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Don Mansfield

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Posts posted by Don Mansfield

  1. 23 hours ago, Vern Edwards said:

    @Don Mansfield Okay, I'll answer your question. Yes.

    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.

  2. 10 hours ago, Vern Edwards said:

    By being compliant with the regulation that implements the statute.

    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.

  3. help,

    Your interpretation creates a conflict between FAR 15.403-1(a) and FAR 15.403-4(a), which states:


    The contracting officer shall obtain certified cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403-1(b) applies. However, if the contracting officer has reason to believe exceptional circumstances exist and has sufficient data available to determine a fair and reasonable price, then the contracting officer should consider requesting a waiver under the exception at 15.403-1(b)(4). The threshold for obtaining certified cost or pricing data is $750,000. Unless an exception applies, certified cost or pricing data are required before accomplishing any of the following actions expected to exceed the current threshold or, in the case of existing contracts, the threshold specified in the contract--

    In the scenario, the amount of the contract will exceed $750,000 and none of the exceptions in FAR 15.403-1(b) applies.

  4. 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:


    Certified cost or pricing data shall not be obtained for acquisitions at or below the simplified acquisition threshold.

    "Simplified acquisition threshold" is defined at FAR 2.101 as:



    “Simplified acquisition threshold” means $150,000 (41 U.S.C. 134), except for–

    (1) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack (41 U.S.C. 1903), the term means–

    (i) $750,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and

    (ii) $1.5 million for any contract to be awarded and performed, or purchase to be made, outside the United States; and

    (2) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a humanitarian or peacekeeping operation (10 U.S.C. 2302), the term means $300,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.


    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:



    A word or a term, defined in this section, has the same meaning throughout this regulation (48 CFR Chapter 1), unless—

    (1) The context in which the word or term is used clearly requires a different meaning


    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:



    (a) Required Cost or Pricing Data and Certification.-(1) The head of an agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows:

    (A) An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures that is only expected to receive one bid shall be required to submit cost or pricing data before the award of a contract if-

    (i) in the case of a prime contract entered into after June 30, 2018, the price of the contract to the United States is expected to exceed $2,000,000; and

    (ii) in the case of a prime contract entered into on or before June 30, 2018, the price of the contract to the United States is expected to exceed $750,000.


    So, that's my answer. Maybe one of the "no" voters can persuade me otherwise.

  5. 8 minutes ago, Jamaal Valentine said:

    I wonder what the prescriptions are and if they intentionally turn on the threshold for obtaining certified cost or pricing data ($750,000) rather than actions that require certified cost or pricing data. The threshold is merely a value...applicability could be something else.

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

  6. 1 hour ago, Matthew Fleharty said:

    I'm curious to hear the story behind why this became the Problem of the Day.

    Also, will this be a recurring thing? ;)

    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.

  7. 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.  

  8. 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):



    Task Order Contracts

    31. Comment: One respondent stated that one of the many situations that greatly affect the cost accumulation calculation that is not addressed in the proposal is the trend toward task order contracts that may have both fixed fee and incentive fee tasks, as well as CAS covered and non-CAS covered tasks.

    Councils' response: Nonconcur. The Councils believe that this situation is adequately covered by the language at FAR 30.605(h)(5), and the definition of "Affected CAS-covered contracts" at FAR 30.001.


    As for the issue of CAS-covered versus non-CAS-covered tasks, a contract cannot contain both CAS-covered and non-CAS-covered tasks. In order for CAS-coverage to differ between tasks, each task would have to be a separate contract. In such cases, the definition of affected CAS-covered contracts would exclude the non-CAS covered tasks from the computation of the cost-impact.



    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:


    Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2, the provisions of 48 CFR Part 9903 are incorporated herein by reference and the Contractor, in connection with this contract...

    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.

  9. 5 hours ago, bob7947 said:

    Do you believe that the GAO's bid protest jurisdiction be removed from GAO?  If you believe GAO's bid protest jurisdiction should by removed why?  

    Do You believe jurisdiction to hear bid protests should be limited to the courts?  If so, why?


    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. 


    This would make for a good poll.

  10. 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 $).   

  11. 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.

  12. 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:



     Making The Solicitation Available. FAR 5.102(a) requires that COs make solicitations available through the GPE unless (1) publication would compromise national security, (2) the nature of the file makes doing so impracticable, or (3) the agency's senior procurement executive decides that it is not in the public interest. If the solicitation will not be made available through the GPE the CO must make it available in some other way.
    FAR 5.102(e) expressly requires COs to make sole-source solicitations available through the GPE or some other medium. See FAR 5.102(e):
    (e) Provide copies of a solicitation issued under other than full and open competition to firms requesting copies that were not initially solicited, but only after advising the requester of the determination to limit the solicitation to a specified firm or firms as authorized under [FAR] Part 6.
    See also FAR 6.301(d):
    (d) When not providing for full and open competition, the contracting officer shall solicit offers from as many potential sources as is practicable under the circumstances.
    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):
    (a) Sole source acquisitions. When contracting in a sole source environment, the request for proposals (RFP) should be tailored to remove unnecessary information and requirements; e.g., evaluation criteria and voluminous proposal preparation instructions.
    And see FAR 6.302-1(d)(2):
    (2) For contracts awarded using this authority, the notices required by [FAR] shall have been published and any bids, proposals, quotations, or capability statements must have been considered.
    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.



  13. You made certain assumptions when you established your goals, right? Explain what happened that you couldn't have reasonably expected (i.e., your mitigating factors) and how this affected meeting your goals. Cause and effect. Given what happened and the likelihood of it happening again in the future, describe what you plan to do differently in the future to meet your goals.