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Don Mansfield

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Everything posted by Don Mansfield

  1. Problem of the Day

    Scenario: You are a contracting officer and you have a requirement for the purchase of an estimated $1 million worth of noncommercial supplies. The acquisition is in support of a contingency operation and the purchase is to be made outside the United States using simplified acquisition procedures (SAT=$1.5 million). None of the exceptions to requiring certified cost or pricing data at FAR 15.403-1(b) apply.
  2. Problem of the Day

    Really? So, assuming the date "payment would otherwise be due" is later than the date the CO received the claim, the CO would be compliant with the Disputes statute if they paid interest starting on the date "payment would otherwise be do"? Yes or no is sufficient--you don't need to explain. Also, just so I'm clear on your position--you believe, as a general proposition, that compliance with the regulation implementing a statute ensures compliance with the statute. Do I have that right? Again, yes or no is sufficient--you don't need to explain.
  3. Problem of the Day

    Vern, Your argument was premised on the notion that being compliant with a regulation that implements the statute would make you compliant with the statute. I provided a counterexample--I didn't change the topic.
  4. Problem of the Day

    So if I'm compliant with FAR 33.208 regarding the payment of interest on claims, then I'm compliant with the Disputes statute? You don't have to answer that.
  5. Problem of the Day

    Vern, How would that be compliant with the statute?
  6. Problem of the Day

    help, Your interpretation creates a conflict between FAR 15.403-1(a) and FAR 15.403-4(a), which states: In the scenario, the amount of the contract will exceed $750,000 and none of the exceptions in FAR 15.403-1(b) applies.
  7. Problem of the Day

    Looks like the "No" votes win in a landslide. My answer would be "yes", because the statutes (10 USC 2306a and 41 USC Chapter 35) would require certified cost or pricing data above $750,000. Unlike the FAR, the statute doesn't contain a prohibition for obtaining certified cost or pricing data below the SAT. FAR 15.403-1(a) states that: "Simplified acquisition threshold" is defined at FAR 2.101 as: However, I don't think that is what the term means in the context of FAR 15.403-1(a). Regarding the application of definitions, FAR 2.101(a)(1) states: Since applying the definition at FAR 2.101 would create a potential conflict with the underlying statute, I don't think we can interpret the term to mean "$1.5 million" when used at FAR 15.403-1(a). I would interpret it to mean "$150,000". Also, the fact that you are using SAP in the scenario shouldn't matter. The statute applies when using "other than sealed-bid procedures". 10 USC 2306a states: So, that's my answer. Maybe one of the "no" voters can persuade me otherwise.
  8. Problem of the Day

    For examples of such prescriptions, see FAR 14.201-7(b)(1) & (c)(1), and 15.408(n)(2).
  9. PBP Milestone - Mulitiple Payments

    It is taking a while, but the rule is going to be really, really good when it comes out.
  10. Problem of the Day

    I'm adding a column to the DAU Provision and Clause Matrix that will indicate whether a provision or clause applies at or below the SAT. Yesterday I came across some prescriptions that were dependent on the acquisition exceeding the certified cost or pricing data threshold. Then, I envisioned this scenario. I can't promise a problem every day. I'll post whenever I can think of a good one.
  11. PBP Milestone - Mulitiple Payments

    Vern, The rule that you are quoting preceded, and probably prompted, the change made to 10 USC 2307. There is an open DFARS case (2017-D019; Performance-Based Payments) to implement the changes to the statute.
  12. Cooperative Agreement experience

    I would ask the agency director where the requirement to have you sign is covered in the regulations.
  13. Steward, The FAR Councils asserted (but did not explain why) CAS would apply to every task order. I wrote a blog that touched on this issue eight years ago. This was a comment and response pertaining to the applicability of CAS to task and delivery orders accompanying a final rule on CAS (70 FR 11743-01): I pointed out what I thought was an inconsistency because the FAR Councils had just commented that it was "commonly understood" that the applicability of TINA was made at the task or delivery order level. I think you can make a valid argument that CAS should be determined on an order-by-order basis. Paragraph (a) of the clause at FAR 52.230-2 states: Note that the conditional nature of the clause contemplates the possibility that the contract could be exempt. This places an implied onus on the contractor to make this determination. In a contract that were not indefinite delivery, the contractor would typically make this determination when completing the provision at FAR 52.230-1 and probably wouldn't make it again. However, we know from the Supreme Court's Kingdomware decision that a task or delivery order is a "contract" as defined at FAR 2.101, which would also be the applicable definition for interpreting FAR 52.230-2(a) (by operation of FAR 52.202-1). Thus, in an indefinite delivery contract, the clause also contemplates the possibility that a task or delivery order could be exempt. There's no basis to exclude task and delivery orders from the definition of "contract" when interpreting FAR 52.230-2(a). The argument is not perfect, but it's the best I can do.
  14. Cooperative Agreement experience

    It doesn't make any sense to me, either. I used to be a grants officer for DoD and I never heard of such a thing. What is the nature of your company's "commercial agreement" with the small business?
  15. Use of other than FFP under SAP

    The purpose of this poll is to determine how common the use of other than firm-fixed-price contracts is when using simplified acquisition procedures.
  16. Acquisition Mentoring Program Survey

    A former student of mine is part of a team conducting a survey to gauge interest in a Mentoring program for Acquisition. If you work in federal acquisition and work for a federal agency (including DoD), please take a few minutes to complete the survey. The more junior you are, the better. From the team:
  17. Bid Protests: GAO or the Courts

    Counterpoint: I am for removing bid protest jurisdiction from the GAO. I think that a protest system should not allow for three bites at the apple as it does now (agency, GAO, courts). I don't think that's efficient. I think you should get one bite (choose agency or COFC) and an opportunity to appeal from either forum to the CAFC (like the disputes process). Further, when GAO decisions conflict with the COFC, it allows protesters to forum shop and can put contracting officers in a no-win situation (i.e., if I follow course of action A, we probably lose at the GAO. If I follow course of action B, we probably lose at the COFC). I understand that decisions of individual judges can conflict within the COFC, but a protester doesn't get to pick their judge(s). I prefer to have one binding decision, even if I don't agree with it. Bob, This would make for a good poll.
  18. How can we speed up the source selection process?

    Use artificial intelligence. Nothing says that the source selection authority must be human. I'm serious.
  19. How can we speed up the source selection process?

    Just thought of another one: For any program whose average PALT exceeds one year, a 1% incompetence tax is assessed to the program the following year (by withholding 1% of the program's budget). These funds are redsitributed to programs whose average PALT is less than one year in the preceding year. Funds are allocated based on the programs' average PALT (the lower the average PALT, the more $).
  20. How can we speed up the source selection process?

    Redskin Fan, No critiques yet. This is brainstorming. Hear, hear!
  21. How can we speed up the source selection process?

    1. Rescind DoD Mandatory Source Selection procedures. 2. When evaluating offeror capability, limit information to what can be verified (i.e., factual information). No essay-writing contests that require an offeror to explain how they intend to accomplish each task in the SOW. No technical/management proposals. No creative writing. No opportunities for salesmanship. 3. Increase use of the advisory multi-step process. Make it mandatory if you expect more than five proposals. 4. Take bid protest authority away from the GAO. Offerors can protest to the agency or the COFC. Decisions from either can be appealed to the CAFC.
  22. Vern wrote an article in the Nash & Cibinic Report on this topic--SOLE SOURCE ACQUISITIONS--What Are The Proper Procedures?, 26 N&CR ¶ 12, March 2012. Here's a relevant excerpt: See also FAR 6.301(d): But must an agency prepare a solicitation when contracting on a sole-source basis? This question comes up from time to time in contracting office discourse, because as a practical matter a solicitation may be unnecessary. It is clear that the FAR contemplates the issuance of a solicitation in a sole-source acquisition. See, e.g., FAR 15.002(a): [...] And see FAR 6.302-1(d)(2): So when contracting on a sole-source basis a CO must (1) prepare some kind of solicitation that describes its requirements, (2) notify the public that it is available, (3) furnish it to others upon their request, and (4) consider any proposal or “capability statement” received.
  23. Not that I know of. Have you thought of saying thanks, but no thanks?