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Don Mansfield

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Posts posted by Don Mansfield

  1. 1 minute ago, joel hoffman said:

    Well, Don- are you going to support your assertion or opinion?

    Why are notes made before the official evaluation a “record” of the source selection evaluation? If so, then why shouldn’t the give and take discussions of each source selection team during the official, group consensus evaluations and reviews, if any by other teams, be recorded and preserved? 

    @joel hoffman, I related what I did--I didn't make any claims about my knowledge of case law or how much smarter I was than my agency attorneys.

    But since you are asking, here you go:

    Quote

    [T]he destruction of the individual TEP [technical evaluation panel] members' score sheets is barred by the FAR provisions. The current contract file for the challenged procurement does not "constitute a complete history of the transaction," FAR § 4.801(b) (emphasis added), nor does it “[f]urnish[] essential facts in the event of litigation. FAR § 4.801(b)(4). FAR § 4.801(b) expressly refers to § 4.803, which provides "examples of the records normally contained … in contract files." FAR § 4.803. Specifically, the record as submitted does not contain all "[s]ource selection documentation," as required by FAR § 4.803(a)(13). It was foreseeable that the individual rating sheets could well become relevant to issues arising in a bid protest, particularly in a situation where, as here, the bias of one or more of the panel members is alleged. No preturnatural clairvoyance would be required to envision that possibility. Although the ratings of the individual members of the TEP presumably were taken into account by, and wrapped into, the consensus report of the TEP, without the separate score sheets of the individual panel members, the court is unable to assess any divergence in the ratings which produced that consensus, or in turn, determine whether there existed personal bias in favor of [the winning contractors] on the part of one or more of the panel members. The argument by the government and the intervenor that the individual members' rating sheets were in effect no more than drafts of the final consensus report of the [TEP] is not supportable. The consensus report necessarily represented an amalgam of the views of the panel members and would have tended to suppress individual views.

    Pitney Bowes Gov't Solutions, Inc. v. United States, 93 Fed. Cl. 327 (2010)

    "Individual evaluator notes" is undefined. They may or may not be the types of records required to be retained by the FAR. It all depends on what information they contain. A broad assertion that "individual evaluator notes" are, in fact, not records demonstrates a profound ignorance of case law.

  2. 3 hours ago, CHILINVLN said:

    Question:  Is this acceptable for the organization to do, where does the company draw the line, and what steps would we need to take to reduce/mitigate risk to make this happen?  Do we give them the option to join and charge a fee vs extending an invitation?  Do we just put a statement on the invitation that the event meal has a value less than $25?  Appreciate any advice on this topic.

    There's no rule against Company A making the invitation. Just keep in mind that the Government folks you invite are generally required to decline such an invitation. An exception would be if the gratuity would not exceed $20 (not $25) and the sum total of gifts received by the Government employee from Company A over the year would not exceed $50. I have attended such events as a Government employee.

    Funny story, somewhat related. A COR I knew used to go golfing with some of the contractors he oversaw. Of course, he would pay his greens fee because having the contractor pay for it would be accepting a gratuity from a prohibited source.

    To make the game more interesting, the COR and the contractors would all contribute to a pot of money that would go to the winner. Believe it or not, the COR would win every time. I guess he was just a really good golfer.

  3. The Fluor case is inapposite. If the contractor is in default, one of the options is to extend the completion date.

    Quote

    It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do. It is also a principle of law that a waiver of delivery date can be inferred from the Government's behavior after the contractor fails to make delivery as promised. Acceptance of a new delivery date can be established by agreement of the parties or by acts of the Government. Here again, acceptance by the Government can be implied from the circumstances.

    Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA ¶11,332

  4. Why not select offerors using a lottery? Select an offeror, determine responsibility, award. Repeat until agency has made the desired number of awards. Put selection process in solicitation. Have public lottery. 

    Protest-proof and the chances are you will award to contractors of varying quality. Use quality as an evaluation factor when issuing orders.

    I'm not kidding.

  5. 9 hours ago, Neil Roberts said:

    @Retreadfed, here is my take about that:

    The sentence above in FAR 52.232-20, does not give a contracting officer the unilateral right to change the estimated cost specified in the Schedule of the contract. Instead, when the contracting officer provides the Contractor with a revised estimated cost in accordance with this sentence, the contractor is obligated to continue performance and/or incur costs in excess of the estimated cost in the Schedule.

    Let's think this one through. According to your interpretation, there are two distinct amounts--the "estimated cost in the Schedule" and a "revised estimated cost" that is provided by the contracting officer. The amounts could only be made equal by means of a bilateral modification that revised the "estimated cost in the Schedule." Regardless, the contractor is obligated to continue up to the "revised estimated cost."

    Assume the contractor does not agree to a bilateral modification that increases the "estimated cost in the Schedule."

    1. Would the contractor be required to provide the notification in paragraph (b) of FAR 52.232-20 if they expected to exceed 75% of the "revised estimated cost"?

    2. If the contracting officer issued a change order increasing the cost of performance, would the contractor be required to incur costs in excess of the "estimated cost in the Schedule", but less than the "revised estimated cost"?

    3. Regarding paragraph (e) of FAR 52.232-20, would termination costs be limited to the "estimated cost in the Schedule" or the "revised estimated cost"? 

  6. On 7/13/2023 at 8:57 AM, Mac0372 said:

    1. Does a state policy supersede a federal contract?   (assuming specific conditions are NOT set in the Federal Grant and/or Statement of Work)

    Example:  A North Carolina (pick any) university has a contract with U.S. Army Special Forces Command (Fort Bragg/Liberty, NC) for communication work.  Although the employees supporting this contract are considered "state employees", they all physically reside and work in other states (Florida, Colorado, Kentucky, etc.) at miitary installations and currently travel around the United States and Overseas in support of the contract. 

    Per the statement of work (SOW) set forth by the Gov't, the employees on this contract receive Per Diem in accordance with the limitations set forth in the FAR 31.205-46 and the General Services Administration (GSA) per diem rates.

    However, the state university has it's own travel policy citing state statues which differ from GSA per diem rates.  For example the state has a flat rate of $40 a day per diem for employess no matter where in the US (or world) the employee is traveling.  So if the employee traveled to San Diego for 5 days the university will only allow $40 a day ($200 total) when the GSA per diem is $82 a day ($410).  

    The employees of this contract travel overseas and many places where GSA rates are FAR above the university's $40 a day rate.  This seems unethical and illegal to hold these employees to state policy when there is a Gov't SOW which states otherwise.  

    FAR 31.205-46 is a cost principle that applies to commercial organizations. If the contractor is a university, then OMB Uniform Guidance at 2 CFR part 200, subpart E and appendix III would apply. Assuming this is a cost-reimbursement contract, FAR 52.216-7(a) should reference FAR subpart 31.3.

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