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Don Mansfield

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Everything posted by Don Mansfield

  1. Vern, No, I haven't. I'll give GAO a call and let you know what happens.
  2. I contacted the chief of the contracting office that received the protest to clarify the facts of the TYBRIN case. He told me that CENTECH's proposal did not contain an express provision stating that it intended to perform less than 50% of the cost of the contract work. This was inferred from information contained in their cost proposal. Further, the work percentages that would be performed by the prime and subcontractors were not "accepted" by the Air Force in the sense that they became part of the contract (i.e., they were informational, not promissory).
  3. dwgerard, You wrote: I read this as decades of Government incompetence, not as an example of bad behavior on the part of the contractor. Why didn't the Government determine the contractor nonresponsible if it was lowballing its quotes? Why didn't the Government evaluate price realism to protect itself from this practice? If an offeror chooses to buy-in, what do you think the offeror has done wrong?
  4. I don't see a problem with it. Many agencies require offerors to have their past customers complete past performance surveys so this information can be used in source selections. Asking for a letter of recommendation would be the same thing.
  5. I don't agree that "The language of the decision clearly indicates that there was more to this than a conclusion derived from the analysis of numbers in a cost estimate." However, I will take your advice and contact someone knowledgable about the decision. I'll let you know what I find out.
  6. Vern, You wrote: Do you mean that there was a part of the proposal (other than the cost estimate) that stated that the offeror did not intend to perform 51% of the work, and that part of the proposal became part of the contract? If so, then I don't know how you reached that conclusion based on the passage you cited from the case. If that's not what you mean, then I don't know what you mean.
  7. In TYBRIN Corporation, B-298364.6; B-298364.7, March 13,2007, the GAO held that an offeror's cost estimate that indicated that it would not perform 51% of the contract work on a small business set-aside rendered the offer unacceptable, even though the offeror did not explicitly take exception to the solicitation's limitation on subcontracting clause (FAR 52.219-14) and the SBA granted the offeror a certificate of competency. The GAO reasoned as follows: As a result, the Air Force reopened discussions with offerors and sought revised proposals. This action was unsuccessfully challenged in the Court of Federal Claims (see The Centech Group, Inc., v. U. S. and Tybrin, Inc., 07-513C, Filed December 7, 2007, Refiled December 13, 2007) and unsuccessfully appealed to Court of Appeals for the Federal Circuit (The Centech Group, Inc., v. U. S. and Tybrin Corporation, No. 08-5031, February 3, 2009). Thus, it would seem that we have a general rule that if information in a cost estimate indicates that an offeror will not comply with a material term of a solicitation, then the offeror has implicitly taken exception to that term of the solicitation, which would make their offer unacceptable (or nonresponsive). However, in Group GPS Multimedia, B-310716, January 22, 2008, the opposite conclusion was reached. In that case, the successful offeror submitted a cost estimate that contained a proposed labor rate that was below the labor rate stated in the Department of Labor Wage Determination (the contract would be subject to the Service Contract Act). The protester argued that this gave the awardee an unfair price advantage. The GAO held as follows: This raises several questions. Why wouldn't a cost estimate that contains proposed labor rates below the SCA-minimum labor rates render an offer unacceptable, but a cost estimate that shows an offeror performing less than 51% of the contract work on a small business set-aside would? In neither circumstance does the cost estimate indicate compliance with a material term of the solicitation (the Limitation on Subcontracting clause and the Service Contract Act, respectively). Yet, we have different results. Is compliance with the Limitation on Subcontracting clause a special case? If so, why? Or is proposed compliance with the SCA (as evidenced in a cost proposal) a special exception to the rule? If so, why? Any ideas?
  8. Then I don't know why we disagree. My position was that the FAR permits the approach that Vern proposed and does not require that the solicitation state anything special (other than what's required by FAR 15.101-2). Whether or not it's a good idea to announce your intent to use the Economical LPTA approach is a different issue.
  9. Vern, You may have already considered this, but FAR 15.305(a)(3) only requires an assessment of each offeror's ability to accomplish the technical requirements of the solicitation when the tradeoff process will be used: If this requirement applies to LPTA, then why would it specify "when tradeoffs are performed"?
  10. I don't understand your argument. Are you saying that FAR 15.101-2 precludes the use of an Economical LPTA unless such an approach is stated in the solicitation? Or are you saying that you think it's a good idea to state that you are using the Economical LPTA approach in the solicitation?
  11. In a remarkable statement issued today, the Government Accountability Office (GAO) apologized to the Department of Defense for what it called "decades of unwarranted and unsubstantiated criticism." The admission came in the wake of the release of a March 2009 GAO report titled Defense Acquisitions: Assessments of Selected Weapon Programs that claims that for 2008 programs, research and development costs are now 42 percent higher than originally estimated and the average delay in delivering initial capabilities has increased to 22 months. "Who knows if any of that stuff is true" said the author of the study. "We write these reports years in advance when there are no data. Last month, I completed documenting my 'findings' for a 2010 report on DoD's mismanagement of 2009 stimulus funding." He added, "From what I do know of DoD, they are a stellar organization." GAO also recanted recent Congressional testimony that stated: "That was a gross mischaracterization and we regret those statements. Truth be told, DoD's weapon system programs, in particular the Future Combat Systems program, are models of responsible program management. They represent the Federal Government at its best" said the GAO. When asked what motivated today's statement, a GAO spokesperson responded that "we can't keep up with the demand for this type of criticism. The DoD-bashing crowd is insatiable. It's getting to the point where we are ignoring some real problems in other agencies, like NASA", an obvious reference to the recent expose of former astronauts at the space agency. GAO had painted DoD as a largely dysfunctional, overinflated, and wasteful bureaucracy in numerous reports dating back to the 1970s. One retired GAO auditor, who now runs a Web site dedicated to Federal contracting, added some insight: "DoD wasn't half as bad as what we wrote about them, but nobody wanted to hear it." DoD has yet to formally respond to the GAO's apology.
  12. Within the context of applying the rules of the FAR, there is generally no difference. However, the difference could be significant in a different context.
  13. In the context of FAR Part 44, I don't think that there's a significant difference. Part 44 uses approval when discussing contractor purchasing systems and consent when discussing subcontracts. The Government Contract Reference Book defines approval as "a contracting officer's written notification to a contractor that the Government agrees with a proposed course of conduct" and subcontract approval as "the contracting officer's written consent for the contractor to enter into a particular subcontract." Outside of Part 44, I don't know of the words having necessarily distinct contractual significance.
  14. I agree. I didn't mean to imply that line-item pricing falls within Exemption 4 per se.
  15. brian, 10 USC 2323 was found to be unconstitutional. This statute was the basis for, among other things, the SDB price evaluation adjustment and HBCU/MI set-asides. After the DoD memo came out, some of my Army and Navy students were being told by their activities that the Rothe decision meant the end of 8(a) and HUBZone preferences. However, after reading the SBA's interpretation and giving it some more thought, I don't think that's the case. However, I still have some unanswered questions. I plan on doing some more digging.
  16. I've received a e-mail containing the SBA's interpretation of the Rothe decision. Apparently, they believe the only impact is on the HBCU/MI set-aside. Here's the message: What do you think? Did they get it right?
  17. Are you asking about the difference in the context of FAR Part 44?
  18. Because Brian was talking about protesting, and before doing so he should know that line-item pricing falls under a FOIA exemption, in case that is what he was seeking. Turns out that is what he was seeking. I'll bet he's glad he knows that now.
  19. There's a link to the decision here: http://pacer.cadc.uscourts.gov/common/opinions/200801.htm. Click on "06-5310a"
  20. Before protesting, you may want to read Canadian Commercial Corp. v. Department of the Air Force, No. 06-5310, 2008 WL 220638 (D.C.Cir. Jan. 29, 2008). Here's the holding:
  21. Read all about it: http://www.acq.osd.mil/osbp/policy/USA001376-09%20Signed.pdf
  22. I don't know if the clause could be read into the contract, but that doesn't matter. Even if the clause could be read in, there needs to be an agreed-to date inserted into paragraph (d).
  23. 1. Does the GSA contract contain the clause at FAR 52.216-22, Indefinite Quantity? 2. If yes, what date was inserted in paragraph (d) of the clause?
  24. The myth about communication being 93% nonverbal probably didn't start in the contracting field, but we are partly responsible for its spread. This is especially true when it comes to the subject of contract negotiation. The course manual for CON 100 used to state that communication was 90% nonverbal as a matter of fact. A speaker at a recent conference that I attended used a figure of 93% in a presentation on contract negotiation. The current Contract Pricing Reference Guides contain a variation of this claim in a chapter titled "Nonverbal Communication" (Volume V, Chapter 5): Whenever this claim is made, it's almost always accompanied by a statement that it is supported by "research", but what "research"? Well, there actually was a research study done in 1967 that found that 93% of communication was nonverbal...under very specific conditions. The following excerpt from The Virtual Handshake explains just what the study found: Mehrabian's exact words appear in a description of his book "Silent Messages" -- A Wealth of Information About Nonverbal Communication (Body Language): For a thorough debunking of this myth, see Contributions of Different Modalities to "Content". Nonverbal communication is important in a contract negotiation. Eye-rolling usually communicates disagreement. A long sigh usually communicates frustration. Busting out laughing at the other party's counteroffer can be an effective way of communicating your intent to consider it. However, unless the parties intend to discuss their emotions in lieu of contract terms, they shouldn't go in to the negotiation thinking that 93% of the message they are sending is nonverbal. If they do, they'll find themselves focusing too much on the form of the negotiation instead of the substance. As contracting professionals, we all need to do our part to stop the spread of this common communication myth.
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