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Don Mansfield

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Everything posted by Don Mansfield

  1. IDIQ Decision

    Yes, you can offer a lower price.
  2. 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:
  3. 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
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. page limitations on proposals

    Things are much different now. When contract specialists return to the workplace after multi-week classroom training, acquisition outcomes improve by an average of 53.9% in terms of cost, quality, and delivery. These gains are directly attributable to multi-week classroom training.
  9. page limitations on proposals

    So, you should have the opportunity to offer a specific solution, even though you haven't yet determined what work you would do. I wonder if that would make sense to someone who knew nothing about Government contracting.
  10. page limitations on proposals

    What's your point? There's no support for the existence of the boogeyman, either. That doesn't mean we should go to sleep with the lights off.
  11. Reponsibility Determination FAR 9.104-3(a)

    In DoD, COs are supposed to follow DFARS 232.072-2(b):
  12. A Problem within Soliciations - IDIQs

    I should also add that I use a database called Intelliconnect that includes the Nash & Cibinic e-Series (all the Nash & Cibinic books in electronic format). Some people think I know something about contracting, but the truth is I'm just good at looking stuff up in Intelliconnect.
  13. After reading the Federal Plain Language Guidelines, assess how well the FAR Councils did here:
  14. A Problem within Soliciations - IDIQs

    I found it in Formation of Government Contracts under IDIQ contracts.
  15. A Problem within Soliciations - IDIQs

    Is the agency explicitly directing you to rely on government estimates in arriving at your prices? If so, the agency will be liable for inaccurate estimates. See Admiral Elevator v. Social Sec. Admin., CBCA 470 07-2 BCA ¶ 33,676
  16. A Problem within Soliciations - IDIQs

    I'm not seeing the unfairness. The Government says they have a requirement for the widgets above what they purchased on Contract A. How do you know they won't be buying these parts off of Contract B? What evidence do you have? Why would it be to the Government's advantage to lie about its intentions?
  17. Reserving MACs for SBs

    I don't know. GSA tends to do what they want.
  18. I always thought that the FAR Matrix was a good idea that was poorly executed. To begin with, it's notorious for containing errors. Second, most of the entries in the "Principle Type and/or Purpose of Contract" columns are "A", Required when applicable, which means you have to look up the prescription anyway. Lastly, the matrix isn't going to tell you if your agency deviates from the FAR prescription, which DoD does a lot. As such, I created a matrix that I think overcomes these problems. A few things about the matrix: It contains every provision and clause in the FAR, DFARS, and in DoD Class Deviation memoranda. It doesn't have any "Principle Type and/or Purpose of Contract" columns except for a Commercial Items column. It contains the actual prescription of the provision or clause. For readability, I removed the number and title of the provision or clause in the block and just wrote "use this provision..." or "use this clause..." The identifying information for the provision or clause is already contained in the row. For DoD, it contains additional instructions for the use of FAR clauses that is contained in the DFARS or in a class deviation. This information appears in bold. If you work for a civilian agency, just ignore what's in bold. In the "IBR" column (Incorporation by Reference), there are no "N" entries for "no", with the exception of the provisions and clauses prescribed at FAR 52.107. This may cause some people to freak out, so I'll explain. FAR 52.102(c) states: Thus, if the FAR Matrix contained a "Y" in the IBR column, my matrix will also contain a "Y". If the FAR Matrix contained an "N" in the IBR column, or the provision or clause came from the DFARS or a DoD class deviation, then my matrix will contain a "Y*". The key at the top of the matrix contains an explanation for the "Y*" entry. If you're wondering how to incorporate a provision or clause that contains fill-in material or something the offeror must complete, see FAR 52.102(a) and FAR 52.104(d). You can see the matrix on the DAU Acquisition Community Connection. I'm open to suggestions for making it better. Also, I would like to think that it doesn't contain any errors. However, if you spot one please let me know. As an incentive, I will add your agency's provisions and clauses (the ones in Title 48 of the CFR) to the matrix if you point out a mistake.
  19. First on my list is FAR part 19. I'm not saying eliminate small business programs, but the FAR Councils shouldn't be implementing SBA regulations. Just provide cross-references to the applicable SBA regulations for topics in FAR part 19.
  20. Waiver of Amounts Due the Government

    here_2_help, What you're looking at should not be described as an "official agency clause." It's a local clause developed by a suborganization of an agency that has not been vetted through the rulemaking process like a FAR or DFARS clause. It's not contained in Title 48 of the CFR. Don't be fooled by the fact that the contracting activity is identified and it's dated. Such clauses have been held to have no contractual effect, even though they are agreed-to by the parties. See, for example, La Gloria Oil&Gas Co.v.U.S., 56 Fed.Cl. 211 (2003). In my opinion, a CO should always treat local clauses with some suspicion. Usually, they are someone's great idea within a contracting office to solve an immediate problem. However, they aren't always thought through. If a CO doesn't have the authority to waive amounts due by law, a local clause is not going to give it to them.
  21. Does the contracting officer have the authority to waive amounts due to the Government? For example, some COs will waive an amount due to the Government at contract closeout if that amount is below a certain dollar figure. Here's an example of such a clause accomplishing that purpose: I see the wisdom of such a clause, but my question is whether the CO has this authority.
  22. FAR/DFARS/DoD Class Deviations Provision and Clause Matrix

    How about here.
  23. According to the DFARS, the public can make recommendations for FAR and DFARS changes directly to the DAR Council. From DFARS 201.201-1(d)(ii):
  24. Reserving MACs for SBs

    1. Reserves for more than one small business are for less than the whole requirement. A reserve for one small business is for the whole requirement. See the discussion of reserves here.
  25. Park the money

    This is what I would write: "I can only record an obligation for the amount of the obligation created by the task order. If you want to commit the funds that were not obligated, then you should speak to the financial management folks because I don't have that authority. If you need any help, let me know." I prefer to assume the engineer is just ignorant of the rules, not that they are knowingly intent on doing something illegal. Help them solve their problem.
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