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Don Mansfield

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Everything posted by Don Mansfield

  1. This is what I call job security.
  2. Those Pesky IDIQ Contracts Again

    The fill-in in paragraph (d) applies to "deliveries". Is the contractor making deliveries? Note that the clause distinguishes between "deliveries" and "performance" in paragraph (b) and (c).
  3. What is the market price for the items of the same type that have been sold (or offered for sale) to the general public?
  4. IDIQ VS. Requirements

    It could be. It would be appropriate for mortuary services. I don't see the simplicity of the service being much of a factor when deciding between IDIQ and requirements.
  5. IFB for Construction Issued Low Bid Under SAT

    I don't think you have to remove FAR 52.228-15. Paragraph (b) of the clause makes it inapplicable under $150K. So, I think you can award. I also don't see a problem with a bilateral modification to include FAR 52.228-13. However, I wouldn't assume that this would cause a decrease in the contractor's cost of performance. Since the requirements of FAR 52.228-15 didn't apply to their bid, they may not have assented to any payment protections. The addition of FAR 52.228-13 may increase the cost of performance.
  6. Did the CBCA commit and error in logic?

    The board assumed that an IDIQ contract is distinct from a time-and-materials contract. They didn't realize that the terms "IDIQ" and "time-and-materials" describe different aspects of a contract. "IDIQ" describes the contract's delivery/quantity arrangement and "time-and-materials" describes the contract's cost/pricing arrangement. They're doing the equivalent of trying to determine if a baseball is a round object or a white object--not realizing that it's both.
  7. Ethics and Transparency

    Request the contract through FOIA.
  8. It's been almost 10 months since the FAR Council issued the last Federal Acquisition Circular (FAC). The streak of inactivity will be broken on November 6 when FAC 2005-96 will be published. The FAC contains a single rule that removes the Fair Pay and Safe Workplaces Rule. But that's not what makes the rule so remarkable. Item 16 of the FAC makes changes to the provision at FAR 52.204-8 as follows: Notice something strange? See that link to a YouTube Video? That's really there. It's in both the html and pdf versions of the FAC. It is officially contained in the FAR. What is the video? I won't spoil it for you--click and find out.
  9. New FAC Contains Wonderful Thanksgiving Surprise

    I base it on 41 U.S.C. 1707(a), which clearly states:
  10. New FAC Contains Wonderful Thanksgiving Surprise

    A change like that requires public comment.
  11. FAC 2005-96 Muppet Video

    I should add that omitting the link from solicitations that include the provision at FAR 52.204-8 would be a FAR deviation.
  12. Trade Agreements (TAA)

    So, you would buy the iPad for Government use? It's not for your use?
  13. I don't know the significance of a document being transferred to the Policy Vault archives. The description of the archives sounds like a policy document graveyard: It would be strange to move documents to an archive if they were still effective. But, I admit I don't know for sure.
  14. Like this: https://www.acq.osd.mil/dpap/ops/policy_vault.html
  15. Progress Payments by CLIN

    Thanks for the tip, Pepe. No, I don't think that's a deviation. I think ji's clause is clarifying the terms of a contract that is a combination of contract types. It's not like he's making up his own rules. Carry on.
  16. Where/ How to start learning?

    There's a program that will spit out what should be flowed down to subcontracts if you upload your contract in a Word document. Check out http://just-clause.com/Home/Index.
  17. IDIQ Decision

    Yes, you can offer a lower price.
  18. Mandatory E-Payroll

    Do you think the higher-ups in USACE even thought about 41 USC 1707? I'm not arguing that the clause in question should have been published for comment (I can't open that link), but I can' find a single USACE provision or clause in Title 48 of the CFR. Chapter 51 of Title 48 only lists three clauses:
  19. No, you're correct. However, you're incorrect in thinking that DPAP is responsible for you getting an error message. For some reason, some people just can't accept that if a DFARS provision or clause is not listed in DFARS 212.301(f), then it's not required in a solicitation for the acquisition of commercial items. They seize on prescribing language that says "Insert this clause in all solicitations and contracts..." and become stuck. They don't get the concept that regulations must be read as a whole. I recently had a former student e-mail me with the same dilemma--her legal counsel sent back her solicitation because it didn't contain some DFARS clauses, including DFARS 252.225-7048. This is what her legal counsel wrote: This is what I wrote back to her: So, when her legal counsel saw the FR notice and read 41 USC 1906, they realized their mistake...is not what happened. They responded by saying the statutes that the DFARS clauses in question implement take precedence over the DAR Council determination. This person has a law degree and is the member of a bar in some state. Sad. fr_2011-D056 (1).pdf
  20. Mandatory E-Payroll

    Although not directly on point, this article contains a good description of the agency practice of imposing nonlegislative rules as if they are legislative rules. In terms of acquisition, this is similar to the implementation of local policies via local clauses. The description for the motives and consequences of such behavior would seem applicable to acquisition: Note that 41 USC 1707 imposes publication for acquisition rules, not the APA.
  21. Mandatory E-Payroll

    There probably is no authority. This is likely an example of stealth regulation through the use of "local clauses". I checked the Federal Register and the CFR and found no such clause. If the clause has a significant effect beyond the internal operating procedures of the agency or has a significant cost or administrative impact on contractors or offerors, then 41 USC 1707, as implemented by FAR 1.301( b ) and FAR subpart 1.5, requires that it be published for comment in the Federal Register and codified in Title 48 of the CFR. DoD must follow the procedures at DFARS PGI subpart 201.3. If you bring this to the attention of the contracting officer, they probably won't know what you are talking about. They will probably think that you are misunderstanding something. Agency avoidance of the rulemaking process is quite common throughout the Federal Government. In acquisition, I would say that it's the norm. One paper found that compliance with rulemaking requirements tends to be directly related to litigation risk. I would say the risk of an agency getting sued by a prospective or actual contractor for its failure to comply with 41 USC 1707 is very low. Instead of suing, contractors are more likely to absorb additional costs or administrative impact imposed by a local clause and pass them on to the Government in the form of increased prices. One last thing. Courts have declined to enforce clauses that should have gone through rulemaking, but did not. See La Gloria, 56 Fed. Cl. 211.
  22. page limitations on proposals

    Ok, Mr. Facts and Data, All the support you need is in our Annual Report. You can save yourself some time by just searching for the term "acquisition outcome". After reading it, you may think that 33.85% is too conservative.
  23. page limitations on proposals

    Hi, Vern, Such determinations are based on an assessment of what others are likely to believe without becoming suspicious. Having said that, I'm going to revise my number to 33.85%. If "objective assessments of empirical data" include cherry-picking, then the answer to your question is "yes". Although, an "objective assessment of empirical data" and a "subjective, anecdotal assessment" is really a distinction without a difference.
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