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Everything posted by Seeker

  1. Seeker

    Does MIL-SPEC Constitue Brand Name

    @UGA40 No. Specification of your requirement by MIL-SPEC is not specification by brand name. Brand name specification is specification by brand name. Nor does it violate FAR 11.105, as long as your requirement is valid. By the way: Think! ALL specification limit competition to some extent. The question is whether the specification is unduly restrictive. Here's the key: If anyone challenges your use of the MIL-SPEC as unduly restrictive, you must be able to point out clearly and precisely what your requirement is and why only a product that complies with the MIL-SPEC satisfies that requirement. You must be clear and precise! Keep in mind that many MIL-SPECs are old and out of date inn comparison with current technology, and that a more current specification might not include the very thing that you claim that you absolutely must have. Your technical folks might not be up to date in that regard (although they may insist that they are). In fact, they may have developed their "requirement" based on the MIL-SPEC in question and not on current knowledge and independent anaysis. Be prepared to describe your market research in specific detail to show that you didn't just glom on to the MIL-SPEC without investigation. Magnum Products, Inc. B-265604. For a procurement involving brand name or equal specifications in which the salient characteristics were based on a military specification see Herley Industries, Inc. B-246326.
  2. Z-Mil: That sort of question has been asked for many years: What should a CO do when a regulation is based on a statute and the statute changes? Should the CO act in accordance with the statute or continue to act in accordance with the regulation, regardless of the statute, until the regulation is changed? I think that within the bureaucracy most senior officials would say that the CO must continue to comply with the regulation until issuance of a deviation or publication of a new rule in the Federal Register, because letting COs use their personal judgment would likely result in inconsistencies. That makes senses when the statute requires development of implementation procedures and instructions. But when a regulation just announces the law without imposing special implementation procedures, as is the case of the SAT and the micropurchase threshold, which are merely definitions, it seems silly to continue to apply the old thresholds pending issuance of a "deviation" or an interim or final change to the FAR. My own inclination in this case would be to act in accordance with the statute as soon as the statute takes effect, regardless of the regulation, but management would probably shut me down.
  3. Thank you, Deaner, very much.
  4. Can a T&M order against a GSA FSS contract be incrementally funded?
  5. Retreadfed, You don't know the answer to my question, do you? If not, why post anything? Yes, I have read those FAR sections, and your response boils down to nothing more than "It's okay if it's okay." What's the point in that? The same goes for C Culham's response. I am researching GSA's website. But if anyone knows the rules for GSA FSS contracts and knows the answer to my question about incremental funding, which is yes or no, then please tell me and provide an information source. I'll appreciate it.
  6. I have read FAR Part 32 many times. The reason I asked the question is because I read Dream Management, Inc. v. Department of Homeland Security, Civilian Board of Contract Appeals decision 5517 from this past April, in which I came across this: "Here, the plain language of the task order indicated that it is a time and materials task order placed against an FSS contract. The task order specifically stated that “[t]his is an incrementally funded, Time & Materials, Task Order against the contractor's GSA schedule contract identified above.” The RFQ also indicated that a time and materials contract would be awarded. The task order incorporated the Time and Materials Payments clause and met the requirements of FAR 8.404." I looked at the current GSA solicitation for the services in question and did not find FAR 52.232-22 or any other incremental funding clause. I never heard of incremental funding being used in a contract for commercial items or in a GSA FSS task order. The sources that you referred me to don't explain how this could be. Did Homeland Security break the rules or is this something that can be done legitimately? And yes I looked at the DHS FAR supplement and it does not say anything about incremental funding.
  7. FAR 7.503(c)(12)(ii) says a contractor can't be a "voting member" of a source selection board. What does "voting member" mean? FAR Part 15 does not mention voting members. There is nothing about them in DFARS. The DOD source selection procedures memo mentions voting members of SSAC and SSEB, but does not say what they vote for. So what do voting members vote for? Is the source selection decision made by vote?
  8. Mr. Hoffman, I downloaded the Army document you linked me to and searched for the words "vote" and "voting." Vote does not appear in the document and voting appears only once as follows: "However, they may not be voting members of the SST or participate in rating proposals or recommending a selection." The chapter to which you referred me makes no mention of voting. However it does say this Meeting of the minds does not sound like voting. How was that document supposed to help me?
  9. Thank you, Retreaded. But that still does not address my questions. But I do have a new one. Can the SSA be a panel of people or must it by law or regulation be one person?
  10. Mr. Hoffman you speak so authoritatively that I'd believe you if I didn't read things. I asked if voting was majority rule. You didn't answer so I have no idea what you mean by voting, and I really don't care about what Merriam Webster has to say. I haven't met him. Your "It can be" is useless. I checked out: http://www.dailykos.com/story/2011/10/7/1023999/- http://www.differencebetween.net/miscellaneous/politics/difference-between-consensus-and-majority-rule/ https://en.wikipedia.org/wiki/Consensus_decision-making https://theparticipationcompany.com/2016/11/voting-vs-a-consensus-decision-making-process/ https://treegroup.info/topics/comparison-chart.pdf http://governing.ca/Consensus_Parliamentary.html http://randomactsofleadership.com/why-consensus-doesnt-work/ and many many more comparisons between voting and consensus. So please stop lecturing. I suspect that I know more about the difference than you do. You have not answered my question and if you can't answer my question why bother? I asked because I honestly want to know why there is so much talk of consensus in source selection and yet FAR 7.503 speaks of voting with saying about what or how. I can't find any explanation in any official government publications. Thanks anyway. But I don't want to be talked down to.
  11. One more question: Do you know what items were procured?
  12. What do you mean by "lot actuals"? Do you mean actual costs? Totals, unit? Please be specific and I'll try to find the decision for you. Was the case about defective pricing or something else?
  13. Desparado understands what I'm asking. Do they vote on whether a proposal is acceptable? Do they vote on whether something is a strength? A weakness? A deficiency? Do they vote on factor ratings? Do they vote on tradeoff results? Do they vote on offeror rankings? Do they vote on who is in and out of the competitive range? Do they vote on discussion questions? Do they vote about whether or not to seek clarification? Do they vote on recommendations to a decision maker? Do they vote on the decision itself? All of the above? Are votes bare majority rule? Two-thirds? Does the team chairperson have a veto? Does the contracting officer? If there's voting, why is there so much talk about consensus? The outcome of a vote is not a consensus. Wouldn't some part of the "team" win and some part lose? I looked at some GAO decisions that mention voting members, but I couldn't find one that said what they voted on.
  14. Assume that I know nothing other than whats in FAR, DFARS and the DOD procedures which is why I'm asking.
  15. Thanks, but that doesn't answer my question.
  16. Seeker

    Unreasonable Price

    Not necessarily. FAR says "In some agencies, a relatively small number of high level officials are designated contracting officers solely by virtue of their positions. Contracting officers below the level of a head of a contracting activity shall be selected and appointed under 1.603." I don't think a higher level official has to be a contracting officer in order to be empowered to authorize a contracting officer to make an award despite an unreasonable price. Is the DOD director of pricing a contracting officer? I'm not going to continue in this topic. Some people demand proof in order to avoid the logic. What would the proof be? There wouldn't be case law. Is the absence of express authorization proof that something cannot be done? There is no proof of anything on either side. The only basis for interpreting FAR 15.405(d) is a combination of logic and common sense. Some of the thinking here is not practical and is very frustrating to read. I'm with Jamal Valentine's instructors, trainers, leaders, contract specialists and contracting officers. Their thinking is consistent with my training and experience.
  17. Seeker

    Unreasonable Price

    Why do you think FAR 15.405(d) tells COs to refer the matter to higher authority? Is it just so higher authority can say, Yes, the price is unreasonable or No, the price is reasonable? Or is it to authorize purchase even though the price is too high. It is astonishing to read people say that at a level above the contracting officer a government official cannot authorize purchase at an unreasonable price even if there is a valid need, no other choice and no other source. Prepare a memo explaining the situation and what will be done to avoid having to be in the same position in the future then get on with the purchase. Really, what if you just have to have it? What if mission or lives depend upon it and the only source won't reduce its price? To think that higher authority cannot determine that the government will pay the price demanded though unreasonable is to render higher authority helpless in the face of dire need. When the government wanted to avoid the circumstance in the past it resorted to price controls and price renegotiation. We no longer have those laws. The government ordinarily doesn't tell people what they can charge. And it can't tell people in foreign countries what they can charge. What would you prefer, a lie that a price is fair and reasonable when it's not or a memo to file saying we got stuck this time but we're going to take steps to avoid getting stuck in the future? Is this kind of thinking common out in contracting offices?
  18. Seeker

    Increasing Rights in Software--> In-scope Change?

    There is no scope issue as I already explained. If the software is noncommercial use the authority in 252.2027-7014(b)(4) on sf 30.
  19. Seeker

    Increasing Rights in Software--> In-scope Change?

    There is no scope issue. The mod will not acquire supplies, services or construction. It will obtain additional rights to software (property) you already have. Thus it will not be an acquisition as defined in FAR 2.101. CICA applies to acquisitions of contracts for supplies, services and construction. FAR 6.001 and 6.002. Thus CICA does not apply. You do not need a J&A. What rights clause is in the contract? DFARS 252.227-7014? If so did you read (b)(4)?
  20. Seeker

    Superior knowledge

    Cibinic, Administration of Government Contracts, 5th edition, chapter 3 Risk Allocation, B. Nondisclosures. Pages 241 - 251. "Government liability for nondisclosure of information is based on an implied duty to disclose information that is vitaal for the preparation of estimates or for contract performance."
  21. Seeker

    Estimated Delivery Order

    What makes your legal think an IDIQ against an IDIQ is illegal? Ask him to show you where it says its a no-no. BDOs were discussed at Ask A Professor in 2007.
  22. Seeker

    Estimated Delivery Order

    Issue a blanket delivery order. The BDO obligates funds but does not order or state quantities. The contracting officer signs it. It tells the contractor that the customer is authorized to place oral or written calls up to the value of the BDO. No pricing is involved. Put an expiration date on it so you do not violate the bona fide needs rule. Authorize someone in your customer's office in writing to act as an ordering officer, with authority expiring on the same date as the BDO. Provide a copy of the authorization to the contractor. Tell the ordering officer to place calls against the BDO as needed, like on a BPA, and to keep a log. This is a very old and legitimate technique. I'm surprised no one has mentioned it.
  23. Seeker

    Ratification Authority

    Reflectone v. Dalton, U.S. Court of Appeals for the Federal Circuit, July 26, 1995, 93-1373. If an REA meets the requirements for a claim it is an REA that is a claim.