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Don Mansfield

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Posts posted by Don Mansfield

  1. 2 hours ago, Lionel Hutz said:

    Did the contracting officer comply with applicable laws and regulations concerning how to solicit and award a contract?  No.

    Do you know of any cases where:

    1) Government did not exercise option on time

    2) Contractor kept working/Government kept overseeing

    3) Government sent notice of option exercise late

    4) No change to contract terms and conditions

    5) Third party protests that Government violated CICA

    6) Third party won case?

    If what your saying is true, I would expect there to be such a case. 


  2. 2 hours ago, Desparado said:

    Don - I read those decisions I have a question that I couldn't find the answer to in any of those cases.  When does a contract "expire"? 

    For purposes of interpreting FAR 52.217-9, I think the contract expires when the period of performance is over. That seems to be what the Board assumed in American Contract Servs., Inc., ASBCA 46788, 94-2 BCA ¶ 26,855, recons. denied, 94-3 BCA ¶ 27,025, aff'd, 53 F.3d 348 (Fed. Cir. 1995).


    2 hours ago, Desparado said:

    Are there any cases (I couldn't find any) that would set a precedent on the legality (or lack thereof) of exercising an option after the PoP ends?

    I don't think it's illegal, it's just not in compliance with the contract. The contractor can waive Government noncompliance, just like the Government can waive contractor noncompliance.

  3. I think the best you can do is exercise the option late and request that the contractor waive its right to object to an improper exercise. If the right to object to an improper option exercise can be waived implicitly through performance, then it can be waived expressly. Here are some cases where the contractor waived its right:



    Objection to improper exercise waived by performance

    Walters & Co., Inc. v. U.S. (CtCl 1978) 24 CCF ¶81,806, 576 F2d 362; aff'g (1976) ASBCA No. 19335, 76-1 BCA ¶11,767.

    Continued performance without objection waived defective exercise

    Contract Automotive Repair and Management v, GSA (1999) GSBCA Nos. 12773, 12774, 13627, 99-2 BCA ¶30,530.

    Performance of option without objection caused waiver of right to object

    USD Technologies, Inc. (1987) ASBCA No. 31305, 87-2 BCA ¶19,680.


    If the contractor objects to the improper exercise and wants to renegotiate terms, then I think you would have a CICA issue (i.e., you would have to justify negotiating on a sole source basis).

  4. 27 minutes ago, Amart said:

    I notice you responded to the first part of my post but not the part about the incentive to stonewall.  How would you mitigate/counter that under your proposed regime?

    The general rule would be to treat all items as commercial. An exception would be if the contractor was performing or had performed within the last year a fully-covered CAS contract or subcontract. 

  5. 5 hours ago, Lionel Hutz said:

    Does your situation fall in one of the above three scenarios?  If so, bring DFARS 204.7103-1(a)(4)(ii) to the legal office's attention.  If not, you're out of luck unless you can find some other authority to include multiple accounting classification citations on one contract line item.

    Multiple accounting classifications under a single line item is also permitted when using separately identified subline items. DFARS 204.7104-1(b)(1)(i):



     (b)  Separately identified subline items.

                  (1)  Subline items will be used instead of contract line items to facilitate payment, delivery tracking, contract funds accounting, or other management purposes.  Such subline items shall be used when items bought under one contract line item number—

                        (i)  Are to be paid for from more than one accounting classification.  A subline item shall be established for the quantity associated with the single accounting classification citation.


    Contrast the examples at DFARS PGI 204.7104-2(e)(6) and (7).

  6. 5 hours ago, Amart said:

    I disagree with this suggestion.  As it currently stands, the Contractor is in the best position to provide evidence in support of its assertions that its product fits one of the eight definitions of commercial item (e.g. sales figures, marketing documents, internal emails).

    If the burden switched to the Government, you'd be forcing the party without any of that data to prove a negative.

    Why couldn't the Government obtain the data from the contractor? Doesn't the Government obtain data from the contractor to determine price reasonableness? I think it's called cost or pricing data or something like that. 

  7. @Hammspace,

    Harris IT Service CorporationB-411699; B-411796, October 2, 2015, is the only case I know of where the issue of an "IDIQ under an IDIQ" was addressed. The test the GAO applied was whether the original task order contained the information required by FAR 16.505(a)(7). In that case, the GAO determined that the original task order did not. Therefore, they concluded that the task order was an improper IDIQ under an IDIQ. 

    The auditor seems to be applying a different standard--probably one they thought up.

  8. @Hammspace,

    Does the original task order contain the information at FAR 16.505(a)(7)?



    (i) Date of order.

    (ii) Contract number and order number.

    (iii) For supplies and services, line item number, subline item number (if applicable), description, quantity, and unit price or estimated cost and fee (as applicable). The corresponding line item number and subline item number from the base contract shall also be included.

    (iv) Delivery or performance schedule.

    (v) Place of delivery or performance (including consignee).

    (vi) Any packaging, packing, and shipping instructions.

    (vii) Accounting and appropriation data.

    (viii) Method of payment and payment office, if not specified in the contract (see 32.1110(e)).



  9. @Joe2713,

    The FAR regulates a lot that goes on in acquisition, but not everything. The FAR excerpt provided by Matthew provides guidance on what you do when you want to do something that the FAR has nothing to say about. It's very important to how you approach acquisition. Instead of looking for permission to do something in the regulations, assume that you have permission unless prohibited by prohibited by law (statute or case law), Executive order or regulation. If you are a beginner, print out FAR 1.102-4(e) and post it somewhere you can see it when working on your computer. From now on, read it before looking something up in the FAR. 

  10. 15 hours ago, Michael11 said:

    Wouldn’t the government be ticked if you included them in your bid, won, and then competed the subcontract post award and it had to go to someone else. If the government awards without discussions isn’t that sort of what you’re left with?

    Maybe. If it were that important, the Government could make your use of a proposed subcontractor a term of the contract. 

  11. @Michael11

    The point I was making was that the regulation you cited applies after award. If you are responding to a solicitation, the proposal preparation instructions are what matter. These may or may not require that your subcontract cost estimate be based on an actual competition. The instructions could just request that you provide a basis for your estimate, in which case you could potentially use another reasonable basis (e.g., competitive prices of past subcontracts, prices obtained through market research, etc.). 

  12. 15 hours ago, Michael11 said:


    200.320 section D1 says:

    (d) Procurement by competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed price or cost-reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply:

    (1) Requests for proposals must be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals must be considered to the maximum extent practical;

    (2) Proposals must be solicited from an adequate number of qualified sources;




    They seem straightforward especially when considering post award. But, preaward it seems unreasonable to comply competing everying subcontract over $250k.

    Why do you think this must be done before award? The section you are referencing is in Subpart D--Post Federal Award Requirements.

  13. @hallowed,

    Just stumbled across this at DFARS 225.872-3(a):


    Except for items developed under the U.S./Canadian Development Sharing Program, use the criteria for soliciting and awarding contracts to small business concerns under FAR Part 19 without regard to whether there are potential qualifying country sources for the end product.  Do not consider an offer of a qualifying country end product if the solicitation is identified for the exclusive participation of small business concerns.


  14. 1 minute ago, hallowed said:

    Don, i appreciate if you answer these questions to make things clear for me:

    1. Are all solicitations -without a set aside code- unrestricted?

    2. Can a contract officer include clauses in unrestricted solicitations to exempt small businesses? Which parts should i pay attention to avoid any mistakes in the future?

    1. I don't know what you mean by set-aside "code". If the solicitation doesn't contain FAR 52.219-6, then it's not a small business set-aside. 

    2. That would be a first. Pay attention to FAR clauses in a solicitation that start with "52.219-" and contain the word "set-aside" or "8(a)" in the title. Don't respond to those solicitations.

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