Don Mansfield

Do you wait to award until at least 30 days after the FedBizOpps announcement? If not, then I think that you would have a problem if you received a timely capability statement from a potential offeror after you awarded the contract.

I recently heard from a contractor regarding an experience he had with reverse auctions. A federal agency was conducting a reverse auction using FedBid and he decided to compete (FedBid, Inc., provides a service whereby federal agencies can conduct reverse auctions). Although he submitted several bids, he ultimately lost the reverse auction. When he checked to see who had won, he was surprised to see that the federal agency that was in need of the required items was the low bidder. In other words, the federal agency was submitting bogus bids in an effort to get the contractor to reduce his bid price. The federal agency then contacted him and offered to purchase the items from the contractor at his lowest bid price. Feeling that he had been duped, he told them to get lost. The tactic employed by the federal agency, called phantom bidding, is not new. Many view the practice as unethical while others see it as a legitimate tactic. In regular auctions, the legality of seller participation in bidding varies from state to state. For those states that allow it, sellers typically must disclose that they reserve the right to participate in the bidding. In any case, should the Federal Government be allowed to place phantom bids in reverse auctions? Would your answer be different if the disclosure of the practice was required prior to the reverse auction?

I had always thought that the solicitation response times stated at FAR 5.203 did not apply to sole source acquisitions. However, a recent decision of the CAFC suggests that they do. In that case, an agency published a FedBizOpps notice stating their intent to negotiate on a sole source basis and gave potential offerors five days to submit a capability statement. Although they didn't decide the issue, the court referred to FAR 5.203( for guidance on determining solicitation response times (the acquisition was for a commercial item), which requires the Government to "establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond . . . .? This was a nonissue because the protester had waited 20 days to submit a capability statement. Read the decision here. So let's say I intend to enter into negotiations on a sole source basis (under the authority of FAR 6.302-1) for a noncommercial item exceeding the SAT. Must I give potential offerors at least 30 days to submit capability statements from the date of the synopsis IAW FAR 5.203( c )?

Ironically, most reports would have you believe that the impending exodus of "experienced" 1102s is a bad thing.

verygreen, I asked myself the same questions when I was about half-way through my internship. I decided to finish the program (and get my annual promotions). However, I spent that time planning my next move. An external rotation was required as part of my intern program, so I set one up with a contracting office that I thought I would like. I did like it (and they liked me, too). Within three months of graduating from my intern program, I was working at that office.

Duh

Regarding sections L & M, see FAR 15.002(a).

Ok. Here's what it says: Where is the requirement to "keep original hard copy records for one year before we can shred them and rely completely on the electronic copy"?

Cajuncharlie, Where in the FAR is that requirement?

Vern, Why do you say that the turbines were never in the possession (under the control of) of the contractor? RIR said the contractor has the ship at their facility.

RIR, One last comment. If the contractor wants to argue that the turbine generators are GFP, they should know that they would then be responsible for performing all of the duties in FAR 52.245-1(f) for any property furnished to them for repair--documentation of receipt, identification, record-keeping, inventory, reporting, maintenance, closeout, etc. If the turbine generators are GFP for purpose of FAR 52.245-1(h), then they are GFP for the purpose of FAR 52.245-1(f)--the contractor can't have it both ways.

Vern, Given the definition of GFP in the clause, I don't think that there's any question that property furnished to the contractor for repair is GFP. The question I was raising, which RIR just answered, is whether the Government "furnished" the turbine generators. The entire vessel was furnished to the contractor. Carl, You found the clause that I was asking RIR about. Paragraph ( c ) is what I remember. However, I suspect that the DFARS clause is not in RIR's contract because NAVSEA generally doesn't issue job orders against master agreements for ship repair. They award long-term multi-ship multi-option (MSMO) contracts that are combination CPAF/CPIF. RIR, 1. Does the contractor have a Master Agreement for the Repair and Alteration of Vessels (MARAV) or Master Ship Repair Agreement (MSRA) with the Navy? 2. If yes to question #1, does the agreement include DFARS 252.217-7006? 3. If yes to #1 and #2, does the contract incorporate the MARAV by reference, or does the MARAV say that it applies to all future contracts for ship repair with that contractor? (i.e., Is there a way to bind the contractor to DFARS 252.217-7006 under your contract?) If you can answer yes to all these questions, then pursuant to DFARS 252.217-7006( c ), the turbine generators are not to be considered GFP. As such, FAR 52.245-1(h) does not relieve the contractor from liability for loss, theft, damage, or destruction of the turbine generators.

RIR, Is there anything in the contract that says that the vessel is still under the Government's control, even if it is located at the contractor's facility? I have experience with NAVSEA contracts and I recall there being some clause to that effect.

If the receiver has control of the ball with both feet in bounds I'll go with the Merriam-Webster online dictionary:

I'm not sure that the Navy "furnished" the turbines for repair. If the contractor came on base and did on-board repair of the turbines, then I don't think the Navy "furnished" them.

The Government Property clause uses the word "possession" several times, but does not define it (nor does FAR 2.101). I think one can glean what is required in order for possession to be present from paragraph ( of the clause: My interpretation of the clause is that in order for possession to exist, the contractor would have to at least receive the property. Paragraph (f)(1)(ii) of the clause requires the contractor to document receipt. The implication is that the property was sent to the contractor by someone. Once received, the contractor would be responsible for its stewardship (tagging, keeping records, taking inventory, maintenance, reporting, etc.) until relieved in accordance with (f)(1)(vii) of the clause. In the case in question, were the turbines received by the contractor? Was the contractor responsible for stewardship of the turbines? If we removed the turbines and sent them to the contractor (or sent the entire vessel to the contractor) and they received them, then they were in the contractor's possession. As such, the contractor would be responsible for their stewardship and relieved of liability for loss, theft, damage, or destruction of the property while executing their stewardship responsibility. On the other hand, if we didn't send the turbines (or the vessel) to the contractor, then they could not have received them. The Government could not hold them accountable for stewardship responsibilities pursuant to FAR 52.245-1. If a contractor comes to a Government office to perform onsite maintenance of a copy machine, I don't believe that the contractor has taken possession of the copy machine. I think the situation is similar to a contractor coming to a Navy base performing on-board repair of equipment on a vessel.

If the Government gave the turbines (or the entire vessel) to the contractor, and the contractor had possession of them, then I think that the turbines would be property furnished for repair. If the vessel were on a Navy base and the contractor boarded the vessel to repair the turbines in place, then the turbines would not be property furnished for repair (i.e., the turbines were not given to the contractor nor did the contractor take possession of them). In the decision that you cited (which I skimmed), I gathered that the contractor would take possession of Government property and perform repair/overhaul work on it at its facility: If that was the case, then that was correctly referred to as GFP in the contract. Accordingly, the contractor would be responsible for performing the custodial duties of the Government Property clause. I think that for an item to be GFP or CAP, the contractor must have possession of the item. If the contractor damages Government property that is not in its possession while performing work, FAR 52.245-1(h) does not relieve them from liability. Accordingly, costs of repairing the damage should not be excluded in the "Total Allowable Cost" computation if the contract includes the Incentive Fee clause.

FAR 52.245-1(h) states: Thus the contractor is relieved from liability if the Government property was either 1) furnished by the Government (GFP) or 2) acquired by the contractor (CAP). It doesn't relieve the contractor from liability for loss, theft, damage, or destruction of all Government property (i.e., Government property that is neither GFP nor CAP). I don't see how, in RIR's situation, the turbine generators were furnished by the Government (assuming the contractor did not take possession of the turbine generators or the vessel itself). They were obviously not acquired by the contractor. Yes, the turbine generators are Government property as defined by the clause and stated in the NAVSEA clause. However, the NAVSEA clause doesn't say that equipment on the vessel is Government-furnished property. Here's what the clause says: The definition of Government-furnished property at FAR 52.245-1 is: Furnish is not defined in the clause or the FAR. An online legal dictionary (www.thefreedictionary.com) defines furnish as-- If the contractor never takes possession of the turbine generators, I don't see how it could be argued that the Government "furnished" them.

Did you mean FAR 52.245-1 Government Property (DEVIATION) (June 2007)?

napolik, That works for me. Merry Christmas!

napolik, That's not how I read FAR 8.405-1(d)(3)(ii) or FAR 8.405-2( c )(3)(iii)(, which state-- If you expected quotes from two (and only two) small business concerns and you limited competition to small business concerns, then I don't think that you would be compliant with FAR 8.405. I see no reason to qualify the bolded sentence above with "unless setting the order aside for small business, in which case two is sufficient."

I don't see how you could comply with FAR 8.405 if you set-aside a FSS order and only expected quotes from two small business concerns.

According to a recent SBA IG report, the SBA's position is that FAR Part 19 applies to contracts awarded in the United States, regardless of where they are performed. From the report: See the full report here.

I don't agree with "(or 4 with a valid justification)." When acquiring major systems in DoD, ACD&P funds are used in the Technology Development Phase, which is post-Milestone A (see DoDI 5000.02). If a program is past Milestone A, then an Analysis of Alternatives has been completed and a materiel solution has been approved. From DoDI 5000.02: Pre-Milestone A (Materiel Solution Analysis Phase) DoD is looking for innovative ideas to address a broadly defined need. A BAA is helpful in soliciting such ideas. However, once the materiel solution has been selected, the focus is on maturing the technology for incorporation into a system. As such, I don't see how the use of a BAA would be appropriate, given the FAR specifically excludes use of the BAA for efforts "focusing on a specific system or hardware solution."

The 1102, There's a principle of statutory construction called expressio unius est exclusio alterius, which means "when one or more things of a class are expressly mentioned others of the same class are excluded." So if the FAR says that a BAA may be used for X, Y, and Z, then it cannot be used for A, B, or C. The FAR does not need to expressly state that a BAA cannot be used for A, B, or C.