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K-Law Atty

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Everything posted by K-Law Atty

  1. While I am getting off the original topic somewhat, I think that "two Government contracts buying the same thing" is not what JDRYKS meant. As I read his post and the follow-ons, we are talking about the same agency having two contracts to do the same work on the same aircraft because the FMS customer wants a different vendor. In that case, leaving aside the FMS aspect, my response is that the agency does not have a bona fide need for the second contract because the first contract already has and continues to fulfill that need. Customer preference does not constitute a BFN. Thus, I would argue that the agency cannot properly obligated the 2nd contract funds without violating the Anti-Deficiency Act (again, without addressing the unique aspects of FMS funding).
  2. I know in the DoD, the DoD Financial Management Regulation, Ch. 10, governs contract payments. http://www.defenselink.mil/comptroller/fmr/10/index.html Then each agency also has its own FMR. I don't know if this will help you at all. As an attorney, I always checked to make sure there was either a finance officer's certification that funds were available or the clause awarding subject to the availability of funds. I expected that to come from either a finance or resource manager. I also always checked my fund cites on the contract as a whole and each CLIN. This legal review should be part of the checks and balances to ensure funds are used appropriately. Also, while the situation you describe might result in funds being used inappropriately at the time of contract award, as in the original scenario, that impropriety may not last the life of the contract. Again, in DoD, while the CO may have the warrant, DFAS has the checkbook, and they won't pay without proper FM documentation. Even then, I am frequently frustrated by the effort it takes to get DFAS to pay even obviously proper claims.
  3. As I read FAR 12.302, "Tailor of provisions and clauses for the acquisition of commercial items," the ONLY provisions that are required to be included, unchanged, are those specifically called out from 52.212-4: Assignments, Disputes, Payments, Invoice, and compaliance with other laws unique to gov't contracts. 12.302(a) allows tailoring to adapt to each acquisition. In a situation where all we really need is to include things like the NAICS Code, DUNS #, CCR, etc., we find it easier to simply include JUST the language we want rather than starting with 52.212-1 and trying to modify it to fit. I guess in a sense that is including a tailored version of 52.212-1; we just don't call it that. I also go back to 12.301, which requires us, to the maximum extent practicable, to only include clauses that are required to implement the law or EOs or are consistent with commercial practice. While I strongly believe that very few acquisition professionals are stupid, lazy or ignorant, I do think that we too often see a reliance on matrices, automated contract writing systems, etc. For example, I continue to see the clause providing for a price evaluation adjustment for Small Disadvantaged Business included in DoD solicitations, even though DoD has suspended that provision for years and issues a new memo to that effect every spring.
  4. In reply to everyone, I would just say that we are probably talking about much the same thing but can't reach that conclusion in this type of communication forum. That said, I appreciate Vern's defense, which I will always gladly take, as I have long appreciated his viewpoint in a number of forums. I would also say that the FBO search engine does not seem to me to be as inclusive in its results as I would hope. For example, I did a search as suggested by a previous poster and did NOT find the last three RFQs my agency had done. I did however find an offering from the Navy (Solicitation Number: N6883609T0241) that was styled as an "RFQ" and included a technical evaluation. I am not saying that a tech eval is not allowed for an RFQ, but when we are buying straight commercial commodities based on lowest price--in other words, NOT a FAR Part 15-type procurement--I don't see the need for the extensive instructions. Our last RFQ, for example, simply included a parts list and offerors just provided a price quote for each part. So it just depends on the type of procurement--and that is the beauty of agency discretion and tailoring under the FAR.
  5. I'm saying 1) that I don't see why you would need it in a pure RFQ -- not an RFP -- and 2) that I can't recall ever seeing it done.
  6. I also can't imagine why you would use FAR 52.212-1 for "quoters." It is intended for "offerors" who make offers and are, in fact, bound to hold open those offers for 30 days (FAR 52.212-1©), whereas a "quote" is not, by definition, a legally binding offer (see FAR 13.004). Thus, a "quoter" would be a "vendor" until the Government places an order and the supplier accepts it (see same FAR section). At that point, the vendor/quoter also becomes a "contractor." Hopefully, with an RFQ, you will not need to include all the instructions to offerors found in 52.212-1 because you are not going to have as extensive an evaluation scheme as envisioned in 52.212-2.
  7. I'd suggest you review FAR 9.5 dealing with organizational conflicts of interest (OCI). Definitely you need to get your agency counsel involved. The rules say that the CO has an obligation to identify and mitigate any potential OCIs as early as possible. FAR 9.505 talks about the two types of OCIs. If you have heard Dan Gordon of the GAO talk within the last 3-4 years or kept track of GAO's rulings, an unidentified and/or improperly mitigated OCI is one of the surest ways to see a protest sustained. Good luck. Just remember the language from 9.505: "The exercise of common sense, good judgment and sound discretion is required." Unfortunately, those are qualities that don't get used enough.
  8. I am sure I will be chastised for my comments and my apparent attempt to stifle free and open discourse, but I have to make them anyway. First, Kathleen appears to have concerns over advice she was given by her legal counsel. Has she asked that same counsel for clarification, explanation or a sanity check from a higher-level legal office? As an attorney, I don't expect my clients to blindly accept everything I tell them. I do, however, hope that if they don't agree, don't understand or even just don't like my answer, they will do me the professional courtesy of giving me a chance to explain myself and/or to take a second look. Secondly, as a government attorney, I have some concerns about the sharing of specific, detailed advice given to an agency customer by the agency counsel. When I advise my clients, I am doing so as an attorney representing the AGENCY. The individual contracting officer, program manager, etc., is ALSO representing the AGENCY. There is no attorney-client relationship between the two of us as INDIVIDUALS. Within the bounds of that relationship, what I tell my client is privileged and confidential, meaning I cannot be forced to reveal it to anyone not a part of that attorney-client relationship. However, when it is shared in a public form such as this, that attorney-client privilege is breached and the advice is no longer privileged and confidential and could be disclosed in a forum such as a bid protest (filed by a contractor unhappy over the outcome of Kathleen's acquisition). Don't think unsuccessful offerors don't scour the Internet for comments such as these. I know they do. Finally, it's important to remember that the privilege belongs to the agency, not to the individual. Thus, neither Kathleen nor any other individual below the HCA or similar official has the legal right to reveal specific advice they receive from counsel. Having said all that, I respect and appreciate the value that WIFCON provides as a sounding board. However, as a gov't lawyer, I get paid to be anal-retentive, paranoid and otherwise a wet blanket. So please bear with me.
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