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Don Mansfield

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Everything posted by Don Mansfield

  1. Did you read DoD 4400.1-M, "Department of Defense Priorities and Allocations Manual"?
  2. Vern, Orion's response to my question ("That's an interesting question...") shows that he doesn't seem to be aware of the Christian Doctrine, which is why I provided him the link. The link wasn't supposed to answer his question about whether clauses could be added unilaterally. formerfed already answered that.
  3. Orion, Read this: http://www.certifiedksolutions.com/blog/?p=102
  4. What's worse, giving bad advice or no advice?
  5. Tom, What does the agreement say about rights in IP? Ownership of IP and rights in IP are two different things.
  6. You think that a contracting officer has the authority create an obligation that exceeds the amount of funding available?
  7. brian, What if the the Termination for Convenience clause was not in the contract? Does that mean that the Government could not terminate for convenience?
  8. Did you read the Changes clause in the contract? Does that not answer your question?
  9. In another thread, I wrote: This seemed to upset some people, so I thought I would test my hypothesis. The rules of "Win the Government's Money!" are analogous to the situation I described. If you're the lowest without being too low, you win. You also get a bonus for winning, which represents the profit you would end up making on equitable adjustments. You don't know the profit you would make when you submit your bid, but you have an idea of a reasonable range. Some would argue that it's dishonest to submit a below-cost bid with the intention of making up for a loss through profits gained from equitable adjustments. I don't see such behavior as good or bad--I think that it is a logical consequence of the rules that govern the process.
  10. Vbus, you still would have lost. The good news is that you won round 2 with a bid of $975,000. Your bonus money is $26,771, which makes your score $1,771.
  11. If the Government used a more stringent test than what was required by the contract, then the contractor could submit a claim for any increased costs under the constructive change theory.
  12. Ok, The bids are as follows: dgm $ 980,000.00 jljordan $1,008,402.66 brian $ 993,000.00 vbus $9,980,001.00 dgm wins! dgm's score is -$20,000. But now we will apply his bonus for winning. The random number chosen is 217884. dgm gets 10% of this amount added to his score. Thus, his final score is: -$20,000 + $21,788 = $1,788 Thank you for playing. Would you like to play another round? Same rules. Bidding closes on 5/4 at 4:30PM EDT. Good luck.
  13. Vern, It shouldn't surprise you that I'm trying to weasel out of what I wrote, given my utter lack of integrity. You wrote: I guess that means that you agree that the savvy contractor was not doing anything improper in my scenario. However, you seem to be reading definition (1) of "buying-in" as saying that "unnecessary or excessively priced change orders" are the exclusive machinations to "increase the contract price after award." Why?
  14. Thomas, The "too close at hand" rule applies when the agency has actual knowledge of an offeror's past performance, usually because the offeror is an incumbent contractor. When Offeror A alleges that Offeror B has performed poorly on a different contract, that does not make the agency knowledgeable of Offeror's B performance on that contract. All the agency knows is that Offeror A has alleged something, which the agency can pursue or disregard.
  15. Vern, You selectively quoted me and omitted my explanations. Thanks. My last post explained my position: By the way, you misread the FAR. You wrote: That's not what it says. The definition of "buying-in" is as follows: "...through unnecessary or excessively priced changed orders" is only given as an example of a method of increasing the contract amount after award. This definition does not say that it is the only method for increasing the contract amount after award, which is what your statement implies.
  16. Welcome to "Win the Government's Money!" The rules of the game are as follows: 1. You are a Government contractor and your goal is to make as much money as you can. 2. You are bidding on a contract that will cost you $1,000,000 to complete. 3. You must bid a single fixed-price to complete the contract. If you submit the lowest bid, you will win the contract. However, your bid price must be realistic or you will be found to be nonresponsible. 4. If you win the contract, your score will be your bid price minus $1,000,000. 5. After the winner has been decided, a random number will be chosen between $200,000 and $400,000. 10% of the random number selected will be added to the winner's score. Are you ready to play? If so, send me your bid through the messenger function by clicking on my name at the left. Don't post your bid here. You have until tomorrow at 11:00AM PDT to submit your bid. The results of the competition will be posted here. Good luck!
  17. Well, a stop-work order wouldn't make sense because there is no work to stop. Also, if you issue a stop-work order, then the contractor would be entitled to costs plus profit. If you do nothing, the contractor may request an equitable adjustment pursuant to the Government Delay of Work clause (assuming that clause is in the contract). However, they would only be entitled to costs (no profit).
  18. here_2_help, Understood. My point was that the savvy contractor in my example hasn't broken any rules. He's taking a calculated risk to reduce or forego an allowance for profit in his proposed price in order to win the contract. He does this because he expects there to be a lot of change orders and he knows that he is entitled to a reasonable profit on equitable adjustments. In an environment with intense competition where price is the dominant factor (or only factor) in deciding who gets the award, and the type of work lends itself to numerous contract changes (e.g., construction, ship repair), this is often a successful strategy. Such a strategy is a logical consequence of procurement practices that 1) place a dominant emphasis on price when selecting contractors and 2) provide for a reasonable profit when making equitable price adjustments to contracts as a result of changes. You and Vern seem to have equated such a strategy with submitting false claims. While contract administrators should be extra vigilant for false claims when administering a contract with a contractor who has proposed a low price, this does not necessarily mean the contractor is dishonest for employing the strategy that he did. Vern, I don't think that you understood what I was saying. Read the paragraph above.
  19. Is the contractor waiting on your decision before proceeding? If so, what work is there to stop?
  20. Right. But how does that disprove what I wrote? Each time the contractor gets an equitable adjustment, the $200,000 left on the table is reduced by the amount of profit in the equitable adjustment. Who said anything about falsely inflating estimates? Jail for taking advantage of the CO's incompetence? C'mon. Read Buying-In: An Improper Business Practice (18 No. 4 Nash & Cibinic Rep. ? 14).
  21. I see that you can copy and paste from the FAR, but you should probably take some time to understand it before doing so. FAR 3.501 doesn't prohibit the practice of buying-in. Read it. Further, buying-in does not mean that the contractor intends to submit fraudulently priced change orders, either. The fact that "buying-in" is discussed as an improper business practice in the FAR is questionable. In an article entitled Buying-In: An Improper Business Practice (18 No. 4 Nash & Cibinic Rep. ? 14) the author states: The author goes on to describe a qui tam FCA suit, U.S. ex rel. Bettis v. Odebrecht Contractors of California, Inc., 297 F. Supp. 2d 272 (D.D.C. 2004), where the relator unsuccessfully alleged fraud in the inducement (among other allegations) against a contractor for submitting a low bid even though it did not intend to perform at the bid price. The author concludes with: I think my savvy contractor can ward off any legal challenges with a mediocre legal defense team.
  22. FAR Case 2008-032 (Small Business Size Rerepresentation), which was part of FAC 2005-31, contained the following general statement in the Q&A section (74 FR 11823): Is that accurate? What do you think?
  23. Amazing. That is an actual case from CON 218. Are you doing a CON 218 assignment or is this a real situation?
  24. dwgerard, One of the factors to consider when evaluating contractor performance is the contractor?s history of reasonable and cooperative behavior. If a contractor had a record of submitting an excessive amount of meritless REAs and/or exorbitant pricing, then this should be considered when evaluating their past performance. Also, I sense that you have a problem with a contractor who "buys-in." I don't, and let me explain why. The Government's rules require that price be a "significant" factor in source selection. When using sealed bidding, it is the only evaluation factor (plus price-related factors). When awarding a fixed-price contract, the Government generally doesn't care what the contractor's cost of performance will be, unless the offered price is alarmingly low. The Government has another rule that provides for pricing equitable adjustments based on reasonable costs of performance. If a change order causes the contractor to incur a cost increase, the price will adjusted to account for a reasonable estimate of the cost increase, plus profit. If I'm a savvy contractor who knows these rules and wants to make money on a fixed-price contract where price was going to be a dominant factor in choosing who gets the award (and I anticipated a lot of change orders), wouldn't it make sense to offer a price as low as I could possibly stand (even below cost) in hopes that I could win the award and make up for any losses through equitable adjustments? Actually, I don't think you even have to be a savvy contractor. If I explained these rules to 10 strangers to Government contracting and asked them to come up with a strategy to make money, 9 out of 10 would probably choose to propose a low price in hopes that they would make up for any losses through change orders. Does this make them bad people? I'm familiar with the picture that you referenced. However, I don't see it as a statement against dishonest contractors, I see it as a satire of the Government's procurement rules.
  25. Vern, No, I haven't. I'll give GAO a call and let you know what happens.
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