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K-Law Atty

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Everything posted by K-Law Atty

  1. This is purely a philosophical question. I'm a relatively new user, but I've been involved in government acquisitions for about 8 years now, always as an attorney. One of my biggest frustrations has always been a reluctance on the part of my clients (the contracting officer, the program manager, etc.) to bring issues to me EARLY in the process. As I read the posts in the forum, so many of them seem to me the kinds of questions that could and should be asked of the program counsel or contract attorney. I know I would have been ready, willing and able to help my clients work through them. Not that I'm an especially talented or knowledgeable attorney, but that's what my job is. So, here's my question to those of you who work in aqcuisition: Are you asking these same questions of your attorneys? If not, why not? Is it because you don't have a program counsel assigned? Is it because you're not comfortable with their competence? Is it because you're afraid you won't like the answer you get? Are they non-responsive or hard to work with? If you're in a working capital or revolving fund, is it an issue of cost? Obviously, I don't want anyone to reveal privileged information nor am I trying to start a frenzy of "let's kill all the lawyers." But I sometimes sense a real reluctance to bring attorneys into the process, and I'm really interested in why.
  2. Ethical Rule-Breaking?

    Sadly, I have to agree with you.
  3. Ethical Rule-Breaking?

    The tests proposed are essentially those used to justify torture when fighting terrorism. "The end justifies the means" has been used to rationalize any number of illegal and sometimes reprehensible actions. I think the problem is people--be they contracting attorneys, contracting officers, administrators, or the workers--who say "no you can't do that" and stop there. As several have pointed out, you can frequently find another, right way to do things, but it often takes more work and generally requires advance planning.
  4. I have to respectfully disagree. The above test is not the FAR's focus. The FAR definition looks first at whether the item is "of a type customarily used by the general public or non-governmental entitities for purposes other than governmental purposes." Your example above fails this test, it seems to me. Secondly, the FAR looks at what the seller has done (or will do--see (2) under the commercial item definition) with the item--has it been sold OR offered to the general public. Thus, "simply reselling your product to the USG" could in fact qualify as a commercial sale. I think Loul got it right--the question of whether a sale by one defense contractor to another depends more on the product itself than, in this case, what the buyer plans to do with it.
  5. Postaward Debriefing

    In the news today: Pentagon Reviews Contract Protests After 24% Spike By Tony Capaccio and Gopal Ratnam, Bloomberg News The Pentagon is evaluating the causes and costs of a record 611 contract-award protests in 2008 by companies competing to provide services to the military or supply products from weapons to ships and planes. The review that began last month will examine Pentagon weaknesses in setting weapons requirements and shareholder pressures on companies to protest lost orders, Brett Lambert, the Pentagon's director of industrial policy, said in his first interview since taking office. The Government Accountability Office found in April that Pentagon contract protests rose 24 percent in 2008 from the previous year. Among the protests last year was Boeing Co.'s successful challenge of a $35 billion aerial refueling tanker award to Northrop Grumman Corp.Lockheed Martin Corp. and United Technologies Corp. on two previous occasions successfully challenged the Air Force's Combat Search and Rescue helicopter contract awarded to Boeing in November 2006. The Air Force needs to replace the Pave Hawk helicopter, used to rescue pilots after crashes, made by United Technologies Corp.'s Sikorsky since 1982. Lambert declined to say whether the study might prompt the Pentagon to ask Congress to modify a 1984 law that allows companies to protest a contract loss to the U.S. Government Accountability Office. The study will be completed "as soon as possible" for presentation to Undersecretary for Acquisition Ashton Carter, Lambert said. "I want to understand what the costs to the companies are, and then I want to understand what the costs to the war-fighter are in the delayed capabilities because these products and services are not being delivered," Lambert said in yesterday's interview. Lockheed said in July that second-quarter profit declined because three of its information-service contracts were delayed by protests. "I'm trying to promote this atmosphere that we are two sides of the same table," he said. The Pentagon represents war-fighters and taxpayers, and companies "are representing shareholders," he said. "Their motivations are different in some ways than ours." Lambert said protests increased 38 percent from 2001 to 2008 as the overall value of defense contracts awarded in the eight years rose 120 percent. If companies hire "$1,000-an-hour lawyers, they will figure out a way to protest," Lambert said. Companies can bill legal costs to the Pentagon as general overhead, he said. The review will "concentrate on serial protesters and bad actors," Lambert said. "It's not that we want the department to prohibit or impede the ability of contractors to seek sincere remedy." Lockheed infrequently protests contract awards, and does so "only after a careful and thorough review," Jeff Adams, a company spokesman, said in an e-mail. The company "continues to be concerned about the growing number of protests other companies file which ultimately impacts the global security missions of our customers." The Pentagon study "would confirm that Boeing has rarely turned to protests of contract awards," company spokesman Dan Beck said in an e-mail. "Boeing, unlike some other companies, does not lightly object to the decisions of our customers and we always consider the potential impact on the warfighter." Boeing's protest of the tanker contest in 2008 fit the company's criteria, Beck said. A representative for Northrop did not immediately respond to a request for comment. The Pentagon is also reviewing its conflict-of-interest policy to comply with the Weapons Systems Acquisition Reform Act passed in June that requires officials to specify rules for separating contractors' functions. The details are due by March. "What needs to be understood is that we are just trying to rule with reason and that there are certain things we do not want to have happen," Lambert said. "We don't want contractors that we rely on deciding how a bid should be submitted and then have that same company support that contract effort." Northrop Grumman Corp. cited the impending conflict-of-interest rules as the reason for selling its TASC advisory services unit to KKR & Co. and General Atlantic LLC on Nov. 9. The two private-equity firms together agreed to pay $1.65 billion for the unit. Officials from the Pentagon and other agencies including NASA will meet with defense industry representatives on Dec. 8 to gather input from companies before proposing a draft policy, Lambert said. The Defense Department doesn't want to force contractors to divest their units or "perform unnatural business acts because of something they think is going to happen," Lambert said. "We may move the bar by a few inches but we are not going to pole-vault," he said. http://www.bloomberg.com/apps/news?pid=206...id=aIrSOQpbzRfc
  6. Postaward Debriefing

    If something is well supported by GAO decisions and, thus, is in fact the current state of the law, then I think it IS accurate. I did not say it was the only reason for debriefings; I said it was--according to the agency tasked with reviewing protests--the primary reason. I would be interested in your evidence that debriefings prevent protests, because my experience has been more often than not that debriefings--even when carefully, properly, and competently presented--actually tend to result in more protests. We in the government always HOPE they will prevent protests, but, as you say, given the ease with which a disappointed offeror can file a protest, most will seize on anything said in a debriefing to justify their protest and to show that the government has not acted appropriately. I think the ratio of denied/dismissed protests to those sustained supports my viewpoint. We all have seen numerous protests that clearly were meritless but the agency was forced to respond and GAO forced to decide anyway. It is not that I "fail to appreciate the value of protests," it is that I fail to see the value in meritless protests that boil down to nothing more than "mere disagreement" with the agency's decision.
  7. Options

    I also agree that we need more information. Do you really need to extend the contract or just the period of performance? The period of performance can extend beyond the end of the ordering period but then you can't issue any new orders. The other issue is what money are you using? Options are generally made subject to the availability of funds, because we don't know when we evaluate them and award the original contract if we'll have the money. Depending on your circumstances, simply "extending" the contract could be viewed as one non-severable project, which would require funding with the same year money as when you issued the TO.
  8. Postaward Debriefing

    Look at your FAR again--15.506(d)(2) says you may provide the "technical rating, if applicable, of the successful offeror and the debriefed offeror." This is one of those cases where I would argue that the FAR's specific listing of those technical ratings means you should default to withholding the ratings on other offerors. Additionally, I would argue that such information would be protected under the FOIA as "pre-decisional." Also, any time you release other offerors' ratings, you run the risk of releasing proprietary information. Finally, remind your debriefed offeror why we give debriefings: The ?primary function of a debriefing is not to defend or justify source selection decisions but to provide unsuccessful offerors with information that would assist them in improving their future proposals.? See AWD Tech., Inc., Comp. Gen. Dec. B-250081.2, 93-1 CPD ? 83, at 6 n.2. How does this information help the offeror, if he already has his relative ranking? It also doesn't seem to me to fit under 15.506(d)(6), which covers "reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed." Your offeror is just fishing. Ask your program counsel, especially for help with the FOIA aspect.
  9. Vern, Every time you post something, I learn something. While that of course could speak volumes about my own lack of knowledge, I think the real message is just how valuable these discussions--and your contributions, especially--are. I just hope that the federal government, in its infinite wisdom and search for the totally secure online environment, doesn't decide to block my access!
  10. I think you're trying to make it too difficult. An RFP is a "REQUEST" for proposals; a "solicitation" similarly "solicits" someone to provide something; an "invitation for bids" "invites" the contractor to make a bid. Yes, the government has to comply with the terms of the solicitation, but there is no MUTUALLY binding agreement. No contractor HAS to do anything. Conversely, the government owes the contractor no "consideration" (in the contractual sense of the word). All the government has to do is evaluate IAW the RFP, solicitation, etc. Thus, all the basic requirements for a binding agreement--aka a CONTRACT--are missing: offer and acceptance, mutual consideration, a meeting of the minds, etc. While you could argue that offerors are required to comply with the terms submitted in their proposal, the offer/proposal alone doesn't rise to the level of creating a contract. Plus, it can't constitute a binding agreement or every time the government issued a soliciation or RFP and didn't have all the necessary funds available, it would be incurring an unfunded obligation, which we all know is a bad thing.
  11. If it's a commercial service and the "major player in this market" (and apparently the only one willing to bid) is complaining about the clauses, then I would be asking whether FAR 12.301(a) comes into play: Are you including clauses that are inconsistent with customery commercial practice? Unless it's a mandatory term under FAR 12, then you have a fair amount of leeway. You certainly don't want to require "provisions" in a solicitation when you aren't going to include the corresponding "clauses" in your contract, because then you open yourself up to charges that you awarded a contract based on terms other than those in the solicitation. And of course you have to protect the government, while also obtaining the needed services, so you have a balancing act here. What if you call the vendor's bluff and don't change the provisions? Will he forgo this opportunity by refusing to submit an offer?
  12. Because the solicitation does not constitute a binding agreement; therefore there is no need to "read" anything into it. Yes, the government has to comply with the terms of the solicitation but can also change them at any time while the solicitation is still open. We don't have the same flexibility with contracts. And, to answer an earlier question about whether a "provision" has more legal effect than a "clause," from a lawyer's standpoint, we don't care what you call it, we just care what it says, where you find it and how it got there. Same thing with "terms and conditions." I can't tell you whether a term is more important than a condition; I'm just going to look at the order of precedence clause in 52.212-4(s) in most cases and go from there.
  13. Reverse Auctioning

    I concur. Reverse auctions, by their very nature, are not appropriate for complex services in most cases. If you are going to do it, you have to do a two-part procurement, as Boof suggested--qualify your firms first on technical & past performance, and then do the price auction. As a general rule, I would not recommend it for complex services, because it can really limit (if not negate) your ability to do a best-value source selection. If all you want is someone to mow the grass, that might work.
  14. Thank you, Vern! Just got one of these and knew I had seen something somewhere on a recent case. I gave up some time ago trying to keep track of the various positions on release of unit prices. Thanks again!
  15. I agree with all you've said, BUT in my experience Steve Schooner NEVER discusses the government acquisition system without pointing out that the workforce needs fixing. Not that I disagree with him, it's just that it would be nice to hear him address any of the other problems we face--especially since, as you accurately point out, as the OFPP administrator, Gordon may not have much to say about it.
  16. Article on Dan Gordon's nomination. http://www.nextgov.com/nextgov/ng_20091005...ss?zone=NGtoday
  17. Change vs New Work

    Recognizing that not everyone will have a copy of the Changes treatise (although if you don't, your contracts attorney should), GAO also has a good discussion in the Red Book (their fiscal law guidance) on scope when dealing with what money to use. And they just issued a new decision on scope. B-401628, Outdoor Venture Corporation, October 2, 2009 http://www.gao.gov/decisions/bidpro/401628.htm
  18. Reverse Auctioning

    This article is old but it might give you a start. http://www.loc.gov/rr/frd/Military_Law/Mil...es/27648D~1.pdf More recently, some folks at the Naval Postgraduate School did a paper you can find at http://www.dtic.mil/cgi-bin/GetTRDoc?AD=AD...oc=GetTRDoc.pdf Good luck!
  19. Dan Gordon also has written and spoken extensively on conflicts of interest in government contracting. If you've been following GAO rulings the last few years, this is an area where the government has gotten in trouble. See https://acc.dau.mil/CommunityBrowser.aspx?id=216076 (I hope this link works--if it doesn't, just Google dan gordon and conflict of interest.) As I said in another post, I have found Mr. Gordon to be smart, articulate, straightforward and reasonable, and I think he would bring useful experience and perspective to the job.
  20. Change vs New Work

    I agree entirely with Vern. I tried hard NOT to give the impression that I was condoning out-of-scope changes just because no one would protest. Rereading my post I don't think that's what I said. My point was that the controvery over scope often arises because the government doesn't want to pay for a change that the contractor thinks is out of scope. The FAR clearly envisions changes to the contract (that's why we have a changes clause), and if the government is willing to pay and the contractor is willing to perform, then the scope of the change may not ever become an issue. As to the "percentage," case law is very clear that numbers alone cannot determine whether a change is within scope. The nature of the work is often far more important that the numerical extent. And so I beat my almost dead horse a little more: Talk to your attorney.
  21. Dan Gordon is smart, articulate and well-respected (as far as I know) in the government contracting community, and he and has years of experience in reviewing government contracts and fiscal issues, dealing with senior government and industry leaders, and serving in a top position at a large agency. You seem surprised at the possibility that he might be nominated. Is it just the fact that he's a lawyer or is it something else?
  22. Change vs New Work

    You have to look at your original specs or statement of work, as Mr. Hoffman said. Remember, there are really two aspects to contract scope/changes: The first is whether you can require the existing contractor to perform the work. This really only becomes problematic if you want it done without paying any additional money. Most contractors are more than willing to do whatever they can if you're willing to pay for it. I'm not saying that having the money to pay for it necessarily justifies adding out-of-scope work; I'm just discussing the realities of my experience. The second issue is whether another contractor--not the incumbent--could protest that you have violated the rules on competition by adding out-of-scope work. That's going to depend on what your original solicitation said. If the original solicitation and the resulting contract were to, for example, build all sidewalks across an entire campus, with estimated quantities and representative locations, then you probably have an in-scope change because this is a broadly conceived contract. If your specs were very finite and detailed, e.g., to add all sidewalks connecting the dorms and the cafeteria, and now you want to add sidewalks outside the gym, which is on the other side of campus, you may have problems. And now the paid political announcement: talk to your program attorney.
  23. FAR 9.104 materials

    OK, admittedly, I have only been on the government side of this process, but I am afraid I don't understand what you are saying. From the government's perspective, if an offeror really doesn't understand a requirement, I want him to ask--not just give us what he "thinks" we want. In this case, I can see that the CO may not have a lot of information on this, but that doesn't mean the offeror shouldn't ask. Comp. Gen. case law is replete with rulings that the burden of submitting a properly prepared, complete proposal is on the contractor. Any questions that could have been asked but aren't before proposal/bid submission are usually waived as a protest ground or other basis for questioning award. Plus, from the government's perspective, that's an inefficient way to run an acquisition because it reduces the likelihood that we will get truly responsive proposals. I have never heard industry representatives advise never asking a question to which you don't know the answer. If something is truly ambiguous, then probably nobody knows the answer. While sometimes contractors' questions annoy me (because they're just fishing) and we have responded that they should just comply with the proposal, other times they have pointed out actual issues with the RFP and given us the chance to correct them. So help me understand your answer.
  24. Did you have any kind of past performance evaluation? If so, then was your past performance evaluation based only on your evaluation of this company? What about FAR 19.6--the small business certificate of competency and determinations of responsibility? Does the contractor have the "capability, competency, capacity, credit, integrity, perseverance and limitations on subcontracting" to perform this contract? If you haven't already, you should bring your small business specialist into the picture. What concerns me more is your comment as follows: I think the issue is the winning SB submitted his quote and did not include information that the the SB will sub out. The winning proposal on its face appeared the SB would provide all services organically. All other KTRs could not provide all required services organically and responded with who they would sub out to. SB quote did not provide any indication of subing and is awarded K but this award may have gone to a different KTR if Gov knew SB intended to sub. This situation seems unfair to other KTRs. Has your source selection authority accurately and completely documented the rationale for award according to your evaluation factors? Is it clear that award was based on evaluation factors listed in the solicitation? Did your winning contractor provide the lowest quote? If not, then what evaluation factors did you use to justify award? I DON'T WANT YOU TO ANSWER THESE QUESTIONS in this forum. I suggest you discuss them with your program attorney, because if the lack of subcontracting really was the determining factor and it WASN'T a stated evaluation factor, then you may not be able to defend your award against a challenge from an unsuccessful offeror.
  25. This is also a common practice with software licenses and other agreements for online services and/or subscriptions. Most do, as others have said, conflict with a number of federal government requirements. Besides the conflict of law provisions mentioned earlier, I've found that many also include automatic renewal clauses--that is, unless you affirmatively tell them you aren't renewing, they do it automatically. Others try to limit the government's right to terminate or impose damages on us for various breaches or misuse. Of course, 99.9% of the time, it doesn't matter. It's that .01% that worries attorneys. If a company wants the government's business badly enough, it should agree to a clause stating, essentially, that the user/subscriber/software agreement governs only to the extent that it doesn't conflict with the FAR or any other provisions of federal law. Remember, FAR 12.3 does tell us that, "to the maximum extent practicable," we should include only those clauses required to implement federal law or determined to be consistent with customary commercial practice. So you have to strike a balance between the two.
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