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Don Mansfield

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Posts posted by Don Mansfield

  1. In the context of FAR Part 44, I don't think that there's a significant difference. Part 44 uses approval when discussing contractor purchasing systems and consent when discussing subcontracts. The Government Contract Reference Book defines approval as "a contracting officer's written notification to a contractor that the Government agrees with a proposed course of conduct" and subcontract approval as "the contracting officer's written consent for the contractor to enter into a particular subcontract."

    Outside of Part 44, I don't know of the words having necessarily distinct contractual significance.

  2. I have to take some exception to Don's assertions regarding line item pricing. The court has never held that such pricing is automatically exempt from disclosure. Instead, its position is summarized in this extract from the CCC decision

    We reaffirm today what we have held twice before:

    Constituent or line-item pricing information in a Government

    contract falls within Exemption 4 of the FOIA if its disclosure

    would ?impair the government?s ability to obtain necessary

    information in the future? or ?cause substantial harm to the

    competitive position of the person from whom the information

    was obtained.?

    Thus, before line item pricing can be withheld, the government must determine that one of these two results will occur. Similarly, in a reverse FOIA action, the party seeking to enjoin release has the burden of proof in regard to making one of these showings.

    As for Carl's idea about a protest, what is to be protested? Look at the GAO protest regs to determine what can be protested. I don't see where a contracting officer's failure to disclose this information is protestable to the GAO.

    I agree. I didn't mean to imply that line-item pricing falls within Exemption 4 per se.

  3. Don,

    why do you say "HUBZones, too ?"

    What else has been ruled unconstitutional ?


    10 USC 2323 was found to be unconstitutional. This statute was the basis for, among other things, the SDB price evaluation adjustment and HBCU/MI set-asides.

    After the DoD memo came out, some of my Army and Navy students were being told by their activities that the Rothe decision meant the end of 8(a) and HUBZone preferences. However, after reading the SBA's interpretation and giving it some more thought, I don't think that's the case. However, I still have some unanswered questions. I plan on doing some more digging.

  4. I've received a e-mail containing the SBA's interpretation of the Rothe decision. Apparently, they believe the only impact is on the HBCU/MI set-aside. Here's the message:

    The Rothe decision enjoins DoD from continued use of 10 USC 2323 "Contract goal for small disadvantaged businesses and certain institutions of higher learning" and prevents DoD from applying SDB preferences for contract awards, including HBCU/MI set-asides. However, DoD suspended the use of SDB preferences several years ago, based on the application of the Santorum Amendment, where DoD achieved its SDB goals in the previous year. DoD did however, continue to set aside procurements for exclusive HBCU/MI participation; that has now ended.

    Even though the decision references HUBZones, it does not prevent DOD from conducting HUBZone set-asides or applying the 10% Price Evaluation

    Preference (PEA) in full and open competition. The court's decision ends DOD's use of 10 USC 2323, the SBA HUBZone program referenced in the decision is implemented through 15 USC 657a (Section 31 of the Small Business Act (15 USC 631 et seq. )) and is not affected by the decision.

    Nor does the decision prevent the use of SBA's Sec. 8(a) Program, so named for Section 8(a) of the Small Business Act (15 USC 637(a)). Both programs are NOT implemented through 10 USC 2323.

    In addition, the Government-wide SDB goal of 5% still applies to DOD, the only change is the vehicle that was enacted to help achieve that goal for

    DoD has been stricken. Finally, the Court's decision does not prevent the Department of Defense from conducting small business acquisitions in

    accordance with SBA's regulations, FAR Part 19 or the remaining Subparts of DFAR 219.

    What do you think? Did they get it right?

  5. Brian's situation, unless he misstated it, is that the CO won't release the award price on a Part 13 acquisition. How did this discussion evolve into line item pricing? The award price (maybe not line item pricing, but we can't decide that by the information provided) must be disclosed and I think Brian should certainly pursue this obvious misunderstanding.

    Because Brian was talking about protesting, and before doing so he should know that line-item pricing falls under a FOIA exemption, in case that is what he was seeking. Turns out that is what he was seeking. I'll bet he's glad he knows that now.

  6. Before protesting, you may want to read Canadian Commercial Corp. v. Department of the Air Force, No. 06-5310, 2008 WL 220638 (D.C.Cir. Jan. 29, 2008). Here's the holding:

    Background: Contractors filed ?reverse? Freedom of Information Act (FOIA) action, seeking to enjoin Department of Air Force from releasing trade secrets to competitor, consisting of line-item pricing and hourly labor rates information in contract to provide turbojet engine repair, overhaul, and maintenance services. The United States District Court for the District of Columbia, Bates, J., 442 F.Supp.2d 15, granted in part and denied in part cross-motions for summary judgment. Air Force appealed.

    Holdings: The Court of Appeals, Ginsburg, Chief Judge, held that:

    (1) constituent or line-item pricing falls within FOIA exemption, and

    (2) contractors' pricing information was within FOIA exemption.

  7. Honest Iago,

    The standard Inspection clauses give the Government the right to withhold fee under certain circumstances. For example, 52.246-5(d) states:

    (d) If any of the services performed do not conform with contract requirements, the Government may require the Contractor to perform the services again in conformity with contract requirements, for no additional fee. When the defects in services cannot be corrected by reperformance, the Government may?

    (1) Require the Contractor to take necessary action to ensure that future performance conforms to contract requirements; and

    (2) Reduce any fee payable under the contract to reflect the reduced value of the services performed.

    Does that answer your question?

  8. Thanks for the information k & subk_mgr. The situation is that we already have a prime contract with this agency. The agency is going to issue a competitive solicitation for some work; work we happend to perform for them in our last prime contract which ended not too long ago and was not included in our new one. If awarded this work, it would be added to our current prime contract by a contract modifictaion. This is the reason I can reference the competition requirements of the prime contract as it relates to subcontracting. We are in the process of selecting a company (not through competition) to partner with for this upcoming solicitation. I understand that I will need to speak to our selection of a partner and the justification for using Other than Full and Open Competition to do so. Can either of you (k&subk_mgr or Don) direct me to where I can learn more about teaming agreements?

    I'm a little concerned by some of the comments above regarding entering into teaming agreements with other firms long before an RFP comes out, even a year. Really? How do you do that without knowing what's in the RFP?


    What makes you think that you must use competition to select your subcontractors? Is it the Competition in Subcontracting clause (FAR 52.244-5)? That's not much of a requirement. Read paragraph (a):

    "(a) The Contractor shall select subcontractors (including suppliers) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of the contract."

    [italics added].

    There's a heck of a lot of wiggle room there. Also, if you're a contractor you shouldn't be worried about a "justification for using Other than Full and Open Competition." CICA does not apply to you. You should be thankful for that.

    Contractor team arrangements are covered in FAR 9.6.

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