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Don Mansfield

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Everything posted by Don Mansfield

  1. PP Neutral Rating

    Just to be clear, I did not call such an opinion a penalty. In my hypothetical, failure to distribute questionnaires to references would have no bearing on an evaluation of past performance--it would affect a factor such as "compliance with solicitation requirements." Suppose an agency issues an RFP that requires an offeror to submit past performance information in the form of a list of contracts and a brief description of the work required under each. For each contract identified, the offeror is required to send a PP questionnaire to a POC for each contract. The agency does not comply with the display and notice requirements contained in 5 CFR 1320.3(f) and 1320.3(b) when requesting the information. The RFP contains an evaluation factor for "compliance with solicitation requirements." An offeror submits an offer with the list, but does not send any of the questionnaires to its POCs. The agency now has to contact the POCs to obtain the information that would have been in the questionnaire. Accordingly, the offeror gets an unfavorable rating for "compliance with solicitation requirements." Putting aside the issue of whether it would be stupid in doing so, it would be justified under the terms of the RFP. I think that an argument can be made that the agency's actions constituted a "penalty" under the PRA. Note that under "Obligation to Respond" in the Information Collection for Past Performance Information: Responses During Source Selection it states "Required to Obtain or Retain Benefits." So, it seems that a contract is viewed as a "benefit". I don't agree with that assessment. A given RFP contains dozens of information collections. Some of these have been cleared by OMB, some have not. Most of the entries on the list at FAR 1.106 are provisions and clauses. A representation or certification will typically have an associated OMB Control Number. Most forms in the FAR/DFARS display an OMB Control Number if they require an offeror to complete them. In fact, there is an OMB Control Number for collecting past performance information during source selection--9000-0142--but I doubt anybody is complying with the display and notice requirements contained in 5 CFR 1320.
  2. PP Neutral Rating

    "Downgrade" probably isn't the right word. What I'm trying to describe is evaluating an offeror unfavorably under an evaluation factor such as "compliance with solicitation requirements" because they didn't bother to send past performance questionnaires to their references. According to the Information Collection Review, the sections affected are "4.5; 14.205; 15.201(c) and 36.213-2." That's a good question. My guess is that 1) Some agencies don't know what their responsibilities are under the Paperwork Reduction Act, 2) Some agencies do know but it's too hard to comply with, 3) some offerors don't know their rights under the PRA, 4) Some offerors do know their rights but don't enforce them because they're trying to win a contract, and 5) nobody really cares. This article may shed some light on the topic. Avoidance of OIRA (created by the PRA) is not unique to acquisition.
  3. PP Neutral Rating

    The "downgrade" would be for failure to comply with solicitation requirements (i.e., the offeror had references, but didn't have them complete and submit surveys). The information collection approved under OMB Control No. 9000-0037 is for "Presolicitation Notice and Response." See the last FR Notice. If you are referring to the list at FAR 1.106, it is misleading.
  4. PTA above ceiling price — how big a deal, really?

    If we define the PTA as the cost that, when added to the contractor's profit, equals the ceiling price, then the PTA can exceed the ceiling price if profit would be negative when total cost is equal to the ceiling price. The OP's parameters: Target cost = $2.5 million Target profit = $375,000 Overrun share ratio = 40/60 (G/C) Ceiling price = $3,250,000 The PTA formula he used yielded a PTA of $3,437,500: If actual cost turned out to be $3,250,000, the contract price would be $3,175,000: Final Price = Final cost + (Target profit - Contractor share of overrun (Amount of overrun)) = $3,250,000 + (375,000 - (.6*750,000)) = $3,250,000 - $75,000 = $3,175,000 For costs in excess of $3,250,000 up to $3,437,500, the contractor does not assume 100% of the costs--they only assume 60%. So, let's say actual costs were $100K higher than the ceiling price. In that case, the final contract price would be $3,215,000 ($40K higher): Final Price = Final cost + (Target profit - Contractor share of overrun (Amount of overrun)) = $3,350,000 + (375,000 - (.6*850,000)) = $3,350,000 - $135,000 = $3,215,000 So, PTA can exceed ceiling price.
  5. PP Neutral Rating

    joel, What if the protest is not of the requirement itself, but of the agency's actions in response to failing to comply with the requirement? Wouldn't that be a timely protest? You may be right that downgrading an offeror would not be a penalty, but a good lawyer may be able to argue that it is. To my knowledge, this argument has never been made in a protest. I'd love to see what a court or the GAO would decide. There are a lot of protests denied because an offeror failed to provide every last piece of paper required by the solicitation. Why not invoke the public protection provision of the Paperwork Reduction Act? I think it's worth a try. I'm probably the only one, though.
  6. PP Neutral Rating

    Let's assume that the requirement for submitting past performance information was a "collection of information" as defined at 44 U.S.C. § 3502. Let's also assume that this solicitation requirement did not display a valid OMB control number, as required by 5 CFR 1320.3. Would the agency be justified in rejecting or downgrading the offeror for failure to provide the past performance information? 5 CFR 1320.6 states:
  7. Kickstarter and the GCPC

    Do you think using the Governmentwide Commercial Purchase Card to fund a project on Kickstarter is prohibited by law (statute or case law), Executive order or regulation? If yes, please specify what you think would prohibit it.
  8. Kickstarter and the GCPC

    Government would not be the sole funder. It's "crowdfunded".
  9. Kickstarter and the GCPC

    The creator chose to use Kickstarter before the Government ever knew of the project. The Government learns of the project through Kickstarter and determines that the reward offered can directly benefit the Government.
  10. Kickstarter and the GCPC

    That's a good reason.
  11. Small Business Set Aside Under $150k Subcontracting with Large Business

    Correct. I was editing my post when this post popped up.
  12. Small Business Set Aside Under $150k Subcontracting with Large Business

    According to the FAR Open cases report, an interim rule will be issued under FAR case 2016-011 that will implement the $150K exception to the nonmanufacturer rule. FAR 52.219-6 still references the $25,000 exception, so your advice to the OP about ensuring compliance with the nonmanufacturer rule is still good. I need to edit my response to you. I agree that the limitations on subcontracting in the clauses for other set-asides (FAR 52.219-3, -27, -29, & -30) are not dependent on the dollar value of the acquisition.
  13. Small Business Set Aside Under $150k Subcontracting with Large Business

    That doesn't apply under $150K, either. See 13 CFR 121.406( d ): Note that this rule has not yet been implemented in the FAR, so compliance with the nonmanufacturer rule would still apply over $25,000.
  14. Kickstarter and the GCPC

    Well, now you know where I work. Let me know the next time you come down.
  15. Kickstarter and the GCPC

    I'm not advocating for it. I just don't see what prohibits it. The reason I posted this in the Section 809 forum is because I was a fly on the wall at the Panel's meeting on Tuesday and this issue was discussed. The speaker, a CCO from a Federal research lab, related a story about how one of the scientists at the lab had asked if they could use the GCPC to purchase items (i.e., the creator's rewards) on Kickstarter. She assumed that this was improper use of the GCPC. When one of the panelists asked why she thought it was improper, she deferred to another panelist (who happened to be the senior procurement executive of the speaker's agency). That panelist explained that it would violate the Anti-Deficiency Act, because the Government would not be guaranteed a deliverable. Everyone else on the panel seemed to buy that explanation and the discussion that followed was how appropriation laws would need to be changed to accommodate that particular use of the GCPC. I don't see how not being guaranteed a deliverable would violate the ADA. The government awards a lot of contracts for R&D where there is no guarantee of a deliverable. The SPE believed that because R&D contracts require a final report, they meet the requirement for having a "deliverable" and thus, there would be no ADA violation. The SPE also thought that the Government could fund a Kickstarter project under grant authority. The argument seemed half-baked. I was disappointed how the rest of the panelists accepted it with little debate. It may be prohibited to use the GCPC on Kickstarter, but it should take more convincing than it did.
  16. LPTA Question

    But then he won't get to code the action as PBA.
  17. Kickstarter and the GCPC

    From the Web site:
  18. Kickstarter and the GCPC

    Todd, According to the terms and conditions (see my post above), the creator must complete the project and fulfill each reward. Assume that the Government would fund a project where the reward was the item being developed. The item would be for the direct benefit of the Government. Wouldn't this be a procurement contract? Note that at the time of the "pledge", there's no obligation by either party. The obligation is contingent on a future event (i.e., the creator receiving sufficient pledged funding). If this event occurs, the creator is required to perform in accordance with the terms and conditions and the GCPC is charged for the amount of the pledge.
  19. Small Business Set Aside Under $150k Subcontracting with Large Business

    No. There's no limitation on subcontracting under $150K.
  20. CPIF- Fee Payment

    Did you read FAR 52.216-10( c )?
  21. Kickstarter and the GCPC

    joel, Regarding the existence of a contract, here's what the site says:
  22. Kickstarter and the GCPC

    No. Someone is using Kickstarter to obtain funding for the development of a widget. The Government sees the project on Kickstarter and wants to acquire the widget, so it provides funds. If development is successful, the Government gets the widget. If it's not, they don't. Everything is below the micro-purchase threshold. Now I have. See joel's post. Why assume that there's no contract? The Government gets the product if development is successful, doesn't get it if it's not.
  23. Kickstarter and the GCPC

    Assume that the Government is funding the development of a widget. However, there's a possibility that development will fail and the Government won't receive anything.
  24. FAR 52.237-3, Continuity of Services clause

    No, I don't think the clause permits the Government to extend the contract indefinitely.
  25. FAR 52.237-3, Continuity of Services clause

    Batman, Since you referred to a task order, I'm going to assume that the basic contract contains FAR 52.216-18. If so, paragraph (b) states: I would argue that FAR 52.237-3 applies to your task order by operation of FAR 52.216-18.