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Don Mansfield

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Posts posted by Don Mansfield


  1. @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.


  2. @Hammspace,

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

    Quote

     

    (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)).

     

     


  3. @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. 


  4. 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. 


  5. @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.). 


  6. 15 hours ago, Michael11 said:

    https://www.law.cornell.edu/cfr/text/2/200.320

    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;

    https://www.law.cornell.edu/cfr/text/2/200.318

    https://www.law.cornell.edu/cfr/text/2/200.319

     

    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.


  7. @hallowed,

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

    Quote

    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.

     


  8. 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.


  9. 3 hours ago, hallowed said:

    No it doesn’t. One of them includes both far 52.219-6 and dfars 252.225-7002 which are contradicting clauses but the other one doesn’t have the far but dfars 252.225-7001 and 7002 only.

    I understand if they tell me not to quote for set asides again but don’t i have the right to compete for unrestricted ones?

    I don't know why you wouldn't, but I don't have the solicitation. Maybe there is some other reason. I think you should ask the contracting officer.


  10. 1 hour ago, ji20874 said:

    It is well-established practice that a set-aside clause’s very stringent requirement for a domestic product takes precedence over more loosely-written clauses that might seem to allow otherwise.  That’s normal with standardized clauses that are written for routine incorporation.

    I was able to find a case that supports this. See Bulloch International, IncB-237369, Feb 5, 1990. The Navy rejected a bid as nonresponsive under a small business set-aside where the bidder listed a "FMS/Off set arrangement country end product", in its Buy American Act certificate. The GAO denied the protest:

    Quote

    A bid as submitted must represent an offer to perform, without exception, the exact thing called for in the IFB, so that upon acceptance, the contractor will be bound to perform in accordance with all the terms and conditions of the IFB. Rocco Indus. (Inc., B-227636, July 24, 1987, 87-2 CPD Para. 87. Moreover, only material available at bid opening may be considered in making a responsiveness determination. DuHadaway Tool and Die Shop, Inc., B-216082, Aug. 29, 1984, 84-2 CPD Para. 239. Accordingly, since Hulloch's bid indicated both that (1) the firm would supply an item manufactured in Australia, and that (2) it would furnish only end items manufactured or produced by small business concerns in the United States, the contracting officer reasonably concluded that Bulloch's bid was nonresponsive in that it was not clear from the bid whether Bulloch would comply with the set-aside requirement to supply a product manufactured or produced in the United States. See Jarke Corp., B-231858, July 25, 1988, 85-2 CPD Para. 82.

     

    59 minutes ago, hallowed said:

    Would it take 6 awards to recognize that my company is not legitimate?

    That wouldn't surprise me.

    13 minutes ago, hallowed said:

    Do i have any rights arise from this other than the regular dispute process?

    Maybe. I suggest you seek counsel from an attorney.


  11. 1 hour ago, lotus said:

    I seek your comments and advice on how to be kept whole, to be paid for hours that my employees are locked out of their workplaces in Government buildings.

    I think that you are currently out of luck. However, when pricing future contracts you should include a reasonable contingency to cover the increased costs of a shutdown. We have the historical data on shutdowns. Remember this.


  12. 22 minutes ago, here_2_help said:

    Don, that is a good link for this discussion. Thanks!  The rule-making comments are a bit ambiguous (aren't they always?). My interpretation is that subsidiaries are not excluded from the rule; but it's not clear to me whether they are reportable as "first-tier subcontracts" (which they may not be in many circumstances) or reportable simply because they are part of the prime contractor. Would you like to answer Nena's question and educate me at the same time?

    I don't know for sure. I didn't read the whole FR notice. It was long and I think Nena's a lawyer, so if there was something pertinent I thought she'd find it. Sorry.


  13. @hallowed,

    When interpreting a contract under the common law, one must interpret it as a whole--not individual sections or clauses. See NVT Techs., Inc. v. United States, 370 F.3d 1153 (Fed. Cir. 2004), stating at 1159:

    Quote

    Contract interpretation begins with the language of the written agreement. Foley Co. v. United States, 11 F.3d 1032, 1034 (Fed. Cir. 1993). When interpreting the contract, the document must be considered as a whole and interpreted so as to harmonize and give reasonable meaning to all of its parts. McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434-35 (Fed. Cir. 1996). An interpretation that gives meaning to all parts of the contract is to be preferred over one that leaves a portion of the contract useless, inexplicable, void, or superfluous. Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991).

    The problem with your interpretation (i.e., the contract permits delivery of a foreign product) is that it renders FAR 52.219-6(d) meaningless. If we read FAR 52.219-6(d) and DFARS 252.225-7001(c) together, I think that the FAR clause is placing further restrictions on the source of the product.


  14. 41 minutes ago, hallowed said:

    If qualifying country products are not allowed then why there’s a clause in the contract? And why there’s even an QCP option to specify on the online quote form? If this clause exists in the contract doesn’t it mean that you can benefit from it?

    Good questions. I can see why you are confused.

    There aren't different versions of the clause at DFARS 252.225-7001--Buy American and Balance of Payments--one for small business set-asides and one for unrestricted acquisitions. I doubt the DAR Council even considered that option when creating the clause. That's probably because the FAR/DFARS Foreign Acquisition Committee is different than the FAR/DFARS Small Business Committee and there's no committee to make sure the different parts are coordinated. It doesn't occur to them that a small business competing for a set-aside could interpret a solicitation containing DFARS 252.225-7001 as permitting the delivery of a foreign product. 

    1 hour ago, hallowed said:

    And as far as i know, nonmanufacturer rule doesn’t apply for acquisitions between $3500 and $150,000 by which the SBA permits small businesses to supply from large businesses and/or non domestic products.

    The nonmanufacturer rule doesn't apply between the micro-purchase threshold and the simplified acquisition threshold. However, a small business must still provide a domestic firm's product. An SBA waiver of the nonmanufacturer rule permits a small business from providing any firm's product--including a foreign product.

    FAR 13.302-4(b) says that the contracting officer's notice of cancellation is supposed to request the contractor's written acceptance of the cancellation. Did the notice request this? If so, how did you respond? If you refuse the cancellation or claim that you incurred costs, the CO is supposed to handle it like a termination. 

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