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Don Mansfield

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Everything posted by Don Mansfield

  1. If the only evaluation factors were price and socioeconomic status (currently permissible under FSS ordering procedures), it wouldn't be much different. The only difference is that you would be disclosing how much more you'd be willing to pay for a desired socioeconomic status in the solicitation.
  2. I agree with everything you wrote. However, wouldn't 15 USC 644(a) provide adequate statutory authority (as cited by Navy_Contracting_4 in post #16)? Even if you don't think it does, the point I'm trying to make is that I don't think it would be consistent for GSA to state that consideration of socioeconomic status in awarding orders is permissible, but the use of the price preference is impermissible. I'm not arguing that either technique is legal (i.e., would hold up at GAO or the Courts).
  3. joel, I don't think the letter does anything more than authorize the use of socioeconomic status as an evaluation factor when placing orders under Federal Supply Schedules. However, given that this practice is permissible, I don't see how GSA could say that use of a price preference is impermissible. The only difference is that the agency would be specifically stating how much small business status would be worth in the solicitation instead of stating something vague like "socioeconomic status will be considered."
  4. Joel, GSA first advised agencies that this was permissible in 2005. See here. The last extension to this policy is here. It seems like the policy is still effective.
  5. According to GSA, agencies were authorized to use "socioeconomic status" as an evaluation criterion in awarding FSS orders. Presumably, they thought this was authorized by statute and regulation because it fell within the wide latitude that agency officials had in choosing appropriate evaluation factors. Use of such a factor provides a preference that is not expressly authorized by statute or regulation. Do you think that conflicts with FAR 3.101?
  6. This is an interesting question. Prior to the FAR expressly permitting small business set-asides under FSS contracts, GSA advised that agencies could use socioeconomic status as an evaluation factor for award. This may still be common practice. This implied that 1) an agency could attribute value to the socioeconomic status of an offeror and 2) an agency would potentially be willing to pay more to obtain the benefit of awarding to an offeror with a desirable socioeconomic status. In gmdubya's scenario, the agency would be stating how much they value socioeconomic status up front. If evaluating socioeconomic status was ok in awarding FSS orders, I don't see how GSA could say that using a price evaluation preference would be wrong.
  7. Debra, If the T&M contracts are noncommercial, then the answer to your question is yes. Reimbursement for materials (including applicable indirect expenses) is governed by FAR 52.216-7 (see FAR 16.307(a)(1)).
  8. In Appeals of Holmes & Narver Services, Inc., 90-3 BCA P 23198, August 6, 1990, the board recognized the closing of executive department offices by Executive Order as a sovereign act: The Executive Orders in that case excused Federal employees from work around Christmas in 1986 & 1987.
  9. Inasmuch as they are both sovereign acts, yes. Neither was an act of the Government in its contractual capacity.
  10. Vern, If the closure is a sovereign act (which it typically is), wouldn't the Sovereign Acts doctrine preclude claims for increased costs? See Appeal of Conner Brothers, ASBCA 54109.
  11. CSCM2012, I should add that if your contracts are cost-reimbursement, paid administrative leave may be allowable as a fringe benefit. The applicable coverage for contracts with commercial organizations is at FAR 31.205-6(m)(1). Again, this assumes that nothing in your contract addresses these specific costs. Retreadfed, You may already know this, but the DCAA CAM contains coverage of Administrative Leave due to Weather-Related Closures at 7-2124: I couldn't find anything about closures for other reasons.
  12. Retreadfed, Assume they were. What are you thinking? Constructive change?
  13. Unless your contract contains something dealing with this situation (doubtful), I believe that your contracts would need to be modified for your employees to receive the holiday benefit. The executive order excused federal employees from work and concluded with the following:
  14. Vern, I think that your proposal certainly solves the problem caused by conflicting GAO and COFC decisions. It would also make the protest process much more efficient. My only problem with it is the amount of power the GAO would have. While agencies can reject GAO recommendations, the reality is that most agencies lack the will to do so. Also, my impression of the GAO is that they are too inconsistent on certain issues and have a tendency to engage in ad hoc rulemaking through their decisions. Despite the case I cited to begin this thread, I don't have the same impression of the COFC. If it weren't for these issues, I think your proposal would work. For what it's worth, I would propose a protest system modeled after the disputes process, as follows: 1. Interested party must first submit a timely protest to the contracting officer. Automatic stay of performance unless overridden (same rule as now). Agency override decision may be challenged at COFC. 2. After receiving contracting officer's decision on protest, interested party may appeal decision to either BCA or COFC (must choose one). Decisions of the BCA and COFC would be binding on the agency. 3. Agency or interested party may appeal decision of BCA or COFC to CAFC. CAFC decisions would be binding precedent. 4. Agency or interested party may request rehearing en banc at CAFC or petition for writ of certiorari to SCOTUS.
  15. Where would an interested party challenge an agency's override of a CICA stay?
  16. Vern, Would an interested party have any appeal rights, or would the GAO become the Supreme Court when it comes to bid protests?
  17. Since the contract authorized oral orders, I would argue that the CO directing you to perform work and promising to pay was a task order issued orally. Alternatively, I would argue that the oral direction from the CO was a constructive change to an existing task order.
  18. I don't think that the GAO adopted the COFC decision. In fact, I don't think that the GAO's view changed at all. They knew that the VA wasn't going to follow their recommendation, so they dismissed the case. From Kingdomware Technologies--Reconsideration, B-407232.2, Dec 13, 2012: I like how the GAO handled this. It would be nice if they adopted a practice where they would dismiss a case if their decision would have contradicted a COFC decision.
  19. john_doe (if you're still there), Did the contract authorize the CO to issue orders orally?
  20. ji20874, That's not how I read the case. The plaintiff needed to prove that CICA applied in order to make the case that nonprice factors should have been used in making the selection. The court explained how in-scope modifications were not subject to CICA. Thus, the court had to decide whether the addition to the contract was within scope or not. They decided it was in scope. Thus, CICA (and the requirement for nonprice evaluation factors) didn't apply. [internal citations omitted].
  21. I thought I knew what "scope of the contract" meant. Apparently, I did not. See http://www.wifcon.com/cofc/12-293.pdf. DLA awarded a contract for coats that contained a clause stating that they had the right to add or delete quantities. The original solicitation did not state (or estimate) additional quantities, nor did they receive or evaluate pricing for the potential additional quantities in making the award. After award, DLA decided to add the coats to the contract. They solicited prices from the two contractors that were awarded the original contracts, selected one, and modified their contract to include the additional quantities. The modification increased the value of the contract from ~$20 million to ~$37 million. COFC says no problem with CICA, modification is within scope. Now, if the contract had contained a priced option for a definite (or estimated) quantity of additional coats, FAR 17.207(f) would have required evaluation of the option prices as part of the initial competition to be compliant with FAR part 6 (the part that implements CICA). Now, if I understand the COFC decision correctly, as long as I say I may order additional quantities in the solicitation without specifying (or estimating) a quantity or soliciting a price, I may do so without regard for FAR part 6. Go figure.
  22. FAR 2.101: “Task order” means an order for services placed against an established contract or with Government sources. Does that help?
  23. That's not true. The only limitation on base fee is that it can't exceed three percent of the estimated cost. See DFARS 216.405-2(3)(iii).
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