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Don Mansfield

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Posts posted by Don Mansfield


  1. 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.


  2. 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.


  3. 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.


  4. 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.


  5. @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.


  6. 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. 


  7. 21 hours ago, hallowed said:

    I wrote an email to DLA today and told them that the decision is inconsistent with dfars laws. What i performed was within the contract clauses. And asked them to re-review the contract clauses in detail and reconsider the decision.

    The problem doesn't seem to be your compliance with DFARS. Assuming these acquisitions were set aside for small business, the problem is your compliance with FAR 52.219-6. As ji pointed out, FAR 52.219-6 requires your products to be domestic (unless the nonmanufacturer rule was waived). Qualifying country end products are not domestic.


  8. 1 hour ago, lotus said:

    Some agencies are probably shutting down.  One of my COR's has talked of furloughing contractor employees who work on Government site.

    Assuming the Govt does shut down, I'd like to keep my employees working billable hours, or otherwise recover the money that would be billed for billable hours worked.

    Any advice?

    Does the Government need to be open for your employees to work?


  9. 19 hours ago, Elaine said:

    I have been a Contract Specialist for 2 years and I work in R&D on a sole source IDIQ Contract. I consider myself an overachiever and self-motivated. Within the past 2 years, I have earned a NCMA CFCM certification, DAWIA Contracting level 2 certified, and completed Calculus 1-3 from a local University.

    In my office, our customer and management expects the 1102s to award delivery orders as quickly as possible. Management only cares about the quantity of actions awarded and little about quality.  For example, we are expected to: issue Order Request for Proposals prior to reviewing the SOW, on several occasions we have awarded modifications to extend the delivery schedule after the delivery order expired several months earlier. I am told by management to not overthink the work (basically not use my brain at all) but to just get it on contract. The engineers we support get offended if I ask questions because they think our only job as 1102s is to “just put it on contract.”

    I work really hard to educate myself in this career, but I feel like I am wasting my time because I am forced by management and my customer to award delivery orders or modifications as quickly as possible without putting much thought into my work.

    I am losing interest in this career field and I feel that if I hang around any longer, then I will become mediocre like others in my office. I would like transition to a different job series now. Any recommendations on the best job series to transition to? Any advice on the best ways to transition without taking a huge pay cut/lower grade?

    I just spoke to a well-known veteran of Government contracting who read your post. His advice was to run, don't walk, from the 1102 series. Don't put the experience on your resume and consider obtaining a new identity.


  10. @Retreadfed, I don't think so. Black's Law Dictionary contains the following entry for "term":

    Quote

    A contractual stipulation <the delivery term provided for shipment within 30 days>.

    And the following entry for "condition":

    Quote

     

    Loosely, a term, provision, or clause in a contract.

    “This term condition is generally used to describe any fact, subsequent to the formation of a contract, which operates to make the duty of a promisor immediately active and compelling. Such a fact may be described as such in a term of the contract or it may not. In either event, the term of the contract should not itself be called the condition. … It is not uncommon, popularly, to speak of a condition of the contract as synonymous with term or provision of the contract. This should be avoided.” William R. Anson, Principles of the Law of Contract 226 n.1 (Arthur L. Corbin ed., 3d Am. ed. 1919).
     
    “The word ‘condition’ is used in the law of property as well as in the law of contract and it is sometimes used in a very loose sense as synonymous with ‘term,’ ‘provision,’ or ‘clause.’ In such a sense it performs no useful service.” Id. at 409.

     

     

    So, if I understand correctly, the following sentence includes both a term and a condition:

    Quote

    If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.

    The condition is the increase or decrease in the cost of, or time required for, performance of the contract. The term is the requirement to equitably adjust the contract. Perhaps a lawyer can check my understanding.

    I don't think that everything in a contract would be a "term" or "condition". For example, page numbers, requisition numbers, instructions to the payment office, are informational in my view.

    I don't think the dollar figure cited at the end of a line of accounting is a term. I think the purpose of that number is to communicate the amount of the obligation created to the agency accounting office. Unless the figure were erroneous, I don't know how a change in the amount of the obligation would not also be accompanied by a change in the contract terms. 


  11. 2 hours ago, ji20874 said:

    Perhaps the professor errs?  It is a very common mistake to aver that para. (c) of FAR 52.212-4 requires all modifications of a commercial item contract to be bilateral.  But those who will read the actual clause text, and accept the text as written, will discern that the clause only requires that changes to the contract’s terms and conditions have the agreement of both parties.  But don’t just take my word for it, please look for yourself!

    Other than administrative changes and unilateral changes expressly permitted by a contract clause, what do you think a CO can unilaterally modify in a commercial contract? 


  12. 20 hours ago, FAR-flung 1102 said:

    I think we as a profession have barely nibbled at the plain language buffet so far.

    Here is a link to an example of plain language being used to explain comlicated stuff; Einstein's General Theory of Relaivity "using only the ten hundred words people use the most often":

    https://www.newyorker.com/tech/annals-of-technology/the-space-doctors-big-idea-einstein-general-relativity 

    Loved it.


  13. 31 minutes ago, xanadu said:

    Thank you. Can you please be kind enough to translate this for me. What does this mean - "DOD Class Deviation"? I am assuming this applies to all federal contracts effective immediately or am I interpreting it wrong? But how is this different making the change the "final rule" instead of "proposed rule" ?

    Thanks again.

    Not all federal contracts--all DoD contracts. DoD issues memos that direct contracting officers to comply with the law while the regulations catch up. This is one such memo.


  14. On 11/30/2018 at 5:59 AM, Matthew Fleharty said:

    The answer is context dependent.  Some requirements and specifications for systems (think aircraft or spacecraft design or quantum computing) require terminology that will naturally reduce readability  - I don’t think it is reasonable to assume the Government should write those solicitations at a Grade 7-8 reading level.

    Ultimately, the Government should strive to be an attractive business partner and readability of solicitations is certainly part of that; however, I think one standard to rule them all would have second and third order effects that could reduce the accuracy of a solicitation in an attempt to enhance accessibility.

    Thanks, Matthew. Now when are you going to do my new Problem of the Day?

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