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Don Mansfield

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Everything posted by Don Mansfield

  1. I agree. I didn't mean to imply that line-item pricing falls within Exemption 4 per se.
  2. brian, 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.
  3. 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: What do you think? Did they get it right?
  4. Are you asking about the difference in the context of FAR Part 44?
  5. 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. There's a link to the decision here: http://pacer.cadc.uscourts.gov/common/opinions/200801.htm. Click on "06-5310a"
  7. 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:
  8. Read all about it: http://www.acq.osd.mil/osbp/policy/USA001376-09%20Signed.pdf
  9. I don't know if the clause could be read into the contract, but that doesn't matter. Even if the clause could be read in, there needs to be an agreed-to date inserted into paragraph (d).
  10. 1. Does the GSA contract contain the clause at FAR 52.216-22, Indefinite Quantity? 2. If yes, what date was inserted in paragraph (d) of the clause?
  11. The myth about communication being 93% nonverbal probably didn't start in the contracting field, but we are partly responsible for its spread. This is especially true when it comes to the subject of contract negotiation. The course manual for CON 100 used to state that communication was 90% nonverbal as a matter of fact. A speaker at a recent conference that I attended used a figure of 93% in a presentation on contract negotiation. The current Contract Pricing Reference Guides contain a variation of this claim in a chapter titled "Nonverbal Communication" (Volume V, Chapter 5): Whenever this claim is made, it's almost always accompanied by a statement that it is supported by "research", but what "research"? Well, there actually was a research study done in 1967 that found that 93% of communication was nonverbal...under very specific conditions. The following excerpt from The Virtual Handshake explains just what the study found: Mehrabian's exact words appear in a description of his book "Silent Messages" -- A Wealth of Information About Nonverbal Communication (Body Language): For a thorough debunking of this myth, see Contributions of Different Modalities to "Content". Nonverbal communication is important in a contract negotiation. Eye-rolling usually communicates disagreement. A long sigh usually communicates frustration. Busting out laughing at the other party's counteroffer can be an effective way of communicating your intent to consider it. However, unless the parties intend to discuss their emotions in lieu of contract terms, they shouldn't go in to the negotiation thinking that 93% of the message they are sending is nonverbal. If they do, they'll find themselves focusing too much on the form of the negotiation instead of the substance. As contracting professionals, we all need to do our part to stop the spread of this common communication myth.
  12. The clause at FAR 52.219-14 doesn't apply to HUBZone or SDVOSB set-asides. The clauses for these types of set-asides contain their own limitation on subcontracting provisions, which are slightly different than FAR 52.219-14.
  13. Honest Iago, The standard Inspection clauses give the Government the right to withhold fee under certain circumstances. For example, 52.246-5(d) states: Does that answer your question?
  14. Yes. I don't even think the solicitation would have to say anything special.
  15. Myth-Information: When discussing the evaluation of competitive proposals with my students, I make a point of asking the following two questions (in order): 1. Are agencies required to evaluate proposals? 2. Are agencies required to rate proposals? Usually, students respond affirmatively to question #1 and are able to support their answers by citing FAR 15.305(a), which states "An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation." However, confusion sets in when I follow with question #2 and students read the very next sentence of FAR 15.305(a), which states "Evaluations may be conducted using any rating method or combination of methods, including color or adjectival ratings, numerical weights, and ordinal rankings." Clearly, the language regarding use of a rating method in conjunction with an evaluation is permissive, not mandatory. "What's the difference?", "Why wouldn't you rate proposals?", "How do you decide who is the better value if you don't rate the proposals?" are typical student responses. These are all good questions. Evaluation v. Rating A good way to understand the difference between evaluation and rating is to look at a typical article in Consumer Reports (CR). Here?s an example of a summary evaluation of a new car?s ?Driving Experience? (model name omitted): ?Driving Experience? was one evaluation factor under the heading ?Road Test.? CR also evaluated ?Reliability?, ?Safety?, and ?Owner Satisfaction?, to name a few. According to the Web site, there were over 50 different tests and evaluations performed on the car. Presumably, this produced a mountain of data. However, the typical car buyer does not have the time to peruse the data, nor do they fully understand it. As such, CR established a 100-point scale and a set of predetermined criteria to translate test and evaluation results into scores on the scale. In addition, they partitioned the scale into quintiles and assigned an adjective to each (Poor, Fair, Good, Very Good, and Excellent). Using this rating method, the car described above received a score of 74 and an adjectival rating of ?Very Good.? In this case, CR used a combination of rating methods (numerical scoring and adjectival rating) to translate complex evaluation results into an easily consumable format for its readers. But Teach, Why Wouldn?t you Rate Proposals? First, it's not required. Besides that, the results of the evaluation may not be particularly complex. For example, let?s say I used price and performance risk as my evaluation factors in a source selection. Performance risk had two subfactors?past performance and experience. In the solicitation, I instructed offerors to submit a one-page write-up and customer point of contact for each of their relevant contracts. The evaluation of performance risk consisted of an assessment of the write-ups as well as interviews with the customer points of contact to validate the offeror?s claimed experience as well as to ascertain how well the offeror performed. The evaluators then wrote an evaluation of each offeror?s performance risk, documenting the relative strengths and weaknesses of each. Why would it be necessary to translate this information into a rating? How would this aid my decision-making? I?m not going to be faced with volumes of information. Another reason I would avoid the use of ratings is when I was dealing with evaluators that didn?t understand them. In my experience, when ratings are used, ratings are all you get. I can recall receiving technical evaluations that had nothing more than the word ?Excellent? (when I used adjectival ratings) or ?95? (when I used a numerical rating). I wanted an evaluation and I got a rating. How do you decide who is the better value if you don't rate the proposals? The answer is the same way that you would if you did rate proposals?by performing a comparative assessment of proposals against all source selection criteria in the solicitation. A source selection authority (SSA) relies on ratings to make their source selection decision at their peril. See, for example, Si-Nor, Inc., B-282064, 25 May 1999, where the source selection authority based her decision to award to a higher-priced offeror on the fact that the offeror had a higher past performance rating. One of the reasons the protest was sustained was because the SSA did not describe the benefits associated with the additional costs, as required by FAR 15.308. ?Because they had a higher rating? will typically fail to meet this requirement. So we shouldn?t use ratings? Not necessarily. The point is that you have discretion to use or not use ratings. Most people don?t know why they use ratings other than the fact that it?s traditional where they work. The decision to use (or not use) ratings should result from thoughtful deliberation, not a successful copy and paste from your office mate?s old source selection plan. A wise man once said ?Tradition is the hobgoblin of mediocre minds.?
  16. I'm just wondering what GAO will title their 2010 report to Congress on the misspending of the Stimulus funds. Any ideas?
  17. If you're asking if a small business is exempt from submitting cost or pricing data, the answer is no.
  18. ERS, 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.
  19. Normally, you can award contracts using either competitive or noncompetitive procedures in accordance with 10 USC 2304 and FAR Part 6. This bill would only allow the use of competitive procedures.
  20. No, I don't think the bill would allow for the use of FAR 6.302-1 at all. As written, the bill wouldn't allow for HUBZone or SDVOSB sole source awards, either.
  21. Yes, I've heard of them in theory, but I've never heard of an agency awarding one.
  22. I think that the bill specifically precludes the use of funds to pay for contracts awarded on a sole-source basis, not restrict funds for contracts awarded using other than full and open competition. Use of other than full and open competition does not necessarily mean that a contract cannot be awarded using competitive procedures.
  23. "Presumably these business rules are written as an interpretation of policy and regulation." That's a questionable presumption. If what you've written is correct, then all we can conclude is that the folks who developed the business rules did not want obligations on basic IDIQ contracts reported in FPDS. This does not mean that obligations are not created or that obligations should not be recorded in the agency's accounting records when IDIQ contracts are awarded.
  24. Some of you were confused when I classified the following statement as myth-information in the Federal Contracting Myths thread: Let me explain where I was coming from. In April of 1994, OFPP used a variation of the word neutral with the term "past performance" in a Federal Register notice soliciting comments on their proposed pilot program to increase the use of past performance information in source selections. The notice stated: In November of 1994, the Federal Acquisition Streamlining Act (FASA) (Public Law 103-355) amended 41 USC 405 to include a new subsection (j) implementing the Government's policy of considering past performance in source selections. (j)(2) contains the following language: The FAR Council attempted to "plain language" the statute when it came time to implementing the new policy. In a proposed rule implementing the past performance information policy, FAR 15.608(a)(2)(iii) contained the following statement: When the final rule came out in March 1995 (FAC 90-26), the proposed rule was changed to read as follows: The background statement of the FAC stated that the final rule "clarifies that firms lacking relevant performance history shall receive a neutral evaluation for past performance." (60 FR 16718-01) However, since there is no discussion of the comments received in response to the proposed rule, it is unclear why the proposed rule needed clarification. Apparently, the FAR Council thought that the rule needed even further clarification and proposed the following definition of a neutral evaluation in the first proposed FAR Part 15 Rewrite: However, this only muddied the waters. The background of the second proposed rule provides the following explanation: The second proposed rule also contained a valiant attempt to define a neutral past performance evaluation as follows: This language failed to clarify anything, so in the final rule the FAR Council said the heck with it, let's just parrot the statute: This final rule gave us the rule as it is stated now at FAR 15.305(a)(2)(iv): So the FAR Council took the language of the statute, attempted to clarify it by introducing the term "neutral past performance evaluation", tried again to clarify it by defining "neutral past performance evaluation", confused a lot of people, then gave up. "Neutral past performance" was removed from the FAR over 11 years ago after a brief and infamous appearance. Despite this fact, it remains popular in the federal contracting vernacular.
  25. Correct. Correct, with a caveat. Some MATOCs may require contractors to submit proposals in response to task order solicitations. In theory, the Government could hold a task order competition, receive proposals from all MATOC holders except contractor A, then issue an order to contractor A on a noncompetitive basis (provided one of the exceptions to fair opportunity applied) and contractor A would have to perform.
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