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physiocrat

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  1. So, a single award GSA BPA is limited to one year but can have up to 4 option periods. Remarkable considering a BPA is not a contract because it lacks consideration (established law) but presumably the Council wants us to use unilateral option clauses to exercise these hypotheical option periods on a non-binding agreement? Nonsense. I think the FAR council, rather than me, needs to create a deviation. In the interim, I will ignore the option requirement for GSA BPAs as I ignore Obama's executive orders also, after all what is the penalty for violating an executive order, an IRS audit? Big deal, not a problem. Oh, and Vern, my last trip to Gettysburg was stellar but didn't meet a lot of fancy women as most folks are there on vacaiton with family and friends rather than romance but I'm still looking for the wify in Kansas City. Tnx. no comments are requested, think about it on your own.
  2. Roger that InNeedofWisdom: You should think about things rather than "feel". Your Government is the "conspiracy" as Cicero wrote long ago - "A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. The traitor is the plague." I surmise this doesn't mean anything to you so God bless and history will tell the tale better than I can.
  3. Bob, this is remotely related to contracting and Vern's EO example, not politics, contrary to Don's myopic view of the Civil War or the procurement of a wife, inter alia - OK, inadvertently, an Administrator provided the rationale why persons traveling from Ebola, at risk countries should not be banned from entering or traveling via airline transportation to the U.S. - If we banned all flights from Ebola, at risk countries or connecting flights from Europe (as we have no direct routes), then the Ebola carriers would resort to infiltrating our southwest border which is not protected or even monitored to any exclusionary or competent degree. By allowing Ebola carriers to fly into this country, we can at least perform cursory inspections such as questions or temperature taking, none of which will protect you or the entire country from being infected. Incompetence or planned? I think this has been planned but how would you write the contract? (Non sequitor)
  4. Funny or tragic? Part I

    Yes, I am in the correct thread, I would like to sue the named individuals who wrote the BN document and I am contemplating how. It ain't easy but possible.
  5. Funny or tragic? Part I

    Remarkable, it tires me to comment in detail so I won't. I have to do more research on the False Claims Act, public disclosure bars and all that nonsense but my instinct is that if a relator can prevail in a case where a contractor substitutes inferior personnel under the required, contractual labor category, then certainly, an action is warranted where unqualifed Government employees submit a timesheet for payment! Yep, proving "knowingly" or scienter is a problem but I can certainly try.
  6. Leading question maybe, but in the case of Vern's sample EO, I think that the President should issue another EO under the IEEPA to block the transaction of persons from Ebola at risk countries from entering the U.S. as it is a matter of National Security or common sense. The failure to do so is a national security risk unless the outbreak has been planned and the fix is already in, sort of speak.
  7. Considering the following, I'd be hard pressed to conclude that the President is engaged in lawmaking rather than executing the law which is within his constitutional powers/authority. In the United States Code, the IEEPA is Title 50, §§1701-1707.[1] The IEEPA authorizes the president to declare the existence of an "unusual and extraordinary threat... to the national security, foreign policy, or economy of the United States" that originates "in whole or substantial part outside the United States."[2] It further authorizes the president, after such a declaration, to block transactions and freeze assets to deal with the threat.[3] In the event of an actual attack on the United States, the president can also confiscate property connected with a country, group, or person that aided in the attack.[4] The IEEPA falls under the provisions of the National Emergencies Act (NEA), which means that an emergency declared under the act must be renewed annually to remain in effect, and can be terminated by Congressional resolution.
  8. The preamble states - ...authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 5 of the United Nations Participation Act (22 U.S.C. 287c) (UNPA), and section 301 of title 3, United States Code, Short answer, I'll have to read EO 13413 to make sense of the amendments. There is no Constitutional authority cited, but maybe he thinks he is executing IEEPA or UNPA which I would have to read also. If the rationale for exercising the authority is similar to that reflected in the EO above in my comment, then again I would confidently conclude that the subject EO is beyond the President's authority. I'll continue reading.
  9. Understood Vern. I rarely look to or rely on the Supreme Court for binding precedents but it is clear to me at least, that under the Constitution as written, the President has no authority to make laws (force and effect, etc.,) under any circumstance.
  10. Civ_1102 – I’m not a mind reader (or, a good guesser). In response to my comment, what exactly is your point that a MAS BPA and a FAR 13 BPA have nothing to do with each other or did you intend to start a new topic on the differences? My point is straightforward - “Option” means a unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract. One cannot exercise this “unilateral right” on a non-binding agreement such as a BPA since a BPA (including a BPA established under FAR 8 or FAR 13) is not a contract because it lacks consideration. Consequently, the unilateral right is unenforceable in any competent court of jurisdiction. Therefore, the FAR Council is demonstrably incompetent for writing a “deviation” to the FAR which conflicts with established case law, common sense and its own definition of “option” and “contract” (FAR 2). [notice, the FAR Council did not prescribe any traditional option clauses but refers us to (e)(1) to document the file; what provisions or clauses would you put in the solicitation or the BPA?] Metteec - Executive orders do NOT have the force and effect of law. At any rate and for example, I would ignore Executive Order 13658 based on the same rationale set forth by ABC, Inc. in their comments to the proposed rule (footnotes omitted) - The Proposed Rule Exceeds the Executive Branch’s Constitutional and Statutory Authority. Federal minimum wages on government contracts in the construction industry have long been established by acts of Congress. The DBA, 40 U.S.C. § 3142 (B ), states: “The minimum wages shall be based on the wages the Secretary of Labor determines to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the civil subdivision of the State in which the work is to be performed, or in the District of Columbia if the work is to be performed there.” Pursuant to this statute, the Department has created an elaborate regulatory scheme for determining prevailing wage rates in the construction industry. Congress also has established a regime for the calculation of minimum wages on non-construction service contracts covered by the SCA. That law states at 41 U.S. § 6703: “The contract and bid specification shall contain a provision specifying the minimum wage to be paid to each class of service employee engaged in the performance of the contract or any subcontract, as determined by the Secretary or the Secretary’s authorized representative, in accordance with prevailing rates in the locality, or, where a collective-bargaining agreement covers the service employees, in accordance with the rates provided for in the agreement, including prospective wage increases provided for in the agreement as a result of arm’s length negotiations.” Section 6704 of the SCA further incorporates by reference the minimum wage provision of the FLSA, 29 U.S.C. § 206, which specifies that the minimum wage currently shall be $7.25 per hour for every employee engaged in commerce. By the plain language of these statutes, Congress has established as a matter of law the minimum wages that must be paid by federal contractors. The NPRM nevertheless asserts that the minimum wage requirements of the Executive Order are “separate and distinct legal obligations from the prevailing wage requirements of the SCA and the DBA.”2 This assertion confirms that the President and the Department are creating a new minimum wage requirement in derogation of Congressional intent. As a result, in a limited but significant number of instances under the DBA and SCA, wage rates that the Department has previously found to be the minimum wages “prevailing” in local jurisdictions according to the dictates of Congress will under the proposed Rule no longer be deemed to be the minimum wage. Neither the President nor the Department has any authority to override acts of Congress by setting a new minimum wage that contractors must pay, in a manner that is plainly inconsistent with the statutes that already govern this issue. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson concurring) (“In instances where presidential action is incompatible with the express or implied will of Congress, the power of the President is at its minimum….”); Chamber of Commerce v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996) (striking down executive order conflicting with provisions of the National Labor Relations Act). The sole authority for the executive order or the proposed rule cited by either the President or the NPRM is the Federal Property and Administrative Services Act of 1949 (FPASA, or the Procurement Act), 40 U.S.C. §§ 101, 121(a), cited by the President at 79 Fed. Reg. 9851 and in the NPRM at 79 Fed. Reg. 34570. The FPASA authorizes the President to “prescribe policies and directives” that [he] considers necessary to carry out the statutory purposes of ensuring “economical and efficient” government procurement and administration of government property. In the 65-year history of the FPASA, no President has ever before attempted to use this law as authority to establish a minimum wage for government contractors, and certainly no President has ever done so in direct violation of acts of Congress. In any event, the Procurement Act’s authorization to achieve greater economy or efficiency cannot truthfully be said to authorize the President or the Department to increase the government’s costs, as will be the most likely result of increasing the minimum wages that government contractors must pay their employees. The D.C. Circuit considered and rejected a similar claim of Presidential authority to impose new obligations on government contractors under the FPASA in Chamber of Commerce v. Reich, 74 F. 3d at 1333. The court observed that the authority vested in the President under the FPASA is limited: The Procurement Act was designed to address broad concerns quite different from the more focused question of the [issue before the court]. The text of the Procurement Act and its legislative history indicate that Congress was troubled by the absence of central management that could coordinate the entire government's procurement activities in an efficient and economical manner. The legislative history is replete with references for the need to have an "efficient, businesslike system of property management." S.REP. No. 475, 81st Cong., 1st Sess. 1 (1949); see also H.R.REP. No. 670, 81st Cong. 1st Sess. 2 (1949). As a result, the Reich court found that the FPASA provided no authority for the President to dictate to government contractors as to matters on which Congress has already spoken. In the present circumstance, as in Reich, Congress has already made the judgment that the government will achieve its greatest economy and efficiency by requiring government contractors to pay only the minimum wages specified by the DBA, SCA and FLSA. Reasonable minds may differ as to whether Congress has set the minimum wage at the most economical or efficient levels for government contractors, but once Congress has made the political judgment necessary to set the minimum wage and has acted upon it in the form of legislation, the President and the Department are required by the Constitution to faithfully execute the laws so enacted by Congress. Finally, whereas the Department has sometimes (though not always) declared that legal challenges to the President’s authority to issue an Executive Order are “beyond its purview,”7 such a response is inappropriate here. Section 4 of the Executive Order 13658 specifically instructs the Department to issue regulations implementing the Order only “to the extent permitted by law and consistent with the requirements of the Federal Property and Administrative Services Act” … “including providing exclusions from the requirements set forth in this order where appropriate.” Section 4 of the Order further instructs the Department to “incorporate existing definitions, procedures, remedies, and enforcement processes” under the FLSA, SCA and DBA. These instructions confer upon the Department all the discretion necessary to decline to enforce the Executive Order in a manner that is inconsistent with Congressional authority (i.e., by declining to set a new minimum wage for any employee covered by the DBA, SCA or FLSA that differs from the Congressionally mandated minimum wages under the foregoing statutes). For each of these reasons, the NPRM should be withdrawn or substantially modified to avoid imposing any new minimum wage that is different from the minimum wages dictated by Congress.
  11. Check out this transcript from a FAI video tutorial on Protests entitled ALS: Strategies to Successfully Prevent and Defend Bid Protests http://www.fai.gov/drupal/training/bid-protests-transcript 8/5/14 NG: And following the solicitation can mean several things, as described in this chart. It means following the evaluation scheme. You establish an evaluation methodology and scheme in your solicitaiton, and you apply that accurately to all offerors, weigh the importance of the factors stated, evaluate price in the manner described, and utilize the stated basis for award -- best value or low price. These days, best value is very much in vogue. I had a recent example where I was talking to some contracting staff and they actually decided to go with a low price technically acceptable award, but they kept saying that they were going to do low-price technically acceptable in order to achieve best value, and I kept asking them, "why are you saying that when you are doing a low-price, not best value?", and it is a little confusing, but best value had become so ingrained in their brains as the main thing to do that it took a little bit of discussion with them to see the little problem with that, but we worked it out fortunately because they came and talked to their lawyers in advance. I think NG should be fired immediately for failing to comprehend the meaning of best value as it is written in FAR 2 and FAR 15 or at a minimum for failure to read. On the other hand maybe we should promote him to the Administrator for Federal Procurement Policy. What is the greater good? I certainly can't rest easy knowing that he may be advising actual clients in the private sector so let's keep him in the public sector where he can do the least damage. I was remiss in not congratulating the contract folks, so congratulations, but what was the dynamic, hubris on the part of the attorney who was wrong but saw the little problem and resolved it because they talked to their lawyers in advance? I guess these folks wonder the same things I wonder, mainly why is he employed, and why would I ever need to contact him for procurement advice? (other than his access to relevant databases such as Westlaw) though I suspect he would mess that up also. Compared to Miss Taylor's transgressions at the VA, I'd fire NG easy. What do you think? I'll draft the complaint.
  12. Speaking of Incompetence...

    Joel, of course, given the chance, I would fire Mr. Gansler immediately though it appears his career is beyond that point. I suppose the only remedy against Mr. Gansler would be in the arena of the False Claims Act or similar claims though hardly probable, a case of 1st impression. I take it that you disagree with the rewrite? I think it makes sense but happy to hear different, reasoned opinions.
  13. Scandal at the Department of Veterans Affairs

    I skimmed thru the 82 page report and I like the writer, wow, it must have been a challenge to record the ongoings and he/she did an exceptional job of recording the events of the investigation and I like reading silly human stories and watching movies. The report was not written on a professional lawyer level and quotes are hard to establish but overall I enjoyed reading the report. One charge submited to Justice didn't stick, the wine declaration seems to be over-reaching which belies their credibility, the Contract Specialist was fairly dumb in his price evaluation and so what. The story even revealed marital transgressions, wow, a good read in my opinion.
  14. Experience is the teacher of all things.

    I think the first sentence flows nicely Vern a new sentence is not required but in Emptor's case, the misplaced comma is definitely a grammatical error, not subject to debate according to any rules I am aware of. I suppose you are just defending a friend and I respect that. I am shocked that you think ignoring neutral past performance against superior past performance when conducting COMPARISONS is "proper" when the regulation says no such thing, or maybe just his interpretation? I love you anywho Vern. Of course, recognize your source. I posited that the Civil War and the acquisition of a wife has everything to do with procurement principles but I was banned for a time, myopic views prevailed, and so it is, who am I to disagree? Tnx.
  15. Experience is the teacher of all things.

    Well, nonsense, unless this is another educational lesson, yes, there is a difference between past performance and experience but apsofacto still believes your recommendation "not to evaluate past performance" when an offeror has none, ceteris paribus. I already described the reasons why this approach is not correct. By the way, a comma should be placed after "past performance" not after "separate from,". Based on the content of Emptor's articles, recommend ignoring. Tnx.
  16. Is “Neutral” Neutral?

    That is a unique interpretation of the article Aposfaco, as tounge in cheek sort of analysis. The 1st article was not tounge in cheek, just advisory. And if this article was tounge in cheek or an educational lesson, well that should have been stated at the begining. You have provided a unique out for the author but his article defeats the purpose of communication and his inclusion as an "expert" at wifcon.
  17. Is “Neutral” Neutral?

    Not at all, reread - "So, the only solution is to ignore past performance in any head-to-head comparison when one of the offerors does not have a record of relevant past performance or for whom information on past performance is not available. That is the only way to ensure they are not evaluated favorably or unfavorably." It is nonsensical to ignore an offeror's past performance for reasons I hope I adequately summarized above. If not, let me know.
  18. Is “Neutral” Neutral?

    I enjoyed your article, however I disagree with your conclusion and here is why- You have incorrectly read into the regulation a “comparison” to other offerors standard and the regulation says no such thing. Wifcon readers may be misled by your article, and arrive at a nonsensical or illogical outcome (past performance must me a wash when comparing an offeror’s proposal who has no relevant past performance) when that is not the case and probably why GAO doesn’t agree. Rather, the regulation means, in context, that an offeror with no past performance, administratively should not be assigned a weakness or significant weakness when assessing that proposal. Now, when conducting COMPARISONS or source selection, you are not treating the offeror with no past performance more favorably or less favorably per se, you are treating the offeror who has bonified, relevant and better past performance more favorably, all things equal. Please be more careful in your analysis as young wifcon readers sometimes take things as "gospel" from their peers without thinking and this instance or your article is not a mere disagreement or matter of interpretation, it's just wrong, for lack of a better term.
  19. Check out this solicitation in your spare time, at least 100 things wrong. Understand you don't have the time but as an example A.1 CONTRACT TYPE (OCT 2008) This is a Hybrid of CPFF and FFP contract, order, or BPA. Remarkable, as a consequence, I will take VA Bar exam in July rather than be subject to incompetence at GS-15 and higher though I am the unemployed, the problem. Tnx. Vern, already passed the MPRE, do you have any projects? I am an expert in steam cleaning carpets https://www.fbo.gov/...b=core&_cview=1
  20. Increase of Ceiling on CPFF Task Order

    As always, well said Vern. I've got the same problem CPFF though the requirement, maintenance and repair of real property does not fit into either the term or completion model (i.e. wrong contract type) and, of course, no mention of the LOE was included in the award document, etc., and now they want to increase the total estimated cost by 200% to accomplish additional work that they say is "within the scope" as they define the term. As a contractor, I'm looking for solutions but doesn't seem likely without being extremely creative. Anywho, do you have any more recent cites, shepardized, etc. that I can review? I don't have access to Westlaw. I can pay you, as consideration, by your acceptance of two (2) kittens I am fostering that will enrich your life beyond merely sentimental value if you could simply click on the Westlaw shepardize button and provide your analysis. Also, I still maintain that the acquisition of a wife is no different than procuring services as your own Source Selection Authority and a BPA, clearly is not a contract, but I guess I'll be banned again for mentioning kittens, wife and George Washington as limited minds think these these things are not related to contracting or not appropriate items for discussion in this forum. Tnx.
  21. Incompetence

    Oh my Vern and Don, So, basic requirement for utility services FAR 41, obtained the GSA area wide contract and authorization form but the utility POC/signatory contact information was invalid. To Mr. GSA guy: Can you provide me with the current POC/Signatory? Response: Well, the POC sometimes changes and the utility doesn't always provide us with the update but here is the utility's customer service number. Anything wrong with the response? Unbelievable.
  22. Incompetence

    Agreed Vern, utility contracts are a pain and I'll do my best to cut the GSA guy a break but to make the individual agency users of the GSA area wide contracts obtain current POC/signatory information rather than requiring one GSA person to ensure that the information is up to date is certainly inefficient and evidence of poor contract administration. At any rate, I just told Mr. GSA guy (and he's been fighting me and peppering me with incoherent emails so I'm pretty sure he doesn't want to do any work ), well let me know if my request (to update Sections 16.2 of the contract) falls outside the scope of your customer service/contract administration responsibilities. I'll leave it at that per your advice, but keep up the good work and Merry Christmas!! Sincerely, Physiocrat
  23. [...] the CAA and the DAR council have no clue, see http://www.regulations.gov/#!documentD...FRDOC_0001-0476. Specifically, the interim rule speaks in terms of exercising options in BPAs!!! These are the leaders and experts in acquisition procedures? Clearly, no need to repeat what is wrong with the idea but briefly: 1) BPAs are not contracts which simply means they are not enforceable in a court of law 2) FAR Option clauses refer to contracts 3) An option is a unilateral right (uncommon in UCC) to extend the period of performance 4) Just dumb, practically, who in their right mind would attempt to include option periods in a BPA? Got it, try to bind a contractor unilaterally to an "option period" under a vehicle that is not binding under an agreement that can be canceled at any time, no consideration and proceed to establish FAR 17 requirements including funds are available, etc? Shall I use 52.217-9? 5) Ridiculous. I'll be submitting comments to this interim proposed rule, make no mistake though I should probably spend more time finding a woman though I do have several prospects but the acquisition is all very annoying.
  24. Works well [ . . . ], like it Don, cite the cases and you remark do you believe what GAO says? Very good; wasn't debating you just inquiring what you think is the consideration for establishing a GSA BPA. I too do not agree with GAO in all instances but for the most part, they are right on. GAO's jurisdiction of review of GSA task orders, in fact rests on the idea that BPAs are not contracts. Again Don, what do you think is the consideration for entering into a GSA BPA?
  25. Don, housework is housework, I don't like it either just trying to interject a personal touch so you know me a little better. I see where you are going; both are termed BPAs with different rules, there still exists no consideration unlike IDIQs not even an exchange for a promise, therefore no contract exists. Curious, what makes you think that the plethora of cases would not apply to GSA BPAs or what do you believe is the consideration for entering into any BPA?
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