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Don Mansfield

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Posts posted by Don Mansfield

  1. @Jacques,

    Thanks for your explanation. 

    1 hour ago, Jacques said:

    We should be suspicious of any interpretation of the DFARS that ASSUMES the DFARS language is a deviation from a requirement in the FAR.  These sorts of interpretations resemble those "revocation by implication" interpretations that are disfavored when interpreting a statute.  Rather, the normal rules on interpretation should be used, which includes harmonizing the language of the two regulations when they can be.

    I agree with this, but I think that you also need to keep in mind that when the DFARS conflicts with the FAR, it's usually by design. I'm not sure you can typically make that assumption when harmonizing conflicting statutes or regulations.

    Good discussion. Thank you.

  2. 1 hour ago, Jacques said:

    Do you really want to use this example?  "Customary"?  Where FAR 32.501-1(b)(2) permits "advance agency approval" to use a higher rate?  I just want to make sure this is the example you want to use before I start researching.

    No, you can skip the example. I think I'll be able to understand your concept of "deviation" if you just answer my last two questions. 

  3. @Jacques,

    Bad example. My apologies. Let's try this one instead.

    FAR 32.501-1(a):


    The customary progress payment rate is 80 percent, applicable to the total costs of performing the contract. The customary rate for contracts with small business concerns is 85 percent.

    DFARS 232.501-1(a):


    The customary progress payment rates for DoD contracts, including contracts that contain foreign military sales (FMS) requirements, are 80 percent for large business concerns and 90 percent for small business concerns.

    Is the DFARS deviating from the FAR? Yes or no?

    DFARS 201.304(a)(1)(iv) states that the DFARS contains "deviations from FAR requirements"? You wrote:


    When the DFARS was modified to add this language, I took it to mean that deviations would appear in the DFARS proper rather than the newly-created DFARS PGI.

    What did you mean by that? What would be an example of a deviation in the "DFARS proper"?

  4. 20 minutes ago, USN1102 said:

    Semantics aside, if I understand correctly:

    1. As FAR 16.301-3(a)(2) is just repeating the requirement stated at FAR 7.103(e). DoD deviates from the FAR requirements for written APs as seen in  DFARS 207.103(d)(i)(B).  Therefore no written AP is required. 

    2. However, per Class Deviation 2019-O0001, the procurement in question being CPFF between $25M and $50M, my HCA approval is required prior to award.

    3. On a broader policy perspective, using the FAR 5.301/DFARS 205.303 public award announement example, there is a clearly traceable Part 5 "deviation" from $4M to $7M. The same approach can be used for my intial written AP query: DFARS 207 deviates from FAR 7.03 therefore, as a DoD 1102, I follow that written AP DFARS policy even though DFARS Part 216 is silent on deviating FAR 16.301-3(2) by the virtue that Part 7/207 "Acquisiton Planning" is more germane for all things written AP.

    1. Correct.

    2. Not sure. Can't access deviation.

    3. Correct. 

  5. @Jacques,

    Let's try this. FAR 5.301(a) states:


    Contracting officers shall make information available on awards over $4 million (unless another dollar amount is specified in agency acquisition regulations) in sufficient time for the agency concerned to announce it by 5 p.m. Washington, DC, time on the day of award.

    DFARS 205.303(a)(i) states:


    The threshold for DoD awards is $7 million. Report all contractual actions, including modifications, that have a face value, excluding unexercised options, of more than $7 million.

    Is DFARS 205.303(a)(i) a deviation from a FAR requirement? Yes or no?


    11 minutes ago, Jacques said:

    There is no written deviation because there is no need for a deviation because the FAR doesn't require what you seem to assume it does.

    I'm not assuming anything. FAR 7.103(e) states:


    A written plan shall be prepared for cost reimbursement and other high-risk contracts other than firm-fixed-price contracts, although written plans may be required for firm-fixed-price contracts as appropriate.


  7. Jacques,

    According to DFARS 201.301(a)(1), the DFARS contains--

                        (i)  Requirements of law;

                        (ii)  DoD-wide policies;

                        (iii)  Delegations of FAR authorities;

                        (iv)  Deviations from FAR requirements; and

                        (v)  Policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors.

    The different thresholds for written acquisition plans in the DFARS are a deviation from FAR requirements.

  8. 22 hours ago, Sherrie Walters said:

    I currently work for the Department of the Navy and have a customer who wants my agency to contract for a no cost award. It is a service being performed for the Navy (removal of used oil) that the contractor will then be able to clean and sell for their profit. There will also be a requirement for a COR as the Government has a responsibility to review/confirm that the vendor has all of the proper Federal and State licenses required along with other duties they will need to perform. I have been getting conflicting information about the correct way to proceed. I need to know if it should be done as a purchase order "P" or contract "C" award. The only thing we can evaluate is past performance and responsibility which leans toward it being a "C" award. If anyone has done one recently for the Navy, please let me know how you awarded it. Thanks in advance.

    I don't think what you're describing meets the definition of "acquisition" at FAR 2.101, because you wouldn't be using appropriated funds. If that's true, then the FAR doesn't apply. I'm not saying it couldn't be done, just that the contracting would not be regulated by the FAR.

  9. 6 hours ago, ji20874 said:


    I am unaware of any agency policy on this matter.  My teaching to my peers is that if the fill-ins for FAR 52.212-4 with its Alt. I are blank (they usually are), then they should be read as "None."  To me, that's the only fair reading.

    I wish more contracting officers and contractors would actually read the text of the clauses in their contracts.

    I admit taking a hard line on this matter because I really expect contracting officers and contractors to read the text of the clauses in their contracts.  There are two principles that guide me--

    1. If a prospective contractor wants something from a contract, it should negotiate for it pre-award. 
    2. A contracting officer should not make payment post-award unless the contract allows for it. 

    I think that's perfectly fair. However, I don't get why there would be a fill-in for "(e)(1)(iii)(D)":

    6 hours ago, ji20874 said:

    fill-ins:  (e)(1)(iii)(D):    None

    (i)(1)(ii)(D)(1):  Travel.
    (i)(1)(ii)(D)(2):  None.

    I see the fill-ins for (1) and (2) in the clause, but why would there be the first "None" fill-in?

  10. 13 hours ago, Corduroy Frog said:

    Since then, it appears Disallowance of G&A on Travel is sweeping the industry like an epidemic.  We are told (as several contractors in Huntsville AL have been told) that G&A is not going to be allowed on Travel.  One of the agencies said there is a new FAR clause disallowing it.  When I raised the discussion a few months ago, no one on this forum was aware of such a "new FAR clause."

    I direct your attention to 41 USC 1707:



    (a)(1) Required comment period.—Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it—

    (A) relates to the expenditure of appropriated funds; and

    (B)(I) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

    (ii) has a significant cost or administrative impact on contractors or offerors.


    1. Are agencies adopting a policy, regulation, or procedure to disallow G&A on travel?

    2. Does this policy have a significant cost or administrative impact on contractors or offerors?

  11. 1 hour ago, joel hoffman said:

    If Don Mansfield agrees with you, then HE ought to be able to provide definite references to legally support such upfront reimbursement in payments based on progress of work performed..


    I think you've been misinterpreting me. I don't have a position on whether subcontractor bonds are included in FAR 52.232-5(g). My point is that the definition of "bond" at FAR 28.001 is not relevant to making that determination. ALAL suggested that it was and that's why I threw the flag for misapplication of FAR definitions.

  12. On ‎10‎/‎1‎/‎2019 at 3:19 PM, Try2B said:

    At the time, the organization was experiencing issues with the contract writing system, which resulted in the CLINs being inadvertently fully funded, thus over-obligating the $500K funding document by $300K.

    No, the Government created an obligation of $500K regardless of what the computer spit out. If the agency's books reflected an obligation of $800K, then that would violate the Recording statute--not the Anti-Deficiency Act.

  13. 3 hours ago, joel hoffman said:

    Well, Don,  the Board decisions didn’t  agree with you that the performance and payment bonds mentioned in the Payments clause aren’t the Miller Act Bonds required by the contract. There were no other bonds required by the involved contracts . 

    And Nash and Cibinic apparently didn’t, either in the contract interpretation section that I mentioned. 

    Since you are a Professor, you probably have access to both the book and Lexis to read the decisions cited in Administration of Government Contracts. The decisions include other citations, some of which are pertinent.

    while we are at it, the Definitions clause isn’t applicable because the word or term isn’t defined in Part 2 nor is it  “defined” in 52.232-5 separately from the specific requirements in 52.228-15 or elsewhere in the contract, if applicable..

     Thus, when there are no other required bonds, the performance and payment bonds refer to the MillerAct bonds (SF 25 and SF 25a), whether they be from individual sureties or acceptable Corpoate Sureties. 

    @joel hoffman

    Nothing that you've cited dealt with the issue of whether the definition of "bond" at FAR 28.001 is the applicable definition for interpreting "bond" as used in FAR 52.232-5(g). In that respect, your citations are inapposite.  


  14. @joel hoffman,

    Nothing you posted proves that the definition of "bond" at FAR 28.001 is the applicable definition when that word is used at FAR 52.232-5(g). You continue to ignore FAR 1.108(a) and the Definitions clause. The Definitions clause specifically makes the definitions at FAR 28.001 applicable to clauses prescribed in FAR part 28--not other clauses prescribed in other parts (like FAR part 32). You continue to write that contracts must be read as a whole, but your reading excludes the Definitions clause.

  15. 8 minutes ago, joel hoffman said:

    If you think that the clause at 52.232-5 isn’t referring to the performance and payment bonds required by the contract at 52.228.15, then this thread is an example of what can go wrong when we lack common sense! 

    That clause refers to progress and final payments for all of the contract performance requirements. 

    That does not make the definition at FAR 28.001 applicable to FAR 52.232-5. Try again.

  16. joel,

    That's not how definitions work. A word or term used in one clause does not necessarily have the same meaning when used in a different clause because the two clauses are in the same contract.

    You are ignoring the clear rule in FAR 1.108(a):


    Words and terms. 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.

    Thus, the definition of "bond" at FAR 28.001 only applies to FAR part 28. If a contract contains the Definitions clause, then that definition extends to clauses prescribed in FAR part 28. FAR 52.232-5 is not prescribed in FAR part 28, so there's no basis for your assertion that the definition of "bond" at FAR 28.001 applies to FAR 52.232-5.

    I think this thread is a good example of what can go wrong when we lack intellectual humility

  17. 3 hours ago, Jacques said:

    Exactly, The GAO avoided getting to the merits on ServeFed because it claimed it didn't have jurisdiction to hear the protest.  However, in decisions like LBM, Inc., which was decided when an earlier version of 10 USC 2304c was in place, the GAO said it HAD jurisdiction (even though the value of the task order was under the jurisdictional threshold at the time).  @napolik seems to be suggesting I should look to changes in the statute to explain the difference between the two decisions as to the issue of jurisdiction, but I haven't had a chance to do that yet.

    I think you should take a closer look at LBM. The issue was that the requirement was subject to the rule-of-two analysis because it wasn't within the scope of the competition of the IDIQ contract it was being transferred to. That's still good law. We discussed LBM here (you participated):

    Delex was the case where the GAO said the rule-of-two applied to task and delivery orders. That's no longer good law due to subsequent statutory and regulatory changes @ji20874  discussed in his post.

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