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Don Mansfield

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Everything posted by Don Mansfield

  1. Sure, let me give you an example. Let's say last year I had a competitive procurement for the purchase of 1000 widgets. Three responsible offerors, competing independently, submitted priced offers that satisfied the Government?s expressed requirement, award was made to the offeror whose proposal represented the best value, price was a substantial factor in source selection, and there was no finding that the price of the otherwise successful offeror was unreasonable. In other words, I had adequate price competition pursuant to FAR 15.403-1©(1)(i). The contract price was $700,000 ($700/widget). This year I have the same requirement for 1000 widgets. Instead of having a competition, I'm going to do a HUBZone sole source to Contractor A in order to help meet my agency's small business goals. I receive a price from contractor A and price analysis clearly demonstrates that the proposed price is reasonable in comparison with the contract price for last year's contract, adjusted to reflect changes in market conditions, economic conditions, quantities, and terms and conditions. In other words, I have adequate price competition pursuant to FAR 15.403-1©(1)(iii). Make sense?
  2. I read something that I found remarkable in the recently published GAO decision Master Lock Company, LLC, B-309982.2, June 24, 2008. Bob posted the decision on the Wifcon home page. The protester argued that the agency's evaluation of the awardee's past performance should have taken into account the fact that they had declined a delivery order under a different IDIQ contract. In response, the agency argued that a delivery order was not binding and the GAO agreed. Here's an excerpt: "During the course of this protest, Master Lock also argued that the agency?s evaluation of Evergreen?s past performance was unreasonable. As discussed above, Evergreen declined to accept order No. 2745, which was issued under a different contract. DLA acknowledges that it did not consider these events in its evaluation of Evergreen?s past performance. AR at 8. The agency contends, however, that it was not required to do so because the submission of a quote by a vendor under an ID/IQ contract does not result in a binding obligation. Thus, the agency argues, because Evergreen did not accept the order, there was no contract performance for the agency to evaluate. The agency is correct that neither the submission of a quote by a vendor nor the issuance of an order by an agency results in a binding contractual obligation. Rather, the government?s order represents an offer that the vendor may accept either through performance or by a formal acceptance document. M. Braun, Inc., B-298935.2, May 21, 2007, 2007 CPD ? 96 at 3." [italics added]. However, the case that the GAO cited as support for their position did not deal with a task or delivery order under an IDIQ contract--it was a purchase order using simplified acquisition procedures. There's a big difference. FAR 16.506 requires the inclusion of the clauses at FAR 52.216-18, Ordering, 52.216-19, Order Limitations, and 52.216-22, Indefinite Quantity, in an IDIQ contract. Here's what the Indefinite Quantity clause says regarding the contractor's obligation to perform: "Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the 'maximum.' The Government shall order at least the quantity of supplies or services designated in the Schedule as the 'minimum.'" [bold added]. Now, what in this required FAR clause would give the contractor the right to decline an order, provided that the order complies with the Ordering and Order Limitations clauses? I don?t see it. The decision includes the following statements further on in an attempt to clarify: "Although the work required under any task or delivery order will only become a binding obligation on the parties if the vendor accepts the order, the underlying ID/IQ contract may itself have obligations. For example, a contract may require a vendor to accept orders placed by the agency within certain parameters.? This is conceptually incorrect. IDIQ contracts do require (not ?may?) the contractor to accept orders placed by the agency within certain parameters (stated in the Ordering and Order Limitations clauses). The only instance where a contractor?s acceptance of a task or delivery order would matter would be if the agency?s order was not within the stated parameters in the Ordering and Order Limitations clauses. Furthermore, an arrangement where the Government was required to order a minimum quantity and the contractor would not be required to perform would arguably lack consideration and, thus, not be an enforceable contract. The main problem with this decision is that it characterizes the exception to the rule (i.e., situations where the contractor may decline a task or delivery order under an IDIQ contract) as the rule itself. It also fails to recognize the distinction between purchase orders made in the open market and task and delivery orders under IDIQ contracts.
  3. here_2_help, That's a good point. However, the Cherokee cases involved "contract authority" to obligate appropriations, not "budget authority." I don't know if the result would necessarily be the same when dealing with budget authority (which I assume is charles's case).
  4. I don't know the answer, but I would be inclined to choose Vern's possibility #3. My reasoning is as follows: The Government can only be bound by contracting officers acting within the scope of their authority. A CO who violates the law is acting outside the scope of his/her authority. As such, the Government cannot be bound by a contract that the CO entered into by violating the law. In this case, I believe that the CO has entered into an unauthorized commitment.
  5. dgm, Prior to the FAR Rewrite in 1997, FAR 15.608(a)(2)(iii) contained the following statement: "Firms lacking relevant past performance history shall receive a neutral evaluation for past performance." The FAR Council decided to change this wording in the FAR Rewrite based on some confusion as to what a neutral evaluation actually meant. Here's an excerpt from the Federal Register (62 FR 51224-01): "(f) Neutral past performance evaluations. We considered alternatives relating to two aspects of neutral past performance ratings-- (1) Definition of neutral past performance evaluations. The proposed rules provided a definition of neutral past performance evaluations. Public comments recommended that we revise the definition and provide detailed instructions on how to apply neutral past performance ratings in any source selection. 41 U.S.C. 405(j)(2) requires offerors without a previous performance history, to be given a rating that neither rewards nor penalizes the offeror. We did not adopt the public comment recommendations, opting instead to revise the final rule to reflect the statutory language, so that the facts of the instant acquisition would be used in determining what rating scheme is appropriate. This alternative provides for flexible compliance to satisfy requirements of the statute."
  6. contractor100, You asked: "Does a schedule holder that does not sell any fixed price services or supplies ever have to accept an order?" I would say yes, the schedule holder still has to accept orders. Theoretically, an agency could issue an unpriced order requiring the contractor to begin work and then definitize the order later.
  7. Scjet, That's a distinction that DARPA makes, but that is not true as a general proposition. An agency can have a BAA and award nonprocurement instruments only.
  8. whynot, Yes, it's possible (and likely) that adequate price competition could result from FAR 6.102(d)(3), but that is not necessarily so. There's nothing in the regulations that support the assertion that GSA prices resulted from adequate price competition, per se.
  9. whynot, CICA --> "full and open competition" --> FAR Part 6 TINA --> "adequate price competition" --> FAR Part 15 Two different (unrelated) things. You can have "full and open competition" and not have "adequate price competition." You can have "adequate price competition" without any competition at all (i.e., in a sole source acquisition).
  10. While you can assume that GSA has determined its schedule prices to be fair and reasonable, I don't know what basis there is in the regulations to assume that the prices necessarily resulted from adequate price competition.
  11. Carl, formerfed took the words out of my mouth. Unlike a purchase order, a task or delivery order under a Federal Supply Schedule is not an offer by the Government that the contractor can decline. I honestly don't know the legal effect of a FSS contractor's response to an agency's task or delivery order solicitation. What happens if a FSS contractor responds with a price that is less than the schedule price, then changes his/her mind? We know that they are contractually bound by the schedule price, but are they bound by the price with which they responded to the task or delivery order solicitation? If the answer is yes, then I would say that the response was an offer. If not, then it was a quote.
  12. formerfed, Yes, I know. The FAR talks about RFQs and the DFARS talks about solicitation of offers. I don't know what the right answer is.
  13. Vern, I read stanretired's post as implying that a CO could not (as in the CO does not have the authority) extend a delivery date without obtaining new consideration. I was simply pointing out that a CO does have that authority. I agree with you as far as what a CO should do.
  14. Stanretired, I think that you can extend the delivery date without obtaining consideration, too. Here's something I wrote in another thread: Lastly, a contracting officer is not necessarily required to obtain new consideration if he/she establishes a new delivery schedule. See Administration of Government Contracts, Fourth Edition, p. 965, quoting Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA P 11,332: "It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do." [italics added].
  15. How would you justify that your situation was not the result of a lack of advance planning by the requiring activity?
  16. carl, Why do you think that DoD is wrong in using an RFP? DFARS 208.405-70© discusses the receipt of offers, not quotations.
  17. "You can't be distracted by the noise of misinformation." -James Daly In my career as a contracting professional and now an educator, I have come to appreciate the growing body of misinformation in Federal contracting. Contracting misinformation is pervasive. You can see it in the popular press, periodicals dedicated to the contracting profession, in posts at the Wifcon forum, internal policy memoranda at a Government agency, etc. As I'm writing this, somewhere a senior contracting professional is imparting misinformation on a newbie, and the newbie is believing him. A certain amount of misinformation is understandable in Federal contracting, given the volumes of regulations and case law that govern Federal acquisition. I can accept that (it keeps me employed). However, certain contracting misinformation seems to resist any efforts to eradicate it. This class of misinformation has its origins in the operational contracting offices of the Federal Government and is usually created in the form of rules that have no basis in law or regulation, but sound like they do (especially when spoken by senior contracting professionals, legal counsel, or contract policy office personnel). It is this class of misinformation that is most aptly described as contracting "myth-information." As a service to my profession, I will attempt to bust some of the more popular contracting myth-information that I have heard. I've created my own list of myth-information and am collecting more from participants in the Wifcon discussion forum (thank you to those that have contributed). I'll try to debunk at least one myth per blog entry. If you think you have heard some contracting myth-information and would like to share with others, please contact me and I will include it in the blog. Think of the blog as a clearinghouse for busted contracting myth-information.
  18. Gort, Of course, you could create fact-specific scenarios to make those statements true. However, many people believe some or most of these statements to be true as general propositions. They don't see the "shades of gray." As you learn more about earthlings, you will understand.
  19. Person without a clue (acronym coined by Vern).
  20. Wifconners, I'm looking for examples of common myths/misunderstandings in Federal contracting. I'm particularly interested in beliefs that Federal contracting folks seem to cling to, even though they have no basis in law or regulation. Or, the rules have long changed, but some folks seem to have not received the message. For example, here are some I've observed: 1. Changes within 10-15% of the contract price are within scope. 2. In an IDIQ contract with options, each option year must have its own minimum. 3. Offerors with no record of past performance must be rated neutral. 4. Price analysis is always required. 5. You can't tell an offeror that his price is too high or too low during discussions. 6. An unsuccessful offeror's name cannot be disclosed during a debriefing. 7. Contingencies are unallowable costs. I get most of these from my students, who pick them up at their offices. Some myths/misunderstandings transcend agency lines. Think of things that are said by PWACs who think they know something about contracting. Thank you and have fun.
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