfield

    contract type again

    contractor100, You asked: "Does a schedule holder that does not sell any fixed price services or supplies ever have to accept an order?" I would say yes, the schedule holder still has to accept orders. Theoretically, an agency could issue an unpriced order requiring the contractor to begin work and then definitize the order later.
  7. Don Mansfield

    BAA vs. PRDA

    Scjet, That's a distinction that DARPA makes, but that is not true as a general proposition. An agency can have a BAA and award nonprocurement instruments only.
  8. Don Mansfield

    Price Based on Adequate Competition

    whynot, Yes, it's possible (and likely) that adequate price competition could result from FAR 6.102(d)(3), but that is not necessarily so. There's nothing in the regulations that support the assertion that GSA prices resulted from adequate price competition, per se.
  9. Don Mansfield

    Price Based on Adequate Competition

    whynot, CICA --> "full and open competition" --> FAR Part 6 TINA --> "adequate price competition" --> FAR Part 15 Two different (unrelated) things. You can have "full and open competition" and not have "adequate price competition." You can have "adequate price competition" without any competition at all (i.e., in a sole source acquisition).
  10. Don Mansfield

    Price Based on Adequate Competition

    While you can assume that GSA has determined its schedule prices to be fair and reasonable, I don't know what basis there is in the regulations to assume that the prices necessarily resulted from adequate price competition.
  11. Don Mansfield

    contract type again

    Carl, formerfed took the words out of my mouth. Unlike a purchase order, a task or delivery order under a Federal Supply Schedule is not an offer by the Government that the contractor can decline. I honestly don't know the legal effect of a FSS contractor's response to an agency's task or delivery order solicitation. What happens if a FSS contractor responds with a price that is less than the schedule price, then changes his/her mind? We know that they are contractually bound by the schedule price, but are they bound by the price with which they responded to the task or delivery order solicitation? If the answer is yes, then I would say that the response was an offer. If not, then it was a quote.
  12. Don Mansfield

    contract type again

    formerfed, Yes, I know. The FAR talks about RFQs and the DFARS talks about solicitation of offers. I don't know what the right answer is.
  13. Don Mansfield

    Federal Contracting Myths

    Vern, I read stanretired's post as implying that a CO could not (as in the CO does not have the authority) extend a delivery date without obtaining new consideration. I was simply pointing out that a CO does have that authority. I agree with you as far as what a CO should do.
  14. Don Mansfield

    Federal Contracting Myths

    Stanretired, I think that you can extend the delivery date without obtaining consideration, too. Here's something I wrote in another thread: Lastly, a contracting officer is not necessarily required to obtain new consideration if he/she establishes a new delivery schedule. See Administration of Government Contracts, Fourth Edition, p. 965, quoting Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA P 11,332: "It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do." [italics added].
  15. How would you justify that your situation was not the result of a lack of advance planning by the requiring activity?
  16. Don Mansfield

    contract type again

    carl, Why do you think that DoD is wrong in using an RFP? DFARS 208.405-70© discusses the receipt of offers, not quotations.
  17. "You can't be distracted by the noise of misinformation." -James Daly In my career as a contracting professional and now an educator, I have come to appreciate the growing body of misinformation in Federal contracting. Contracting misinformation is pervasive. You can see it in the popular press, periodicals dedicated to the contracting profession, in posts at the Wifcon forum, internal policy memoranda at a Government agency, etc. As I'm writing this, somewhere a senior contracting professional is imparting misinformation on a newbie, and the newbie is believing him. A certain amount of misinformation is understandable in Federal contracting, given the volumes of regulations and case law that govern Federal acquisition. I can accept that (it keeps me employed). However, certain contracting misinformation seems to resist any efforts to eradicate it. This class of misinformation has its origins in the operational contracting offices of the Federal Government and is usually created in the form of rules that have no basis in law or regulation, but sound like they do (especially when spoken by senior contracting professionals, legal counsel, or contract policy office personnel). It is this class of misinformation that is most aptly described as contracting "myth-information." As a service to my profession, I will attempt to bust some of the more popular contracting myth-information that I have heard. I've created my own list of myth-information and am collecting more from participants in the Wifcon discussion forum (thank you to those that have contributed). I'll try to debunk at least one myth per blog entry. If you think you have heard some contracting myth-information and would like to share with others, please contact me and I will include it in the blog. Think of the blog as a clearinghouse for busted contracting myth-information.
  18. Don Mansfield

    Federal Contracting Myths

    Gort, Of course, you could create fact-specific scenarios to make those statements true. However, many people believe some or most of these statements to be true as general propositions. They don't see the "shades of gray." As you learn more about earthlings, you will understand.
  19. Don Mansfield

    Federal Contracting Myths

    Yes, I plan to.
  20. Don Mansfield

    Federal Contracting Myths

    Gort, For example? Barada Nikto.
  21. Don Mansfield

    Federal Contracting Myths

    Person without a clue (acronym coined by Vern).
×