Don Mansfield

Boof, Which Inspection clause was in the contract?

PMDave, Take a look at Engineering & Professional Services, Inc., B-289331, January 28, 2002. If this is analogous to your situation, then I think the ECP process you envision would be ok.

In a recent blog post, Steve Kelman took issue with GSA for the way they intend to evaluate past performance under the One Acquisition Solution for Integrated Services (OASIS) procurement (see “GSA is Saying What?"). Specifically, the evaluation scheme in the draft request for proposals (RFP) shows that GSA intends to weigh past performance with federal customers more heavily than past performance with nonfederal customers (the draft RFP is available for viewing on FedBizOpps). Kelman says that GSA’s approach is “not a good idea” and is hopeful that the OASIS program will “rectify this mistake.” Kelman seems to acknowledge the uniqueness of the Government as a buyer and describes the accompanying problems as follows— Further, Kelman states— Kelman’s argument boils down to this—nontraditional Government contractors (what Kelman terms “commercial firms”) would be just as good, if not better, than traditional Government contractors (what Kelman terms “government-unique” contractors) at performing the work. That may be so, but it would be naïve to ignore the risk posed by an offeror with no Government contracting experience. Such an offeror will be faced with having to comply with a plethora of rules and regulations that would be new to them. In a blog post, Vern Edwards describes the situation as follows (see “Tips for the Would-be Clueless Contractor”): As a buyer, there is value in an offeror having sold to you before—if for no other reason that the parties have a better idea of what to expect from each other. If this were not true, preferred supplier programs would not be so popular with the “commercial firms” that Kelman advocates for. If you are an extraordinarily unique buyer, like the U.S. Government, there is even greater value in an offeror that has sold to you before. I don’t fault GSA for having a preference for offerors with more Government contracting experience. This is especially true given that the OASIS contracts will be noncommercial and will provide for orders on a cost-reimbursement basis. GSA did not make Government contracting as complicated for contractors as it is. If we want to criticize the procurement system, there’s plenty to talk about. But we shouldn’t react with feigned surprise and indignation when an agency is taking reasonable steps to operate within it.

1. Is the contract an IDIQ or requirements contract? 2. Does the contract require the contractor to perform "modifications"? If so, does the contract contain a line item for "modifications"? 3. Did the original solicitation advise offerors that the contractor would be required to perform "modifications"? 4. Are "modifications" considered repair?

Knewbs, See 13 CFR 124.510( a ) and 13 CFR 125.6( a ):

The change in wording will not affect the HUBZone and SDVOSB programs. For these programs, "similarly situated entities" already count toward the prime's performance. See FAR 52.219-3( d ), FAR 52.219-4( d ), and FAR 52.219-27( d ).

The underlying statute authorizes the administrator to amend the limitation on subcontracting rules as they apply to small business set-asides and 8(a) acquisitions (see Knewbs post above). As far as asking for permission to deviate from the existing SBA rules, I don't know what the standard process is. As I wrote to Retreadfed, I assumed it was something that could be done.

Yes, it is a strange phenomena. Sometimes laws are passed and the executive branch is quick to implement it. If I recall correctly, the authority to do SDVOSB set-asides and sole source actions was implemented within months of the authorizing legislation. On the other hand, it was over ten years before we saw a rule implementing WOSB set-asides in the SBA regulations from the time the authorizing legislation was passed. I assume politics has something to do with it.

Yes, I think that you would be deviating from the SBA's rules. I'm assuming that the SBA can authorize deviations from its regulations. Having said that, I couldn't find any statement to that effect in Title 13 of the CFR.

What agency do you work for?

Yes, once implemented, this would change things. I don't think you'll see this change in the FAR in the next couple of months, though. I didn't see an open FAR case specifically implementing this section of the NDAA. If you want to allow other 8(a) concerns to count toward the 50% requirement, you could request a deviation from FAR 52.219-14. It shouldn't be that hard to get given the language of the NDAA.

Knwebs, Only the prime's performance counts toward the 50%. See http://www.gao.gov/assets/380/379065.pdf.

http://www.wifcon.com/discussion/index.php?/topic/2059-interpretation-of-definition-consolidation-of-contract-requirements/

Just to clarify, the FAR councils say that a demand or assertion for payment exceeding $100,000 is not a claim until certified. Are you saying that the boards and courts have said that a demand or assertion for payment, adjustment, or other relief exceeding $100,000 is not a claim until certified?

joel, I think the most relevant dictionary entry at m-w.com is: "to try to acquire or gain." I'll go with that.

In case you missed it, the Wifcon calendar shows that our esteemed Webmaster, Bob, turned 64 today. Please join me in wishing him a happy birthday and saying thank you for making Wifcon what it is.

Ok. Experiment's over. I have my data--10 "yes" votes and 2 "no" votes. Thank you all for participating. Commence free-for-all.

Great, thank you to everyone who responded. So that's nine "yes" votes to zero "no" votes. Ok, now for the second part of the experiment. I'm going to change the definition and the rule in my original post and ask another yes/no question. Here goes: Definition: “Claim” means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, (1) the payment of money in a sum certain, (2) the adjustment or interpretation of contract terms, or (3) other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act. Rule: Contractor claims exceeding $100,000 shall be certified as required by the Contract Disputes Act. Question: Is a written demand by the contractor seeking, as a matter of right, an adjustment of the contract price exceeding $100,000 (but not seeking payment) a "claim" if it is not certified? Yes or no? Please don't respond with court/board cases, excerpts from articles, commentary on my question, etc. (yet). Don't look outside this box. Base your answer solely on what is written in this box. You can change your answer later based on information outside this box and that would not make you a hypocrite. Apply the same logic that you used when responding to the first question and see if you arrive at the same answer. Just looking for a yes or no, but feel free to provide an explanation if you'd like.

I wanted to try out a new way to explain a concept to my students, so I thought I'd try it out here. I'm going to give you a definition of a word and a rule that uses the defined word. Then, I'm going to ask a yes/no question. Here goes: Definition: "Driver" means someone who drives a (1) car, (2) truck, or (3) motorcycle. However, someone who drives a car is not a "driver" unless they have a license. Rule: All drivers must have a license before driving on any public road. Question: Is someone who drives a truck on a public road without a license a "driver"? Yes or no? Don't try to figure out what I'm getting at, just answer yes or no. You don't have to explain, but you can if you want. I'm not trying to set you up or embarass you. I'm just asking you to do me the favor of providing your answer. Thank you in advance.

I've used those factors in source selection, too. I agree with everything napolik wrote.

How about Government contracts attorney?

In CONUS, ship repair contracting in the Navy is predominantly done under multi-ship multi-option (MSMO) contracts awarded by the Naval Sea Systems Command (NAVSEA). These are cost-plus award-fee/incentive fee contracts covering an entire class of ship at a particular homeport over a period of five years. For example, NAVSEA will award a MSMO contract covering all DDG-class ships homeported in San Diego. In terms of dollars spent, I would say that more is spent on these contracts than under the master agreements described in the DFARS.

govt2310, If you're asking whether an agency has the discretion to not waive a minor informality or irregularity in an offer, the use of "may" at FAR 52.215-1(f)(3) suggests the answer is "yes." However, the GAO or a court may find that refusal to waive a minor informality or irregularity an abuse of discretion. For example, in Fort Mojave/Hummel, a Joint Venture, B-296961, October 18, 2005, the GAO sustained a protest where the CO did not waive an offeror's failure to acknowledge an immaterial amendment. Although this case deals with sealed bidding, I believe the result would be the same in competitive negotiation.

If this is only matter of form and not of substance, which it sounds like, it may be waived pursuant to FAR 52.215-1(f)(3). I'm assuming that provision was in your solicitation.

See also FAR 13.106-1( e ): (e) Use of options. Options may be included in solicitations, provided the requirements of subpart 17.2 are met and the aggregate value of the acquisition and all options does not exceed the dollar threshold for use of simplified acquisition procedures.