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Don Mansfield

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Posts posted by Don Mansfield

  1. 6 hours ago, formerfed said:

    If you have multiple BPAs, you should make the ordering official comply with competition requirements and document their actions which includes comparing quotes or prices.

    Assuming the multiple BPAs were awarded competitively, couldn't the ordering official just rotate calls among the BPA holders?

  2. 42 minutes ago, JackSparrow said:

    My company is new to bidding on contracts that come out using Other Transaction Authority (OTAs) and recently lost an award. My CEO is asking whether we can protest. My initial research indicates that OTA awards are not subject to protest. Some research indicates you could challenge an agency's initial decision to use an OTA but I assume that would have to be made at pre-proposal stage, not after award. Looking for any feedback confirming this or general experiences dealing with OTAs. Thanks.


    You could protest an OTA award, but the GAO and COFC probably wouldn't have jurisdiction. However, someone filed a protest of an OTA award in a federal district court last year and the Government conceded that the court had jurisdiction. From "Determining Litigation Fora Under The FAR And Under Other Transaction Authority" by John Krieger and Richard Fowler:


    This finally brings us to MD Helicopters. On April 5, 2019, MD Helicopters filed a protest at the U.S. District Court for the District of Arizona challenging the Army’s decision not to advance its proposal for Phase 1 evaluation for the Future Attack Reconnaissance Aircraft Competitive Prototype. The district court had one initial question, but it was a major one: Does the district court have jurisdiction to hear the case? The court ordered the Government to submit a supplemental brief to address
    the issue of jurisdiction. On May 30, 2019, the Government submitted a 13-page document addressing the issue. Here is the introduction to the more detailed discussion, the “Bottom Line Up Front (BLUF)”:

    The sunset provision under ADRA only terminated district court jurisdiction over bid protests relating to procurements; it did not terminate district court jurisdiction over bid protests relating to non-procurements. In this case, Plaintiff is bringing an Administrative Procedures Act (“APA”) challenge to the Army’s decision not to select it for further participation in a solicitation issued pursuant to the Army’s other transaction authority (“OTA”) codified at 10 U.S.C. § 2371b. The Army’s OTA authority permits it to enter into transactions “other than contracts, cooperative agreements, and grants” to carry out prototype projects. 10 U.S.C. §§ 2371(a); 2371b(a)(1). Such transactions are not procurement contracts and are exempt from the typical panoply of federal procurement statutes and regulations including the Federal Acquisition Regulations (“FAR”), the Defense Federal Acquisition Regulation Supplement (“DFARS”), the Competition in Contracting Act (“CICA”), and the Contracts Disputes Act (“CDA”). Significantly, and directly on point to the Court’s inquiry, the solicitation for the OTA at issue is not a “procurement” for purposes of ADRA, and, accordingly, ADRA does not bar district court jurisdiction over this action. 

    The full article is in the October 2019 issue of Briefing Papers. The substance of the article was also published in the December issue of Contract Management magazine as "Aesop’s Guide to Litigating Under the FAR and Other Transactions, Part 1: Protests".

  3. 5 hours ago, Megan G said:

    Without going too far into the weeds, has anyone successfully petitioned the Government to ignore the prior legends as permitted in 252.227-7013 and 252.227-7037? My understanding of these DFARS is the Government may ignore or, at the Contractor's expense, correct or strike a marking (7013) or may cancel or ignore the restrictive markings (7037). There is a choice how to handle the unjustified markings.  There are 1000+ drawings which included restrictive legends consistent with the data rights we asserted. The burden of removing the legends is labor intensive and an expensive endeavor; I also don't see the contractor updating the drawings to remove the legend as a remedy provided under the DFARS.   

    Is the Government requesting that your company correct the markings?

  4. 1 hour ago, formerfed said:

    As Ibn said, this is like a social media site. At least that’s the way the bulk of members think.  It’s a water cooler as Ji said.  In today’s time, there’s nothing wrong with that.  That’s the way people gather information and don’t have the patience to do extensive research and want long, detailed response.  Quick information that’s maybe 80% correct is the norm.  People are accustomed to answers that aren’t alway correct and know they need to sort through multiple responses and decide what’s needed for them.

    You can't really say what the bulk of members think, but I think that it's fair to say that members expectations differ. Some want to be able to assert whatever they like without having to engage in any sort of substantive discussion. Others desire argumentation. By argumentation, I mean "the act or process of forming reasons and of drawing conclusions and applying them to a case in discussion." At one time I would have described the Wifcon forum as a community that valued argumentation, but maybe formerfed's description is now more accurate.

    Perhaps there should be a "Water Cooler" forum for those members that want to give and receive responses to questions that are ~80% accurate. Nobody would have to respond to any differences of opinion or explain what they mean. Then there could be another forum where argumentation would be the norm. Participants would have to give reasons for their positions, provide evidence, be cooperative when challenged, etc. Posters can choose to post their question in either forum--they could even post in both. 

  5. On ‎2‎/‎2‎/‎2020 at 9:37 AM, Unauthorized commitment said:

    From a career perspective, I am eyeing to eventually transition to a role which offers project management opportunities on the program side.

    My advice would be to put your question to those who are or were recently in that role. I wouldn't put much credence in a contacting professional's perspective.

    I've been supporting a program office over the last year and my experience continues to teach me how little I knew about program management and how narrow my perspective of acquisition was.

  6. I think you should try to understand everything in the plan, even the technical stuff. Understand to the point that you could write it yourself. Then ask if you can write one. Then get really good at writing them. Then teach other 1102s how to write them. Or develop a robot that writes acquisition plans using artificial intelligence with minimal or no human input. Name your robot 11-02. Then patent your invention. Then use your robot to sell acquisition plans as-a-service to the Government. If you don't do it somebody else will. Then there would no longer be a need for you to draft or review acquisition plans. 

  7. Yes. See FAR 15.303(a):

    Agency heads are responsible for source selection. The contracting officer is designated as the source selection authority, unless the agency head appoints another individual for a particular acquisition or group of acquisitions.

  8. 24 minutes ago, Guardian said:

    I would draw your attention to FAR 1.108(a), Words and terms, which states, "Definitions in part  2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning."



    That convention would apply to the use of words or terms in the FAR. Ibn is asking ji what he means when he uses those words. I don't think ji has explained what he means--he merely provided examples of the use of "subjective". But his answer may satisfy Ibn. 

  9. @ji20874,

    If you truly want to continue this discussion, intellectual honesty demands that you defend your initial claim:


    A fair opportunity notice is not a solicitation within the construct of the FAR

    Whether or not something is a "solicitation" depends on the whether it meets the definition of "solicitation" at FAR 2.101.


    “Solicitation” means any request to submit offers or quotations to the Government.

    To bear the burden of proof you must provide evidence that a notice of fair opportunity does not, by definition, request quotations or offers. If you cannot do that, then your claim can be dismissed by operation of Hitchen's Razor.

    quod grātīs asseritur, grātīs negātur ("What is asserted gratuitously may be denied gratuitously")

    Just because someone questions your claim does not necessarily mean they oppose it.

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