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K-Law Atty

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Posts posted by K-Law Atty

  1. The problem with that is the advance planning and work need to be done by the requiring activity. That activity often see the world in a self centered way where they are important, while the card holder/contracting shop AND the rules they are required to follow are not important. That is showing up more and more as leaders are not buying into the idea of contracting being a profession and not just a fancy name for a clerk.

    I also am beginning to see that some in contracting WANT to be just clerks, shuffle responsibility off to legal or back on the programs, or generally don't want to be bothered with fighting for respect by demanding that other activities do their job correctly. When procurement action lead times (PALT) are not established or if established adhered to, then we might as well be clerks again, because we will only have a fraction of the time we need to do things in a professional manner. I for one do not see the usual crisis management as making things better, which is what we are usually left with when the requirement has to be done in a manner where the ethics of the rules are questioned.

    Sadly, I have to agree with you.

  2. The "Three Tests" proposed by the authors concern me a little, specifically what they define as "taking the easy way out":

    Bold added.

    If the definition of "taking the easy way out" is not doing an action because you are following the rules, then you are giving people an ethical loophole to not follow the rules. In fact, one could argue that by this "test" it is not ethical to follow the rules when the rules prevent you from getting the job done. That's absurd.

    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.

  3. I would say it depends.

    If they are acting as resellers or distributers and simply reselling your product to the USG then no this is not a commercial sale. However, if they take your product and change it, bundle it, or use it in the performance of a service and then sell the new product, or bundle, or service to the USG then it could be a commercial sale.

    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.

  4. .

    except for supporting my previous post, this is somewhat off-topic, but since some folks who post here seem to sometimes fail to appreciate the value of protests, I thought I'd repeat some comments from GAO's Report to Congress on Bid Protests Involving Defense Procurements, April 9, 2009, B-401197:

    "... several valuable benefits of the current protest process ...

    "First, protesters act as "private attorneys general" who use the protest process to identify and pursue complaints concerning the procurement system, with a resultant benefit to the public.[16]

    In addition, protests provide a form of indirect congressional oversight of the procurement process. Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979, 984 (3d Cir. 1987) ('the bid protest resolution process created by CICA is also intended to inform Congress of the operation of existing procurement laws, and to use the pressure of publicity to enforce compliance with those laws ? [by enabling] disappointed bidders to compel the executive to explain some of its procurement decisions to the Comptroller General').

    ...

    "In addition, protests bring an important element of transparency and accountability into the federal procurement system that otherwise might be unavailable.

    Protests also provide guidance to agencies in the form of publicly-available decisions interpreting procurement laws and regulations.

    ...

    "As the conference report accompanying CICA stated, the availability of a strong bid protest mechanism promotes competition in the procurement system by providing contractors a measure of confidence that concerns regarding potentially unfair treatment may be addressed in a neutral forum.[17]

    Contractors, particularly small businesses ... might also perceive [possible disincentives to filing protests] as an indication that protests have become disfavored as a matter of policy. To the extent contractors believe that it is less likely that their legitimate concerns will be addressed, the result could be an increased distrust of the U.S. procurement system and reduced participation in the system--especially by small businesses. Either of these outcomes could reduce competition and impair the government's ability to obtain the best value in procuring goods and services.

    ...

    "As Congress has recognized, a robust bid protest process brings an important element of transparency and accountability into the federal procurement system and ultimately promotes competition by ensuring that concerns about unfair treatment will be addressed in a neutral forum."

    .

    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

  5. Your contention is well-supported by a GAO Decision.

    But I don't think its accurate.

    The #1 reason for debriefings is to prevent protests.

    The #2 reason is to contribute to a sense that Contracting officials, in the performance of their duties, are accountable not only to their supervisor, but also to those offerors who participated in a competition in good faith. While not necessarily defending or justifying a particular source selection decision, the competent debriefing provides a rational basis for it.

    Accountability and transparency are at the heart of the GAO Bid Protest forum, and the low threshold for filing a protest (it used to be the price of a stamp) has been lowered to the price of sending an email. It is my biased opinion that the Congress made it easy to protest so that disappointed bidders could ensure that accountability and transparency, and to encourage meaningful debriefings.

    ........

    It should be noted that GAO has stated in more than one Decision that:

    "... An agency?s failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award. The Ideal Solution, LLC, B-298300, July 10, 2006, 2006 CPD para. 101 at 3 n.2; Canadian Commercial Corp., B-222515, July 16, 1986, 86-2 CPD para. 73 at 5."

    I read about that in a GAO Decision about a case where the protestor made it into the competitive range, and the Agency refused to even say who won. The contract value exceeded the threshold for reporting at Defenselink.mil, but never was reported there.

    I think the lesson for Agencies is that, if they have done something improper, do not tell unsuccessful bidders anything, and especially do not give them debriefings.

    .

    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.

  6. 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.

  7. 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. I received a request from an offeror asking for the final technical scores for each offeror. This request was received after the offeor had already received the postaward briefing. No competitive range was established. ; award was made without discussions. Is this information releasable? I know I can provide the overall ranking of all offerors, but the FAR doesn't say anything about providing technical scores of each offeror. Any help will be most appreciative.

    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. The Christian Doctrine does not apply to solicitations because it is case law, and the deciding court applied it only to contracts. The court never considered applying it to solicitations. What the GAO has done is refuse to extend it to solicitations. Why?

    The question about applying the Christian Doctrine to solicitations appears to have come up often in connection with the Service Contract Act. In the most recent GAO decision pertaining to application of the Christian Doctrine to solicitations, Bug Control Unlimited, Inc. Comp. Gen. Dec. B-277739, 97-2 CPD ? 104, the agency issued an invitation for bids for services to which the Service Contract Act applied. The agency cited the proper wage determination in IFB section J, but did not attach it to the IFB. When informed of this by a prospective bidder, the agency amended the IFB to attach the wage determination. The low bidder did not acknowledge the amendment with its bid, so the agency rejected the bid as nonresponsive. The low bidder protested, arguing that (1) the proper wage determination had been cited, even if not attached, and (2) the Christian Doctrine effectively included the wage determination in the solicitation, so the amendment was not material. The GAO rejected that argument as follows:

    In an earlier decision that also involved the SCA and an IFB, Dismantlement and Environmental Management Co., Comp. Gen. Dec. B-257632, 94-2 CPD ? 151, an agency solicited bids for a contract that would have involved work to which the Act would apply. After bid opening, the agency discovered that several mandatory clauses were missing and so cancelled the solicitation. The prospective winner protested, arguing in part that the SCA provisions were incorporated by virtue of the Christina Doctrine and that the cancellation was not necessary The GAO denied the protest in part because it would not apply the doctrine to solicitations and explained its decision as follows:

    In a protest against a negotiated procurement, QuesTech, Inc., Comp. Gen. Dec. B-255095, 94-1 CPD ? 82, an agency did not evaluate the winner?s proposal on the basis of a DFARS clause that should have been included in the request for proposals, but wasn?t. The protester argued that the clause was in the RFP by virtue of the Christian Doctrine and that the agency should have evaluated proposals accordingly. The GAO rejected the argument as follows:

    It thus appears that the GAO has refused to extend the Christian Doctrine to competitions because (a) the court that created the doctrine did not apply it to solicitations and (B) applying it to solicitations could affect competitions in unpredictable ways, which the GAO thinks would be unfair. It would also be a way for protesters to get around the requirement to protest defective solicitations before the closing date.

    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. K-Law,

    Christian Doctrine does not apply because the solicitation does not constitute a binding agreement.

    I have seen that explanation before. However, I am interested in its basis. I would appreciate it if you could provide a little insight.

    In my limited attempt at an explanation, I see several cases that make the following reference:

    "The "Christian Doctrine" provides for the incorporation by law of certain mandatory contract clauses into an otherwise validly awarded government contract; it does not stand for the proposition that mandatory provisions may or should be incorporated by law into a solicitation."

    I was able to track this cite back to B-163753, however nothing in that case, that I can follow, appears to support the statement that the Christian Doctrine does not apply because the solicitation does not constitute a binding agreement.

    I am obviously missing something. Thanks for the help.

    not sure wh; 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.

    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. I have a question on a related 'provisions' topic...

    We currently have a Solicitation out on the street... it?s for a recurring, non-personal, commercial, service (below SAT). However, after several weeks of market research we have concluded there are very, very few vendors in this particular arena. The major player in this market has received and reviewed the Solicitation and now insists that some of the provisions in the Solicitation be 'amended/revised/tweaked' to his satisfaction --- additionally he wants some provisions added and others deleted. I have attempted several times to explain to him that this is the Solicitation and NOT the contract --- and the 'mandatory' nature of this effort (and the required provisions) --- but this vendor is refusing to yield. The Contract Specialist and the end-user have searched high & low for one or two more competitors but (as stated earlier) they are seriously few & far between! (Also worth noting --- we are in an overseas location.)

    What 'options' do we have available in dealing with this obstinate vendor? The Solicitation is due to close in 3 days. :o

    Your thoughts/comments/questions welcomed...

    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. As an interesting aside:

    the oft referenced Christian Docrine only applies to mandatory contract clauses not to solicitation provisions.

    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. :o 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. Sorry,

    I did my last reply wrong I guess. Anyway, I would just like to say that FEDBID only runs a reverse auction site. They are not "buyers". That would be the contract specialist/officer posting their requirement or giving it to the FEDBID employee to post. I would not recommend it for complicated services without putting out the solicitation and technically selecting the firms that should bid in the reverse auction. FEDBID can arrange a separate auction of just your requirement.

    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. There has been another reverse Freedom of Information Act decision in which the District Court for the District of Columbia has blocked government disclosure of a contractor's unit prices. GENERAL ELECTRIC COMPANY, Plaintiff, v. DEPARTMENT OF THE AIR FORCE, DDC

    Civil Action No. 01-1549 (CCB), August 28, 2009. https://ecf.dcd.uscourts.gov/cgi-bin/show_p...c?2001cv1549-67

    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. The gist: He's a nice guy, he has experience running GAO's protest shop, and he knows procurement law.

    Steve Schooner said it all:

    It is not clear to me how Mr. Gordon's niceness, experience, and knowledge especially qualifies him for that task. It is not clear to me how the authority of the OFPP administrator extends to that task.

    Mr. Gordon's nomination is as good as most and certainly better than some (Bedell, Safavian). The tendency of the press is to declare every nominee to a presidential appointment to be at the genius level. Let's see what he does and judge him on that.

    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. Just starting to use reverse auctioning. Are there other reverse auctioning sites out there besides FedBid? Anyone have lessons learned? How are folks using it for other than supplies? Thanks for any info.

    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!

  17. 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.

  18. Whynot:

    Your last two posts are ridiculous. K-Law Atty said nothing to warrant your responses to his post.

    dtes:

    You wrote: "As a general rule of thumb you can consider the price change that you expect to result from the change. If it's marginal (~10%) it's probably in scope; but, if it's significant re-compete."

    You are wrong. Read, e.g., Nash and Feldman, Government Contract Changes, 3d ed. (Thomson-West, 2007), Vol. I, pp. 75-76:

    In any case, your statement is absurd on its face, since it would be absurd to call a 10 percent change to a $1 billion contract "marginal."

    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.

  19. It appears that a senior lawyer from GAO is the nominee-go figure!

    http://www.govexec.com/story_page.cfm?arti...;dcn=todaysnews

    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?

  20. 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. :lol:

  21. I would just give the CO what you think is sufficient to meet the requirement.

    Certainly do not ask a question to the CO that you do not already know the answer or know the answer that you want. Anyway I doubt the CO knows more than you do. You might be told to complete SF 1403, 1404, 1405, 1406 1407.

    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.

  22. 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.

  23. 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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