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govt2310

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  1. If a contract was awarded using FAR Part 12 (with FAR 8, 13, or 15), the contractor has to comply with all applicable Federal laws, even new ones that did not exist at the time of contract award, in accordance with FAR 52.212-4(q). Is there an equivalent clause for non-commercial contracts, say in FAR 52.215 or elsewhere? One that says "the contractor shall comply with all applicable Federal laws," including new Federal laws passed by Congress during the period of performance of the Contract, which the Contractor could not have anticipated would happen? And that the Contractor must do this at no extra cost to the agency?
  2. @Vern Edwards and @Retreadfed Ok, I see what both of you are saying. Thanks!
  3. @Vern EdwardsOk, I see what you mean. FAR 9.503 doesn't expressly state that the Waiver is to be done after release and proposals have been received. It does say "shall set forth the extent of the conflict." That is what makes me think the FAR Council intended for this Waiver to be done only once an offeror with an OCI had submitted a proposal. It makes it seem like the facts of a specific offeror's situation have to be known. In contrast, FAR 1.403 Individual Deviation, doesn't require the CO to "set forth the extent of the conflict." It just says the CO has to document the justification and approval. Here is FAR 1.403 in full: FAR 1.403 makes it sound like the Individual Deviation could be for a situation where the OCI is not an OCI regarding a particular offeror (or potential offeror). It could be an OCI that is presented by the nature of the Contract/SOW. The CO would not have to address "the extent of conflict" in the Justification for Deviation. FAR 1.403 prescribes no Content Requirements for this Justification.
  4. @C Culham and @Vern Edwards Thanks! Well, Public Law 117-324 (Dec. 27, 2022) just says that the FAR Council has to revise the FAR to address OCIs, including BGR-OCI, and provide illustrative examples. It does not specifically define what a BGR-OCi is, nor does it specifically state that a BGR-OCI is to be treated or addressed in a particular way. If this Public Law is considered "a law" that "precludes" deviation" IAW FAR 1.402, then no deviations can ever be done to the FAR. The FAR itself was created because Congress passed a statute, the OFPP Act, directing the FAR Council to issue acquisition rules. And yes, I am aware of the FAR 9.503 OCI Waiver tool. However, that has to be done after the Solicitation has been released and proposals have been received. If an agency could do a deviation and put notice of this deviation in the Solicitation, if no offerors timely protested it, then no one could raise this issue in a post-award protest. And thank you for the link to the NASA Handbook, that is a helpful resource.
  5. FAR 1.402 Policy states, "Unless precluded by law, executive order, or regulation, deviations from the FAR may be granted . . . ." FAR 9.505-2, which addresses the Biased Ground Rules Organizational Conflict of Interest (BGR-OCI), is not based on a law or EO. It is not "based" on another "regulation" either. It appears that the concept of a BGR-OCI was present in the first issuance of the FAR back in 1983, 48 FR 42142 (Sept. 19, 1983). In drafting the FAR, the FAR Council stated that they did this pursuant to the OFPP Act, 796 Pub. L. 93-400 (Aug. 30, 1974), starting at Section 2. That Act does not specifically address BGR-OCI. Therefore, the FAR 9.505-2 provision on BGR-OCI is not based on a law. This leads me to ask the question: would it be possible for an agency to issue a FAR 1.403 Individual Deviation from FAR 9.505-2 (BGR-OCI prohibition)?
  6. Thanks Vern! Thanks C! Here is the link to 62 FR 44813-02, https://www.federalregister.gov/documents/1997/08/22/97-21492/federal-acquisition-regulation-service-contracting.
  7. In January 2006, the FAR Council published in the Federal Register a Final Rule updating the FAR to add a definition for Statement of Objectives (SOO) to FAR 2.101, and it made other changes that implement the Task Force's recommendations, 71 FR 211 , January 3, 2006, https://www.federalregister.gov/documents/2006/01/03/05-24548/federal-acquisition-regulation-change-to-performance-based-acquisition.
  8. In July 2003, The White House OMB OFPP Interagency Task Force on Performance-Based Service Acquisition issued a report called "Performance-Based Service Acquisition: Contracting for the Future," https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwihr8nE7L_9AhV9EVkFHRT3A4EQFnoECAoQAQ&url=https%3A%2F%2Fobamawhitehouse.archives.gov%2Fomb%2Fprocurement_guide_pbsc%2F&usg=AOvVaw1PLhv9wA-QiU2IqYA8lwnA This document recommended updating the FAR to add definitions for "Statement of Objectives (SOO)" and so forth. I searched but cannot find the exact FAC and Federal Register Proposed Rule (and Final Rule) that implemented this. Does anyone have the link?
  9. I think I found the Federal Register document where the FAR Council added FAR 37.6 to the FAR, see 61 FR 40284, August 1, 1996, Federal Register Volume 61, Number 149, Proposed Rule, "Service Contracting," https://www.federalregister.gov/documents/1996/08/01/96-19486/federal-acquisition-regulation-service-contracting. It does not cite a statute as authority or the reason why they did this. They only cite OFPP Policy Letter 91-2, Service Contracting.
  10. Does anyone know when FAR 37.6 Performance-Based Contracting was added to the FAR? I found something online that said "1998," but it is not clear if that is part of the FAC number or if that is the year it actually got added. Does anyone know the FAC number? And does anyone have the link to OFPP Policy Letter 91-2, which talked about Performance-Based Contracting? I'm sorry I keep using the phrase PBC, I realize that is the old name, and that now the current term is Performance-Based Acquisition. https://www.law.cornell.edu/cfr/text/48/37.601
  11. Vern Edwards, I see you quoted the OFPP Policy Letter 91-2. I can't find this letter online. Obviously, you have this letter, as you were able to quote from it. Can you please post the link to OFPP Policy Letter 91-2?
  12. @formerfed It has sunk in. I think I see what you are saying. But I am still doubtful that the agency could make a reliable IGCE based only on a high level Product Vision and that the offerors could price their bids on the same. But apparently, it is being done.
  13. Thanks for all the responses. Both TechFARHub and the GAO Guide say there are already flexibilities in the FAR to do Agile (but then they both only name 1 example, which is modular contracting), but Nash & Cibinic wrote in an article that the FAR is not compatible with Congress' instruction to do "agile." FAR 9505-2(a)(3) is for "development work." I believe this is for a situation where the contractor "invented" something, developed a new method/technique, and why would the USG want to cut out the leader in the field here (or rather, the only one who can do it). A contractor that does software development is different. The contractor did not invent the software. What is supposed to happen is, the USG defines its requirements ("the software must accomplish tasks 1, 2, 3, etc . . . . the software must have features 1, 2, 3, etc . . . ."), the the contractor "builds" the software. The USG did the design, and then the contractor did the build. Or, the USG can hire contractor #1 to do the design, then contractor #1 has a Biased Ground Rules OCI and cannot bid to become contractor #2, who builds the software. With agile methodology, the same contractor does both "design" and "build." Now, I realize there are many sources that say that it is the USG that retains all decision-making authority, approval authority, however, if the requirements are not defined up front, and if agile is about being "collaborative," it is highly likely that the federal employees will just "go with" whatever the contractor thinks the requirements should be. In that scenario, the contractor is defining the requirements and also fulfilling them. How can this be ok? Additionally, if the requirements are not defined up front, how can the USG do the IGCE? How can the offerors calculate the price to bid? Everything is too wide open here. And how can the agency hold the contractor to delivering software that meets all of the requirements?
  14. To formerfed: I'm seeing on SAM.gov that many agencies are combining into a single contract the "design, development, deployment, and maintenance," such as the Treasury IRS EDOS Solicitation posted in July 2022.
  15. Agile is a commercial practice for IT. I think I see what you mean, C Culham. Agencies are treating agile as only a "commercial service," not a "commercial product." But in the end, doesn't the agency want a working software, a commercial product, delivered to them? I think this is being forgotten by many agencies. In any case, thanks!
  16. Thanks, joel hoffman! Well, situation that prompted this question has to with research on "agile software development" and "agile acquisition." In "agile," the agency doesn't define the requirements up front. While it defines the scope by making a "Product Vision" (just 1-2 sentences), it doesn't do any more than that. Even in a SOO situation, where the offeror writes up the PWS, all of the requirements are written only in terms of cost and schedule. In "agile," the "definition of done" (the acceptance criteria/requirement) is defined during contract administration/performance, not in the solicitation. At least in A&E and builiding design/construction, the Scope of Work defined by the Government actually gives you a concrete idea of what functions/constraints the final "product" must meet ("Contractor must construct and deliver a building at X location, it must accommodate at least 5,000 federal employees in office spaces, it must meet security requirements, it must have X parking spaces, etc").
  17. FAR 36.104(a) cites to 40 USC Chapter 11, as well as to 10 USC 3241 and 41 USC 3309. 41 USC 3309 appears to state that an agency can use a "traditional acquisition approach of design-bid-build," but if it chooses not to use that, then "the head of an executive agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility . . . ." It sets forth criteria that the CO is supposed to use in determining whether two-phase selection procedures are appropriate. It states that "The agency develops, either in-house or by contract, a scope of work statement." The title of 41 USC 3309 is "Design-build selection procedures." FAR 36.102 Definitions defines Design-bid-build to mean "two contracts and two contractors." Then it defines Design-build as "combining design and construction in a single contract with one contractor." It appears to me that there is statutory authority to do "design-build" by one single contractor, for the sole purpose of making a public building/facility. In order to apply this thinking to something else, like software design, development, and delivery, wouldn't an agency need Congress to pass a statute giving it this kind of authority?
  18. FAR 36.104(a) states: "Unless the traditional acquisition approach of design-bid-build established under 40 USC Chapter 11 . . . or another acquisition procedure authorized by law is used, the CO shall use the two-phase selection procedures authorized by 10 USC 3241 or 41 USC 3309 when entering into a contract for the design and construction of a public building . . . ." What is the definition of "design-bid-build"? I don't see it in FAR 2.101. To me, what an A&E firm does, as described in 40 USC Chapter 11, is only "design." They don't build anything. I'm sorry that my question is causing confusion. I am being told that the Government can and does by "design-build" services to build public buildings, and I am being told this justifies applying this approach to other things, such as computer software. I'm trying to figure, is that true? Does the Government buy "design-build" services to build public buildings, where there is only one Contract, and that Contractor does both the design and the build? If so, how can this be?
  19. A Biased Ground Rules OCI is when Contractor A writes the requirements (the SOW) for Contract #1, then Contractor A tries to compete for Contract #2 (which has the SOW that Contractor A just wrote). That is why FAR Part 9 conflicts Contractor A out: Contractor A cannot submit a proposal for Contract #2. While in theory, an offeror can submit an OCI mitigation plan, for a biased ground rules OCI situation, there is no way to mitigate it, not even by subbing the work for Contract #2 to a subcontractor. Well, the scenario above involves two contracts. What if an agency just did one contract where the SOW was to both figure out the agency's requirements, write it up, then provide the requirement. This sounds ludicrous to me, but it is an actual question that has been raised. They are thinking, how is it that FAR Part 36 allows for Architecture & Engineer contracts to be "design-build"? In essence, the agency is saying, we don't know what our requirements are, all we know is the broad scope (we need a new building), and it relies on the contractor to flesh out the details and make the building. Why couldn't this concept be applied to other stuff, like software development, cloud computing, etc? I think this is wrong, but what law/regulation/court decision do I cite to show that this can't be done? Or can it?
  20. Thank you for all you have done all these years, Bob Antonio! We appreciate it very much!
  21. Thanks, Vern! The JAG Contract Attorney Desk Book (2022) is listed on this site, https://tjaglcs.army.mil/publications. And here is the exact PDF, https://tjaglcs.army.mil/documents/35956/56922/2022+Contract+Attorney+Deskbook.pdf/9a2d2125-61b4-7dbe-8e1c-5ccf1339d9dd?t=1657901660444. Yes, I did a keyword search for "Trade Secrets Act," and it appears 9 times. However, they are almost all in the chapter on Intellectual Property and shed no light on actual examples of federal employees that were fired for inadvertent disclosure. Thanks, bosgood! I will look at the Wallington decision.
  22. Thanks, Vern. By the way, it wasn't me. The Trade Secrets Act 18 USC 1905 says "shall be fined . . . or imprisoned not more than one year, or both" and "shall be removed from office or employment." What I don't understand is, I am familiar with stories ("cautionary tales") of these types of inadvertent disclosures happening at various federal agencies. The information disclosed in many of those instances seemed to fit the term "trade secret," yet I do not recall ever hearing of a federal agency firing the federal employee that disclosed the information. I do not even recall them transferring the person to a different position or "office" or losing their CO warrant. Yet, the statute says "shall be removed from office or employment." Even in the DoD OIG Report on the Amazon JEDI scandal, there was no mention of a violation of the Trade Secrets Act, a recommendation that the employees involved "shall be removed from office or employment," etc. It did state that the leadership involved should investigate whether administrative action was appropriate, but that's it. It didn't specifically cite the Trade Secrets Act. I can't find an example of an 1102 at any agency that was actually fired for a TSA violation. I find this very strange.
  23. IAW FAR 3.104-7, a PIA Violation is when disclosure was on purpose and it occurred before award. What if an 1102 employee purposely discloses contractor proposal information after award? That would not be a PIA Violation. However, it has to be a violation of some other law(s). Trade Secrets Act? FOIA? But there must other laws than that. Also, what if the 1102 inadvertently discloses this information after award?
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