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K-Law Atty

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Everything posted by K-Law Atty

  1. 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.
  2. 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
  3. 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. T
  4. 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,
  5. 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. N
  6. 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 th
  7. 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 debri
  8. 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!
  9. 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 bindi
  10. 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 bas
  11. 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
  12. 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.
  13. 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!
  14. 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.
  15. Article on Dan Gordon's nomination. http://www.nextgov.com/nextgov/ng_20091005...ss?zone=NGtoday
  16. 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
  17. 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!
  18. 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.
  19. 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 th
  20. 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?
  21. 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 whet
  22. 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
  23. 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 subm
  24. 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% tha
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