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Don Mansfield

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Blog Comments posted by Don Mansfield

  1. Jacques,

    I mean that COs are not required by the FAR to set aside acquisitions for small businesses overseas. If an overseas contracting office adopted such a policy, it would be a deviation as defined by FAR 1.401(f). A policy need not conflict with the FAR to be a deviation as defined by FAR 1.401(f).

    I think that if there were a protest against an overseas CO for not setting aside an acquisition when required by 13 CFR 125.2(f), the Government would lose. I don't think reliance on FAR 19.000( b ) would work as a defense anymore, given the change in the SBA regulations. This is probably why the State Department and the Army aren't fighting these protests.

  2. My point is you haven't explained very well (IMHO) the basis underlying your statement, "Overseas COs must deviate from the FAR to comply with the

    Small Business Act and SBA regulations." If I have to have an affirmative point of my own, it is expressed in my prior post, which is, "A PCO can simultaneously comply with the new SBA regulation and FAR 19.000( b ), because FAR 19.000( b ) does not require a PCO do anything or refrain from doing anything."

    It is not my desire to divorce this conversation from its context, which includes SBA's change to its regulation discussed in your blog post (13 CFR 125.2). You seem to believe a PCO is faced with two irreconcilably conflicting authorities--that is, two authorities with which the PCO cannot simultaneously comply (or cannot simultaneously comply without, in your words, a deviation). I do not; or at least you haven't convinced me yet why I'm wrong (understanding you're not obligated to do so).

    Jacques,

    Assuming, arguendo, that overseas COs could set aside acquisitions for small business concerns without deviating from the FAR, they are not required to. If an overseas contracting office were to issue a policy mandating set-asides pursuant to 13 CFR 125.2(f), that would be a deviation as defined at FAR 1.401(f).

  3. Jacques,

    Before this discussion gets too unwieldy, let me try to summarize your argument. According to you, FAR 19.000( b ) should be read something like this--

    This part, except for Subpart 19.6, applies only in the United States or its outlying areas. Subpart 19.6 applies worldwide. However, it does not preclude application of the policies and procedures of other subparts worldwide.

    Is that what you're saying?

  4. Jacques,

    FAR 17.200 states:

    This subpart prescribes policies and procedures for the use of option solicitation provisions and contract clauses. Except as provided in agency regulations, this subpart does not apply to contracts for

    (a) services involving the construction, alteration, or repair (including dredging, excavating, and painting) of buildings, bridges, roads, or other kinds of real property;

    ( b ) architect-engineer services; and

    ( c ) research and development services. However, it does not preclude the use of options in those contracts.

    You may want to use a different example.

    I don't know what you mean by "deviation package", so I don't know how to describe what one would look like.

    Using the policies and procedures of FAR subpart 19.5 outside the United States and its outlying areas would be a deviation (as defined at FAR 1.401(a)) from FAR 19.000( b ), which limits application of FAR part 19 to the United States and its outlying areas. You seem to suggest that the FAR already permits a CO to limit competition to small business concerns regardless of place of performance. However, such an interpretation renders FAR 19.000( b ) meaningless.

    If an overseas CO were to limit competition to small business concerns for a contract requiring performance overseas, they would need quoters or offerors to represent themselves in connection with their quote or offer. Use of the provision at FAR 52.219-1, Small Business Program Representations, in a solicitation when the contract will be performed outside the United States and its outlying areas would be a deviation (as defined at FAR 1.401(e)) from the prescription at FAR 19.309( a )(1). Same goes for use of FAR 52.219-2, Equal Low Bids, and FAR 52.219-28, Post-Award Small Business Program Rerepresentation.

  5. Jacques,

    Per FAR 19.000( b ), the policies and procedures of FAR part 19 do not apply outside the United States and its outlying areas. Thus, if a contracting officer outside the U.S. and its outlying areas were following the policies and procedures of FAR subpart 19.5 (i.e., limiting competition to small business concerns), their actions would be inconsistent with the FAR. This would meet the definition of "deviation" at FAR 1.401( a ).

    You suggest that a CO can solely rely on FAR 6.203 to limit competition to small business concerns for overseas COs. Yes, FAR 6.203( c ) directs compliance with FAR subpart 19.5, but you can't ignore FAR 19.000( b ). Even if I bought your argument, which I don't, it would not permit set-asides when using SAP per FAR 6.001( a ).

  6. "DFARS 252.225-7001(a)(ii)(A)"

    The "(a)(3)(ii)(A)" is pretty clearly a mistake. They meant (a)(ii)(A). See the citation in the third line from the top of page 15 and in the seventh line from the bottom.

    The IG appears to infer an administrative obligation to perform a component assessment based on the terms of the clause, paragraph ( c). The IG apparently believes that the clause imposes a duty on the CO to ensure contractor compliance with the terms of the contract.

    Lots of contract clauses impose obligations on contractors without expressly requiring the CO to ensure compliance. Take a look at FAR 52.246-2, Inspection of Supplies -- Fixed Price (AUG 1996). It requires the contractor to perform quality assurance, but expressly denies any obligation on the part of the government to inspect or to check the contractor's QA work, merely giving it the right to do so. But what CO would say that he or she has no duty to inspect deliveries to ensure conformity?

    The IG didn't trash the ACC. It seems to be doing little more than putting the ACC on notice that someone might ask it how it knows that the contractors are complying and not lying and that it ought to have an explanation. A fairly gentle heads up. It's up to the command to decide what if anything to do. Of course, they'll never be able to do component assessments on a significant number of contracts, even with training.

    Don't be angry with them, Grasshopper. They're just doing what IGs do.

    "DFARS 252.225-7001(a)(ii)(A)" is not a valid citation, either. Paragraph ( a ) isn't broken down into (i), (ii), (iii), etc. Some of the definitions use (i), (ii), (iii), however.

    A CO's duty to inspect deliveries to ensure conformity of supplies or services is stated at FAR 46.103( d ) and FAR 46.104( b ).

    I'm not angry with the IG. I'm disappointed with the ACC's reaction. Instead of making the IG substantiate their position, they are going to make all of their contracting personnel take a three-hour online course that doesn't address what the IG thinks it does.

  7. PhiSig615,

    The term "collection of information" is more completely defined at 5 CFR 1320.3( c ). In relevant part--

    A “collection of information” may be in any form or format, including the use of report forms; application forms; schedules; questionnaires; surveys; reporting or recordkeeping requirements; contracts; agreements; policy statements; plans; rules or regulations; planning requirements; circulars; directives; instructions; bulletins; requests for proposal or other procurement requirements; interview guides; oral communications; posting, notification, labeling, or similar disclosure requirements; telegraphic or telephonic requests; automated, electronic, mechanical, or other technological collection techniques; standard questionnaires used to monitor compliance with agency requirements; or any other techniques or technological methods used to monitor compliance with agency requirements. A “collection of information” may implicitly or explicitly include related collection of information requirements.

    [bold added].

    As such, there's no doubt that the PRA applies to conducting acquisitions.

  8. bently78,

    Thank you for commenting.

    Using your example, let's say a solicitation required offerors to collect information from 5 references and two offerors submitted proposals with five references each. Wouldn't that be collecting information from 10 members of the public?

    Having said that, my post was written from the perspective of the administrative burden placed on offerors to obtain (or cause to be obtained) information on their past performance. (I hadn't considered the administrative burden placed on those completing the questionnaires because those are typically Government employees). If you count up all of the offerors being required to obtain (or cause to be obtained) information about their past performance in response to your agency's solicitations, wouldn't you reach 10?

    Regarding the OFPP document, there is actually an approved information collection under OMB Control No. 9000-0142 to "provide offerors an opportunity to identify past or current contracts (including Federal, State, and local government and private) for efforts similar to the Government requirement." The corresponding rule is at FAR 15.305(a)(2)(ii). Given that, maybe the author didn't see the need to advise agencies to comply with the PRA if they were only going to "ask" for the information. In any case, I doubt that document was coordinated with OIRA.

    I don't think you are interpreting 44 U.S.C. 3502(3) correctly. You should read it like this--

    “the term ‘collection of information’ – (A) means the

    1) obtaining,

    2) causing to be obtained,

    3) soliciting, or

    4) requiring the disclosure to third parties or the public,

    of facts or opinions by or for an agency, regardless of form or format...

    If it's 1, 2, 3, or 4, it's a collection of information.

  9. I e-mailed FedBid with the following questions:

    1. If a buyer sets an ATP, is it possible for the buyer to lower the ATP during a reverse eAuction?

    2. In a reverse eAuction where an ATP is being utilized, is it possible for a seller?s status to change from ?Lead? to ?Lag? if no other bids have been submitted?

    This is the response I got:

    The Buyer cannot change the active target price during the course of the Buy. The Buyer would need to re-post the Auction to change the active target price. With a re-post, all bids would be removed and you would need to place a new bid.

    If the target price is active, and the seller is given a status of lead after placing a bid, the only way that status could change to lag is if another seller placed a more competitive bid price.

    As such, I don't think the use of ATP explains what happened to the vendor.

  10. I don't know the details. My source may not have been referring to the particular case you described. The source is reliable and said that there is no phantom bidding. I don't think he'd lie. That's all I know.

    I'm not saying that your source is lying, but I think he was just taking a guess at what happened. Without knowing the details, I don't think anyone can say that the story is false.

    In any case, I sent your comment to the vendor and asked for a response. This is what he wrote back:

    They may have been using ATP, I don't know. In this particular case, whenever we resubmitted the bid, we were shown to be in the lead for a short period of time, then lagged again, so "Someone" was entering a bid in response to our reduction. At the conclusion of bidding, we found out there were no other (genuine) bidders.

    My employer was well known to the customer and also what our services and prices for those services were. If they established an ATP, one wonders how they did it. Some wishful number, or the budget available? I should point out that this was for services, not products. In either case, an inquiry about pricing details would have gotten the customer an answer.

    [...]

    I am quite familiar with auctions (classic automobiles being a hobby, see Barrett Jackson, etc.), and if the customer has an ATP or reserve, it would only be fair and ethical to announce that. The amount does not need to be disclosed, only that an ATP applies. In that case, instead of being informed that we are lagging, a "Reserve (or ATP) not met" announcement would pop up.

  11. Retreadfed,

    As you know, the CAS Board has not issued an interpretation of how to apply dollar thresholds in the case of IDIQ contracts. For that matter, neither has a board or court. However, we do know that trial courts have been instructed by the CAFC to use related regulations for interpretative guidance when interpreting CAS (ATK Thiokol, Inc. v. U.S., 68 Fed. Cl. 612 (2005)). I don't think that there's a more "related" regulation to CAS than FAR (both chapters within the same title of the CFR), which contains interpretative guidance on how to apply dollar thresholds at FAR 1.108( c ). Given these facts, it is more reasonable than not to use FAR 1.108( c ) to interpret dollar thresholds in CAS.

    The statement in FAR 16.504 provides guidance to agencies on establishing a minimum quantity in an IDIQ contract. It has no effect on my conclusion that, in applying dollar thresholds, one must consider the maximum potential amount of the IDIQ contract.

    I understand your point about multiple award contracts--most such contracts probably don't come close to reaching their maximum amounts. However, the same is true for some single-award IDIQ contracts and this fact doesn't affect how we are to apply dollar thresholds.

    I would like to see the CAS Board recognize IDIQ contracts and make a clear interpretation of how we are to apply CAS to them. In my opinion, it makes the most sense to determine CAS applicability at the task/delivery order level, like TINA.

  12. Hi, Joe,

    I originally tried to make a decision tree, but it became too unwieldy. Maybe somebody more skilled than me at decision trees can make one from the decision table. I thought it would be neat to make a program where one could answer a series of yes/no questions to arrive at an answer, similar to the Buy Accessible Wizard for Section 508 compliance (www.buyaccessible.gov). Maybe in the future.

  13. Darby8001,

    Thank you. Somebody sent me that decision just a few days after I made this blog entry. Note that the ASBCA limited their interpretation of "contract" to include delivery orders solely to determine CDA jurisdiction. This raises another question--Why did the parties in the case refer to FAR definition of "contract" to interpret the Contract Disputes Act? The definition of "contract" at FAR 2.101 only applies to the use of that word in the FAR.

  14. here_2_help,

    As I wrote in one of my earlier blog entries, the FAR Councils have stated that CAS determinations are made at the "whole contract" level in the case of indefinite delivery contracts (see ?Commonly Understood? I Think Not). No, I won't argue that it makes sense.

    As far as determining CAS applicability for an indefinite delivery contract, I would say that the contract value is the maximum amount of the contract in accordance with FAR 1.108( c ). FAR 1.108 says "The following conventions provide guidance for interpreting the FAR...", so I assume that includes the FAR Appendix.

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