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Don Mansfield

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Everything posted by Don Mansfield

  1. Boof, Where in the FAR does it say that HUBZone set-asides "trump" 8(a)? FAR 19.800(e) actually states:
  2. Don Mansfield

    Do It Yourself Training

    No need to reinvent the wheel. Check out the syllabus for Formation of Government Contracts as taught by the George Washington University, complete with links to key GAO, court, and board decisions. This provides a good structure for a course of study. I couldn't find the syllabus for Administration of Government Contracts, though.
  3. Don Mansfield

    Delivery Orders Not Binding? Huh?

    I read something that I found remarkable in the recently published GAO decision Master Lock Company, LLC, B-309982.2, June 24, 2008. Bob posted the decision on the Wifcon home page. The protester argued that the agency's evaluation of the awardee's past performance should have taken into account the fact that they had declined a delivery order under a different IDIQ contract. In response, the agency argued that a delivery order was not binding and the GAO agreed. Here's an excerpt: "During the course of this protest, Master Lock also argued that the agency?s evaluation of Evergreen?s past performance was unreasonable. As discussed above, Evergreen declined to accept order No. 2745, which was issued under a different contract. DLA acknowledges that it did not consider these events in its evaluation of Evergreen?s past performance. AR at 8. The agency contends, however, that it was not required to do so because the submission of a quote by a vendor under an ID/IQ contract does not result in a binding obligation. Thus, the agency argues, because Evergreen did not accept the order, there was no contract performance for the agency to evaluate. The agency is correct that neither the submission of a quote by a vendor nor the issuance of an order by an agency results in a binding contractual obligation. Rather, the government?s order represents an offer that the vendor may accept either through performance or by a formal acceptance document. M. Braun, Inc., B-298935.2, May 21, 2007, 2007 CPD ? 96 at 3." [italics added]. However, the case that the GAO cited as support for their position did not deal with a task or delivery order under an IDIQ contract--it was a purchase order using simplified acquisition procedures. There's a big difference. FAR 16.506 requires the inclusion of the clauses at FAR 52.216-18, Ordering, 52.216-19, Order Limitations, and 52.216-22, Indefinite Quantity, in an IDIQ contract. Here's what the Indefinite Quantity clause says regarding the contractor's obligation to perform: "Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the 'maximum.' The Government shall order at least the quantity of supplies or services designated in the Schedule as the 'minimum.'" [bold added]. Now, what in this required FAR clause would give the contractor the right to decline an order, provided that the order complies with the Ordering and Order Limitations clauses? I don?t see it. The decision includes the following statements further on in an attempt to clarify: "Although the work required under any task or delivery order will only become a binding obligation on the parties if the vendor accepts the order, the underlying ID/IQ contract may itself have obligations. For example, a contract may require a vendor to accept orders placed by the agency within certain parameters.? This is conceptually incorrect. IDIQ contracts do require (not ?may?) the contractor to accept orders placed by the agency within certain parameters (stated in the Ordering and Order Limitations clauses). The only instance where a contractor?s acceptance of a task or delivery order would matter would be if the agency?s order was not within the stated parameters in the Ordering and Order Limitations clauses. Furthermore, an arrangement where the Government was required to order a minimum quantity and the contractor would not be required to perform would arguably lack consideration and, thus, not be an enforceable contract. The main problem with this decision is that it characterizes the exception to the rule (i.e., situations where the contractor may decline a task or delivery order under an IDIQ contract) as the rule itself. It also fails to recognize the distinction between purchase orders made in the open market and task and delivery orders under IDIQ contracts.
  4. Don Mansfield

    Delivery Orders Not Binding? Huh?

    TAP, I don't think that such an order would be binding. What you describe seems more like a purchase order than a task or delivery order.
  5. Don Mansfield

    Delivery Orders Not Binding? Huh?

    TAP, I don't think an order that did not contain a price or quantity (minimum information required by FAR 16.505(a)(6)) would be binding unless the contractor agreed to accept such orders in the contract. For example, I have seen IDIQ contracts that contain a special clause whereby the contractor agrees to accept undefinitized orders.
  6. Don Mansfield

    Insourcing contractor acquisition support

    Aronson, I got a kick out of your post. After years of industry snapping up the best and brightest from the Government's ranks, the pendulum seems to swinging the other way. Expect the current trend to continue for another 5-10 years. Then, we'll start hearing how the size of Government is too big and that we should be outsourcing more acquisition positions.
  7. Don Mansfield

    Small Business Order of Priority Table (HOLD THE PRESS!)

    Vern, I don't think that 8(a) has priority over the other programs the way that HUBZone set-asides do--it's more of a "soft" priority. 8(a) is not mandatory, but I think it is more than discretionary. If an agency ignored the possibility of offering an acquisition under the 8(a) program and went forward with a small business set-aside, they better have a good reason due to the language in FAR 19.800(e). "Should consider" is more than "may consider." It's not like the relationship between SDVOSB set-asides and SB set-asides, where the CO has complete discretion to choose either one--that's parity. Regarding the "shall" in 19.5, I think we need to interpret that in a way where there is no conflict with 19.800(e). The only way to do that would be to say that the "shall" applies only after the agency has complied with FAR 19.800(e). Otherwise, FAR 19.800(e) would be meaningless.
  8. Don Mansfield

    Posting, Synopsis and Advertisement

    Regardless of who you solicit, are all responsible offerors permitted to compete?
  9. Do the RFPs contain 52.204-8?
  10. formerfed, I agree, but we should acknowledge that COs generally do not put much thought into negotiating subcontracting goals for specific contracts. They will insist on predetermined goals assigned to their agency instead of considering what they are buying, the contractor's past subcontracting accomplishments, the industrial base, etc. This can lead to unrealistic subcontracting goals. A few years ago, the Navy issued an edict that 40% of ship repair contracts were to be subcontracted to small business. If you maximized the capacity of all of the small business concerns that supported ship repair in San Diego, you wouldn't come close to 40%. The local shipyards complained, I advised the PCO that the goal wasn't realistic (I was the Deputy for Small Business), but the PCO didn't care--40% was the magic number. Not only that, the consequences for not meeting the 40% requirement were stiff when it came time to determining award fee. It wasn't long after awarding contracts with these goals that we started seeing new small business subcontractors whose sole purpose was to manage other subcontractors. Just wanted to point out that the Government can have a role in such contractor behavior.
  11. Apparently, the CO didn't read the FAR either. FAR 16.504(a)(4) states: Italics added.
  12. Don Mansfield

    TO Eval Criteria Missing

    First, it's not a clause. Second, the implication in FAR 15.002(a) is that evaluation criteria are unnecessary in a sole source acquisition. To interpret FAR 15.002(a) as you suggest would clearly be incorrect. I don't think that you understand what evaluation criteria are. Evaluation criteria are used to discriminate between and among competing proposals (See FAR 15.304((2)). In a sole source situation, there's no need for that. Of course, you need to determine that the price of a sole source contract is fair and reasonable. However, this doesn't mean that "Price" is an evaluation criterion.
  13. Don Mansfield

    TO Eval Criteria Missing

    Georgeml, FAR 15.002(a) states: Italics added. Why do you think it says that?
  14. Did you read DoD 4400.1-M, "Department of Defense Priorities and Allocations Manual"?
  15. Don Mansfield

    Contract Clauses

    Vern, Orion's response to my question ("That's an interesting question...") shows that he doesn't seem to be aware of the Christian Doctrine, which is why I provided him the link. The link wasn't supposed to answer his question about whether clauses could be added unilaterally. formerfed already answered that.
  16. Don Mansfield

    Contract Clauses

    Orion, Read this: http://www.certifiedksolutions.com/blog/?p=102
  17. Don Mansfield

    Intellectual Property

    What's worse, giving bad advice or no advice?
  18. Don Mansfield

    Intellectual Property

    Tom, What does the agreement say about rights in IP? Ownership of IP and rights in IP are two different things.
  19. You think that a contracting officer has the authority create an obligation that exceeds the amount of funding available?
  20. Don Mansfield

    Contract Clauses

    brian, What if the the Termination for Convenience clause was not in the contract? Does that mean that the Government could not terminate for convenience?
  21. Don Mansfield

    First Article Testing

    Did you read the Changes clause in the contract? Does that not answer your question?
  22. Don Mansfield

    Win the Government's Money! Experiment

    In another thread, I wrote: This seemed to upset some people, so I thought I would test my hypothesis. The rules of "Win the Government's Money!" are analogous to the situation I described. If you're the lowest without being too low, you win. You also get a bonus for winning, which represents the profit you would end up making on equitable adjustments. You don't know the profit you would make when you submit your bid, but you have an idea of a reasonable range. Some would argue that it's dishonest to submit a below-cost bid with the intention of making up for a loss through profits gained from equitable adjustments. I don't see such behavior as good or bad--I think that it is a logical consequence of the rules that govern the process.
  23. Welcome to "Win the Government's Money!" The rules of the game are as follows: 1. You are a Government contractor and your goal is to make as much money as you can. 2. You are bidding on a contract that will cost you $1,000,000 to complete. 3. You must bid a single fixed-price to complete the contract. If you submit the lowest bid, you will win the contract. However, your bid price must be realistic or you will be found to be nonresponsible. 4. If you win the contract, your score will be your bid price minus $1,000,000. 5. After the winner has been decided, a random number will be chosen between $200,000 and $400,000. 10% of the random number selected will be added to the winner's score. Are you ready to play? If so, send me your bid through the messenger function by clicking on my name at the left. Don't post your bid here. You have until tomorrow at 11:00AM PDT to submit your bid. The results of the competition will be posted here. Good luck!
  24. Don Mansfield

    Win the Government's Money! Experiment

    Vbus, you still would have lost. The good news is that you won round 2 with a bid of $975,000. Your bonus money is $26,771, which makes your score $1,771.