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Don Mansfield

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Posts posted by Don Mansfield

  1. ji's argument only holds water if a notice of fair opportunity, by definition, does not request quotations or offers from the Government. He presents no basis for that other than he would not put the Bankruptcy clause in a notice of fair opportunity. A "solicitation" is defined as:


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

    Why can't a notice of fair opportunity request quotations or offers? Maybe some do and some don't.

    ji has avoided answering the question of whether a notice of fair opportunity requests quotations or offers from the Government because a "yes" answer would undermine the distinction he's trying to make. A "no" answer would require him to explain why that is necessarily so, which he cannot. 

    Further, ji believes that the FAR Councils came up with "notice of fair opportunity" to distinguish it from "solicitation" when developing FAR 16.505 procedures. The evidence presented is that "solicitation" does not appear in FAR 16.505. That's an interesting theory, but there's not enough evidence for a reasonable person to draw such a strong conclusion. Certainly not enough to claim "A fair opportunity notice is not a solicitation within the construct of the FAR" as a matter of fact. Or to accuse others of being sloppy. Some of what has been posted in agency supplements seems to contradict that theory.

  2. 54 minutes ago, ji20874 said:

    I actually like the construction — it combines both “notice” which is what it really is/what the FAR calls it and “solicitation” which is what some people think of it as when they’re in a hurry, so everyone is happy and no one is offended.  It helps reinforce correct principles, and is a good compromise for a document where the purpose is meaningful learning rather than pedantry.

    Not surprised you like it--aren't you one of the PIL team members?

    In any case, I didn't say I didn't like it. It's just someone who wrote this in another thread:


    A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community.

    A pedant like that might take issue with your document.

  3. 4 minutes ago, Retreadfed said:

    What marketplace, the marketplace of government contracting or the commercial marketplace?  52.212-4 says remedies available at law.  Thus, the question is what remedies are available at law for buyer to exercise against a contractor that is terminated for cause.  Therefore, my question is simply is what legal remedy allows a buyer to recover reprocurement costs from a seller that has been terminated for cause. 

    Breach of contract damages.

  4. 1 hour ago, here_2_help said:

    FYI, it's the DCAA's position on calculating the value of an ID/IQ contract for purposes of determining CAS applicability. I don't like it and many others have suggested that CAS be applied on a TO/DO basis rather than on the maximum ceiling value of the parent contract (similar to how TINA and LOC/LOF requirements are implemented) … but here we are. DCAA uses the max ceiling value, regardless of our view of the logic of it.

    I think that an argument can be made that the CAS clause in the parent IDIQ contract should only apply to orders that would otherwise be CAS-covered. By operation of FAR 52.216-18, the terms and conditions of the IDIQ apply to orders issued under the IDIQ. If a contractor receives an order under a parent IDIQ contract that contains FAR 52.230-2, then that clause applies to the order. However, the requirements of the clause are premised on whether or not the contract is exempt. The clause begins with:


    Unless the contract is exempt under 48 CFR 9903.201-1 and 9903.201-2...

    We know from the Kingdomware decision that a task or delivery is a "contract" as defined at FAR 2.101. Thus we can reasonably interpret the above use of "contract" to mean the task or delivery order.  

  5. 23 minutes ago, aordway said:

    Don - I really respect you and your knowledge, and often look to you for guidance on these forums. But I can't shake the feeling that your comments can sometimes have the flavor of smugness rather than charity. Whether ji20874 responded to you as you desired or not, his posts felt earnest in trying to provide info to solve the problem, rather than being tight-lipped and inquisitory for effect. Just my two cents. I appreciate you both nonetheless.

    Thanks for the feedback, @aordway

  6. 1 hour ago, Ibn Battuta said:

    Question: "Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO[?]"

    Answer: No, not if we take the word "request" literally. Here is FAR 16.505(b)(1)(iii)(B):

    Thus, the notice informs contractors that they may submit offers. Based on the plain language of the FAR, a notice does not request anything. Now look at the definition of solicitation in FAR 2.101:

    According to my dictionary, The American Heritage 5th, a request (noun) is "an act of asking for something." See FAR 1.108(a). I don't see any language in FAR 16.505(b)(1) that tells COs to ask for anything; it tells them only to announce the chance to offer something.

    So, based on plain English, my answer to the question is no, a FAR 16.505(b) notice is not a request to submit offers or quotes. It is an announcement that offers or quotes may be submitted. It is not a solicitation.

    Thank you for doing what @ji20874 was incapable of doing.

  7. 51 minutes ago, ji20874 said:

    If you disagree with me, Don, please explain why -- I might learn something.  And I'm still wondering from an earlier question you haven't answered:  Do I err by not including the bankruptcy clause in fair opportunity notices over the SAT?

    Let me get this straight. You make the following claim:


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

    Wondering how you reached that conclusion, I ask a simple question:


    Is a fair opportunity notice a request to submit offers or quotations to the Government?

    You dodge the question multiple times, then wonder why I haven't responded to you?

    Is this you being intellectually honest? By "meaningful and professional dialogue", do you mean we can make whatever claims we want without having to bear the burden of proof? And this is the direction we should move in?

  8. 15 hours ago, ji20874 said:

    FAR 16.505(b)(1) uses the word “notice,” not “solicitation,” to refer to a fair opportunity order announcement.  I believe this is purposeful.  I use the word “notice” in my own practice, not “solicitation.”  A fair opportunity notice is not a solicitation within the construct of the FAR, even though it may be informally (sloppily?) referred to as such within our community

    Is a fair opportunity notice a request to submit offers or quotations to the Government? YES or NO

  9. 17 hours ago, Fara Fasat said:

    I go to Federal Acquisition Regulation (FAR) | Acquisition.GOV to download the complete FAR and various agency supplements. Today I went there to get updated versions, and the complete FAR is still there in pdf, word, and html versions. But unless I'm looking in the wrong place, the supplements are only available in individual sections. I can't find a link to download, for example, the entire DFARS, or AFARS, etc. 

    I really don't want to download 52 individual parts for each agency that I work with. Am I looking in the wrong place? Did I miss something?

    No, I think that's the way it is. A former colleague of mine at DAU went through the trouble of making a single file for the entire DFARS in pdf. It used to be on the DFARS landing page on the FARSite, but that site no longer exists.

  10. 19 hours ago, formerfed said:

    I’m not advocating this but a well known CIO had a way of dealing with these issues.  His agency made multiple awards and each awardee received some task order work.  After that new task orders were awarded based primarily on past performance.  He did the assessment.  If a company didn’t perform well or tried something like your questions suggested, they didn’t receive any new work for quite some time.

    What if the company didn't do what they said they were going to do, but performed well?

    17 hours ago, formerfed said:

    Questions for orals with Agile are straight forward.  How many points do you typically include in a sprint?  How many sprints are part of a release?  What’s your experience using multiple teams in parallel to speed up development?  What issues have you encountered combining parallel efforts?  How long is your daily standup?  What is your average velocity?  What’s the ideal sprint duration for your teams? 

    I could go on and on.  Experienced developers will bore you with answers.  It doesn’t take skill or a good image.  Just having done it a few times.  These aren’t technical questions either.

    I think the responses to those questions would be verifiable. The offeror would report facts. That could yield useful information in predicting an offeror's performance.

    However, that's different than:

    On ‎12‎/‎28‎/‎2019 at 2:58 PM, formerfed said:

    how a company plans on tackling the effort

    A company’s development philosophy and methodology

    how their process adheres to the government’s development processes

    how the contractor plans to partner with the customer to manage the product backlog

    their plans to demo software to the program office user

    If you request this information, you will get unverifiable nonbinding statements about the future. The offeror will have to invent responses instead of report facts. This information is not as useful in predicting how an offeror would actually perform. As Matthew wrote, this introduces noise into the decision-making process.

  11. 2 hours ago, Retreadfed said:

    This clause does not apply to contracts awarded to SDVOSBs or HUBZone SBs. 

    You mean contracts awarded under the SDVOSB and HUBZone programs, correct? The clause would apply to an SDVOSB or HUBZone SB that won a small business set-aside. 

  12. 13 hours ago, formerfed said:

    This is getting away from the original thought and that’s use of a SOO and oral interactions.  The idea of a SOO is getting a variety of innovative and competitive approaches.  If only experience and past performance is evaluated, how do you differentiate among approaches?  What if one offeror uses a scrum methodology, another uses lean, and a third proposes.  Let’s say the offeror using scrum stumbles through orals with poor answers.  The one with lean can’t produce employees for the orals with extensive knowledge but their experience is good.  The third using kanban did a great job in orals but your CIO doesn’t know it well and isn’t comfortable.  How do you evaluate the three?

    1. What assurance would you have that the "approach" presented in response to the SOO would be the "approach" that the offeror would use in performing the contract?

    2. What evidence do you have that a person stumbling through an oral presentation with poor answers correlates to poor software development? Developing software and providing oral responses to technical questions are not the same skills. I would not expect software developers to impress at an oral presentation. I would expect them to be more like Elliot Alderson.

    3. What assurance would you have that the people answering the questions in an oral presentation would be the people developing the software?

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