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gfsullivan

What laws apply to the US. Mint?

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If federal procurement regulations and laws do not apply to the Mint, what rules do? How can a contractor know what rights it has and what standards and rules the Mint must follow when deciding whether to respond to a solicitation from the US Mint? The same question applies regarding potential claims for contractors performing a contract with the US Mint. The US Mint has not made its acquisition rules and policies publicly available.

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6 hours ago, gfsullivan said:

If federal procurement regulations and laws do not apply to the Mint, what rules do?

None.

The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public.

The first sentence of FAR 1.101 is a lie.

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8 hours ago, gfsullivan said:

If federal procurement regulations and laws do not apply to the Mint, what rules do?

1 hour ago, Vern Edwards said:

None.

In my view the response of "None" is very misleading.  While the OP has raised one question the OP has also made a statement that is mis-leading.  That statement being -

8 hours ago, gfsullivan said:

 The US Mint has not made its acquisition rules and policies publicly available.

There is Federal law applicable to the U.S. Mint and its acquisition and that is 31 U.S.C. § 5136, which states clearly - Provided further, That provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations. 

So while the Federal Acquisition Regulation System does apply the requirements of the statutory language of Numismatic Public Enterprise Fund (31 USC 5134), which is a non-appropriated fund,  places the responsibility on the Department of Treasury to put into place policy for the U.S. Mint to operate within with regard to the Fund.   

As noted the DTAP (see reference above)  has been published by the Treasury Department and is applicable to the U.S. Mint and can be found publically available here - https://www.treasury.gov/about/organizational-structure/offices/Mgt/Pages/ProcurementPolicy-Regulations.aspx.  

Quoted from the DTAP's Forward -

"The DTAP applies to all acquisitions of supplies and services involving the obligation of appropriated or non-appropriated funds."

FAR 1.101 might be misleading yet the entirety of FAR 1. is clear, most especially, FAR 1.104 noting further that  FAR part 2 defines an "Acquisition" as“   "the acquiring by contract with appropriated funds"  The U.S. Mint does not operate with appropriated funds but rather through the Fund .   

 

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C Culham:

14 hours ago, Vern Edwards said:

See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017.

Note the date on that decision. From the decision:

Quote

DIGEST

The United States Mint, a federal agency within the Department of the Treasury, is not subject to the Government Accountability Office's bid protest jurisdiction under the Competition in Contracting Act of 1984, because the Mint is statutorily exempt from all federal procurement laws and regulations.
 
*     *     *

In 1996, however, Congress established the United States Mint Public Enterprise Fund (USMPEF) to finance the programs and operations of the Mint. See Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub L. No. 104–52, §522 (1995) (codified as amended at 31 U.S.C. §5136). Of note, the establishing legislation for the USMPEF included the following proviso: “Provided further, That provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations.” 31 U.S.C. §5136.

According to the Forward in the DTAP:

Quote

The DTAP is a supplement to the Department of the Treasury Acquisition Regulation (DTAR), the latest version of which is codified at 48 CFR Chapter 10, the FAR and other agency regulation and statutory requirements.

According to Department of the Treasury Acquisition Regulation (DTAR) 1001.104, Applicability:

Quote

The DTAR applies to all acquisitions of supplies and services, which obligate appropriated funds. For acquisitions made from non-appropriated funds, the Senior Procurement Executive will determine the rules and procedures that will apply. The DTAR does not apply to the acquisitions of the U.S. Mint.

The DTAP contains no general statement of its applicability, and It mentions the U.S. Mint in only seven places, none of which specifies procedures to be followed by the Mint, but rather states authorities of officials of the Mint, which authorities are not addressed by the statute. Nowhere could I find any statement that the DTAP prescribes procurement procedures with which the Mint must comply. If you have found such, please cite or quote the passage.

The OP asked:

21 hours ago, gfsullivan said:

If federal procurement regulations and laws do not apply to the Mint, what rules do? How can a contractor know what rights it has and what standards and rules the Mint must follow when deciding whether to respond to a solicitation from the US Mint? The same question applies regarding potential claims for contractors performing a contract with the US Mint. The US Mint has not made its acquisition rules and policies publicly available.

I answered:

Quote

None.

The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public.

I didn't say just "None." You edited your quote of me to make it look that way. I think my response was absolutely correct, and I do not know why you say it was "very misleading."

Let me know if you find any Mint publication of its acquisition procedures.

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Vern Edwards -

What does the GAO decision have to do with it?  I already provided that the U.S. Mint is not subject to the FAR.  I guess you didn't believe me but thanks for supporting that the Mint is not subject to the FAR.  

Again  I provided that Federal law states that - "Provided further, That provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations."    It is clear from this citation of the CFR that the FAR and TDAR as related to the FAR are not imperative to the US Mint .  I repeat however that it is clear that DTAP  as a policy does apply to the US Mint  as the forward to the document says it does because the US Mint uses non-appropriated funds.  Until you provide a specific statement that the DTAP does not apply I stand by my conclusion that it does and as such that DTAP is published for the public to review. 

Further -

15 hours ago, Vern Edwards said:

They have published no rules of their own in the Federal Register.

Yep that is correct and the DTAP even acknowledges that the DTAP is not codified yet is binding onTreasury bureaus.  DTAP quote  (emphasis added)-

"The contents of the DTAP are intended to provide binding internal, non-codified acquisition policy and procedure to various Treasury procurement bureaus."

The OP also asked this question -

22 hours ago, gfsullivan said:

How can a contractor know what rights it has and what standards and rules the Mint must follow when deciding whether to respond to a solicitation from the US Mint?

The answer is two fold - read the solicitations that the US Mint posts on FBO and ask the contracting specialist at the US Mint.  

2 hours ago, Vern Edwards said:

 I didn't say just "None." You edited your quote of me to make it look that way.

Well you did say "None" and your post still shows it.   This is notwithstanding that you have edited the post anyway after I posted.   I am not going to play this stupid game again as that is your routine.   My references are not misleading they are fact, my conclusions are based on the facts, and my posts are unedited.  

Let me know when you find a written official affirmation that the DTAP does not apply to the US Mint and then I might reconsider until then post away, edit away.

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C Culham:

What a pile of lard.

I did not respond to his question about how a contractor can know its rights and what standards and rules the Mint must follow. I responded to the question:

On 1/14/2018 at 9:48 AM, gfsullivan said:

If federal procurement regulations and laws do not apply to the Mint, what rules do?

 "None" is the correct answer. If you think it's not, then name a procurement law or regulation that does.

I also said:

17 hours ago, Vern Edwards said:

They probably have internal procedures. If they have, they apparently are not making them available to the public.

As for your last remark:

1 hour ago, C Culham said:

Let me know when you find a written official affirmation that the DTAP does not apply to the US Mint and then I might reconsider until then post away, edit away.

That's just plain stupid. Since the DTAP says it supplements the DTAR, and since the DTAR says that it does not apply to the Mint, and since the DTAP does not say that it does, then even you should be able to reach the unavoidable conclusion.

If all you had say was:

1 hour ago, C Culham said:

read the solicitations that the US Mint posts on FBO and ask the contracting specialist at the US Mint. 

you could have just said it and left me out of it without accusing me of having been "very misleading." You have needlessly provoked a bull**** disagreement.

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Vern Edwards -

17 minutes ago, Vern Edwards said:

You have needlessly provoked a bull**** disagreement.

Nope.  You did and continue to do so.   Why?  Heck I do not know.   

28 minutes ago, Vern Edwards said:

 "None" is the correct answer.

 None, really?    Rule  (emphasis added) - "1. An established standard, guide, or regulation; a principle or regulation set up by authority, prescribing or directing action or forbearance; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics"  (Blacks Online Dictionary)     There are no regulations but there are "rules" its the DTAP, it may be stupid, they are available to the public yet it is the rule until you convince me otherwise. 

So you are piling the lard not me.  Feel free to keep it up and we will measure piles when you are done!

 

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I don't know what has gotten into you, and I don't know what I said that has provoked you. The DTAR and DTAP speak for themselves. They do not apply to the Mint. I wonder if you have scanned the DTAP to see what it says.

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1 hour ago, Vern Edwards said:

I don't know what has gotten into you, and I don't know what I said that has provoked you.

Absolutely nothing.  I might ask the same back to you but I won't.   Again I only offering my research that supports that the DTAP does apply to the Mint.  I did scan the DTAP and it says this "The DTAP applies to all acquisitions of supplies and services involving the obligation of appropriated or non-appropriated funds."  Again I will retract if it is found that my conclusion that DTAP applies to procurements of the US Mint is wrong.   That easy!  

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50 minutes ago, C Culham said:

Again I will retract if it is found that my conclusion that DTAP applies to procurements of the US Mint is wrong.   That easy!  

I agree that it's easy. The DTAR says it does not apply to the Mint. The DTAP says it supplements the DTAR. If the DTAR does not apply to the Mind, and if the DTAP supplements the DTAR, it follows that the DTAP does not apply to the Mint. Why is that conclusion in error?

 

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One additional thought. Let's suppose, for the sake of discussion, that the DTAP does apply to the Mint. In order for a procurement "rule" to apply to companies doing business with an agency and to be a basis for litigation, it must be published in the Federal Register. 41 USC § 1707. A rule must be published only if it

Quote

(A) relates to the expenditure of appropriated funds; and

(B)(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

(ii) has a significant cost or administrative impact on contractors or offerors.

According to the DTAP:

Quote

The contents of the DTAP are intended to provide binding internal, non-codified acquisition policy and procedure to various Treasury procurement bureaus. The scope includes delegations of authority, assignments of responsibilities, work-flow procedures, internal reporting requirements, and all other procurement policies and procedures that facilitate the processing of Treasury acquisitions. 

In short, it doesn't meet all the criteria for publication in the Federal Register as it relates to the MInt, because the Mint does not spend appropriated funds and because it doesn't have a significant impact beyond the internal operating procedures of the agency.

The OP asked:

On 1/14/2018 at 9:48 AM, gfsullivan said:

How can a contractor know what rights it has and what standards and rules the Mint must follow when deciding whether to respond to a solicitation from the US Mint?

Well, a contractor cannot learn that by reading the DTAP, because it does not apply to the public. It is one of those internal procedures I mentioned in my first post. So, reading the DTAP will not teach the OP anything about what rights it has and rules that the Mint must follow that impact those rights. And, in fact, a reading of the DTAP shows that it pertains strictly to internal processes that don't have "a significant effect beyond the internal operating procedures of the agency" or "a significant cost or administrative impact on contractors or offerors."

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3 hours ago, Vern Edwards said:

In order for a procurement "rule" to apply to companies doing business with an agency and to be a basis for litigation, it must be published in the Federal Register. 41 USC § 1707.

Help me understand your logic. 

Isn't 41 USC 1707 a "provisions of law governing procurement or public contracts" and as such, pursuant to 31 U.S.C. § 5136, it is not applicable to the U.S. Mint.  In fact none of 41 USC would be applicable would it?   Or in other words if Treasury/U.S. Mint wants to adopt anything out of the FAR and DTAR as their rule (policy) for doing procurements they could.  I do understand that they might run up against the likes of GAO (and others) as noted because an entity like GAO would exclude themselves from helping with protests for lack of jurisdiction pursuant to laws and regulations applicable to them. 

 

 

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13 hours ago, C Culham said:

Isn't 41 USC 1707 a "provisions of law governing procurement or public contracts" and as such, pursuant to 31 U.S.C. § 5136, it is not applicable to the U.S. Mint.  In fact none of 41 USC would be applicable would it?

True.

13 hours ago, C Culham said:

Or in other words if Treasury/U.S. Mint wants to adopt anything out of the FAR and DTAR as their rule (policy) for doing procurements they could. 

True. And so the question is whether the DTAP answers these questions:

On 1/14/2018 at 9:48 AM, gfsullivan said:

How can a contractor know what rights it has and what standards and rules the Mint must follow when deciding whether to respond to a solicitation from the US Mint? The same question applies regarding potential claims for contractors performing a contract with the US Mint. 

My response: Not by reading the DTAP.

If the Mint wants to adopt anything out of the FAR or DTAR as their rule, it could do so. So what rights would a contractor have to force the Mint to comply with the DTAP. None, because the DTAP does not have "the force and effect of law." It is not in the CFR, and it was not published in the Federal Register, and it is not even mentioned in the DTAR, which is published and is in the CFR. The DTAP specifies strictly internal procedures. It says so. Moreover, federal statute says that the Mint is not bound by any federal procurement law or regulation.

So, for instance, the Christian Doctrine could not apply to any contract of the U.S. Mint. The Christian Doctrine is not based on 41 U.S.C. 7101, which did not exist when the court ruling on which it was based  was decided. It was decided on the basis that the regulations that required the inclusion of the T for C clause were promulgated by statutory requirement. Thus, those regulations have the force and effect of law. No statute requires the Mint to publish any procurement rules that it issues. As far as I can tell, they have not published any procurement rules for the public.

The DTAP imposes certain requirements with respect to compliance with CICA. See Part 1006. However, an offeror cannot go after the Mint for violation of any of those DTAP procedures, because the GAO has held that the Mint is not subject to CICA and it has no jurisdiction to handle protests against the Mint.

Similarly, the Contract Disputes Act does not apply to the Mint. So even if the DTAP imposed CDA-type procedures on the Mint, such as CO decision within a certain period of time, the contractor could not go to the CBCA or the COFC on a deemed denial basis, because they would have no jurisdiction.

So even if a firm that is considering responding to a solicitation from the Mint did, on your advice, find a rule in the DTAP that applies to the Mint and that requires the Mint conduct its procurements in certain ways, it could not hold them to it on the grounds that the Mint violated the DTAP. Even if a contractor could find that the Mint violated the DTAP in awarding its contract, it could not seek relief on the ground that the Mint violated a rule that has the force and effect of law. 

In short, even if the DTAP applies to the Mint, it would not answer the question:

On 1/14/2018 at 9:48 AM, gfsullivan said:

How can a contractor know what rights it has and what standards and rules the Mint must follow when deciding whether to respond to a solicitation from the US Mint? The same question applies regarding potential claims for contractors performing a contract with the US Mint. 

Might a prospective contractor or an actual contractor learn from the DTAP what the Mint was supposed to do? Perhaps, if the DTAP applies. But what good is that if it has no legal right to seek enforcement?

(Does the DTAP apply to the Mint? I don't think so. Consider DTAP Subpart 1033.2. What sense does it make to say those rules apply to the Mint when under the CDA the CBCA and the COFC have no jurisdiction over disputed claims against the Mint? The Department of Treasury or the Mint cannot decide to apply the CDA to the Mint, since statute says that it doesn't, and since such a decision thus could not grant jurisdiction. In only one place does the DTAP appear to require the Mint to do anything. See DTAP Table 1, footnote 3: "The U.S. Mint HCA, or designee, in consultation with the SPE, shall determine which specific contracts or class of contracts is for products and services unique to U.S. Mint operations and programs.")

What a prospective contractor and actual contractor must know about doing business with the Mint that it is not bound by Federal procurement statutes and regulations and is not even bound by its own, whatever they may be. I can't find them.

It does not appear that a prospective contractor has any rights with regard to the Mint's conduct of its procurements. I presume that an actual contractor's rights are only those stipulated in its contract with the Mint.

Can a prospective contractor learn of its rights and of the procedures the Mint must follow from a solicitation? i don't know. I have not been able to find one, and I don't know what they look like or contain. Don't assume that they are the same as the ones prescribed by FAR. Can it learn from a contract specialist? Maybe. Would the info obtained from such a conversation be reliable? Maybe.

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Vern Edwards –

Thank you. 

Interesting conclusions but to an extent I do not think they balance with the whole of what has been litigated with regard to the “NAFI Doctrine”.   Yep a new term for me, only found it as I continued to think about this discussion.   I have not concluded that the DTAP does not apply after reading through some of the many references I have found, noting only that once a contractor has a dispute or protest involving the US Mint they are in for quite a ride.  Otherwise I am done with this discussion thread and will leave it others to draw their own conclusions.

“NAFI Doctrine - 76. Nonappropriated Fund Instrumentality Claims

A nonappropriated fund instrumentality (NAFI) is an entity to which Congress has appropriated no funds, and for which it assumes no financial obligation. See Standard Oil Co. v. Johnson, 316 U.S. 481, 485 (1942). NAFIs include military post exchanges and officers clubs. Slattery v. United States, 635 F.3d 1298, 1304 (Fed. Cir. 2011) (en banc). Although a Government entity's status as a NAFI used to be a bar to jurisdiction over contract disputes under the Tucker Act, the jurisdictional criterion no longer is how the entity is funded, but whether it was acting on behalf of the Government. Id. at 1301.”  (Reference: https://www.justice.gov/usam/civil-resource-manual-76-nonappropriated-fund-instrumentality-claims)

Some additional references with a whole bunch more available via internet search.  I might add that there is even coverage to an extent in the GAO Redbook.

Slattery v. United States, 635 F.3d 1298, 1300 (Fed. Cir. 2011) (en banc).  (This appears to be an important change to the NAFI doctrine especially if the US Supreme court has not overturned it as in general it concludes that a NAFI acting on behalf of the Government is not immune unless specific statute so states.

AINS, Inc. v. United States, 365 F.3d 1333, 1344 (Fed. Cir. 2004). (This case by my read was the general holding prior to Slattery.)

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So I post a lengthy response to your question to me, and you respond that my answer does not "to an extent... balance with the whole of what has been litigated," posting a quote about something that you say is new to you, which you clearly do not understand in the context of my answer, and the pertinence of which you otherwise do not make clear, providing a link to the source that doesn't work, and mentioning some obscure references with no explanation or argument of your own. Then you announce that you're done.

That's it?

:huh: :rolleyes: :lol:

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Vern Edwards – Oh for goodness sake.   Remember my “done” carried a caveat and that was leave it to others to make up their own minds.  And this says the same thing by my read….

On ‎1‎/‎16‎/‎2018 at 5:16 AM, Vern Edwards said:

Can a prospective contractor learn of its rights and of the procedures the Mint must follow from a solicitation? i don't know. I have not been able to find one, and I don't know what they look like or contain. Don't assume that they are the same as the ones prescribed by FAR. Can it learn from a contract specialist? Maybe. Would the info obtained from such a conversation be reliable? Maybe.

 

This is the very reason I said I am done.  You had your say I had mine, that’s it.   I just do not get how I am the bad guy when you edit your posts, tell me stuff like “I won’t respond to you”  and “done” in previous posts you make and when the shoe is on the other foot you whine.   Get over it.

 

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C Culham:

I knew you'd come back. B)

I'm not over your accusation that I was "very misleading," and I'm not going to be over it any time soon.

Carl,

This back-and-forth between us started when I responded to your charge that something I said:

On 1/14/2018 at 4:09 PM, Vern Edwards said:

None.

The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public.

was "very misleading." That upset me, because every regular reader here knows that when answering a question I work hard to be clear and correct, to provide explanation and argument, often going to great lengths to do so. That doesn't mean that I can't be, and haven't been, wrong, but someone must show me the light if they say I am.

I cannot find how my response to the OP was "very misleading," and you have not been able to make your charge clear, much less convincing. You assert that "None" was wrong, because, you say, the DTAP applies to the Mint and thus would tell the OP what a contractor's rights are and what procedures the Mint must follow when conducting its procurements. As best as I have been able to determine your assertion is based on (a) the fact that the DTAP states that it applies to procurements using both appropriated and nonappropriated funds and (b) the Mint uses nonappropriated funds.

If that is your argument, it blithely ignores the fact that the DTAP also says that it supplements the DTAR, and the DTAR, which supplements the FAR, says that it does not apply to the Mint. I pointed out other facts, as well, that indicate that the DTAP does not apply and that it does not confer any rights on offerors and contractors or describe any procedures that the GAO or the courts will force the Mint to follow. At least one part of the DTAP, Subpart 1033.2, legally could not apply, even if a Treasury official were to say that it applies. Moreover, a reading of the DTAP (see, e.g., Part 1015) will show that much of it makes no sense unless read it along with the DTAR and the FAR, which it supplements and which clearly do not apply.

(BTW, in re: your reference to the NAFI doctrine--it applies to court jurisdiction under the Tucker Act, not the Contract Disputes Act. You should also know that the GAO does not consider revolving funds, such as the Mint's Public Enterprise Fund, to be "nonappropriated funds." See the Red Book, Vol. 3, Ch. 1, wherein the definitional differences between the GAO and the courts are discussed. I do not know whether the DTAP uses the term "non-appropriated funds" in the sense in which the GAO defines it or the Federal Circuit when it says that the DTAP applies )

Moreover, even if someone from the Mint were to post here and say that the Mint does have to follow the DTAP, that would not tell an offeror or contractor what its rights are and what procedures the Mint "must" follow, because the DTAP states strictly internal policies and procedures and does not have the force and effect of law. It thus confers no rights on offerors and contractors. So, by telling the OP to look to the DTAP for the answers to their questions, it was you who were misleading.

No, I'm not over it. When I responded to a question that you asked me with a detailed, documented answer, you tossed it off with an obscure quote, a few unexplained citations, and a bye-bye. Well, if you're going to say that someone here was "very misleading" you owe them, whoever they may be, and everybody else, a complete, coherent explanation and a decent argument. And you're not "done" until you do explain and do make that argument. You can leave the thread if you want to, but that won't make you "done."

Vern

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Vern -

Yep, glutton for punishment.

I do appreciate the opportunity to respond further. 

 

On ‎1‎/‎14‎/‎2018 at 4:09 PM, Vern Edwards said:

None.

The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public.

The first sentence of FAR 1.101 is a lie.

To your points in your edited post–

As I have provided there is both law and rule that do apply to the US Mint.  They may not provide the detail the OP is hoping for yet there is law that as we have both repeated being that Federal laws governing  Federal procurement or public contract is not applicable to the US Mint.  To  say not any laws apply is not in keeping with the fact that 31 U.S.C. § 5136 exists and does apply to the US Mint.   As to a rule I have maintained and will maintain that the DTAP is a rule and does apply to the US Mint. As I further provided as a result of the effort I put into researching the top of this thread another rule also applies to the US Mint and that is of a legal doctrine –  the “NAFI doctrine.” 

To your most recent post and the view that I have casually ignored elements of the DTAP I offer you too seem to ignore the whole of the DTAP.  As based on your arguments regarding of the DTAP being not applicable for the US Mint then one would also conclude that delegations of procurement authority are not applicable to US Mint employees who contract for products or services, the Director the Mint has no authority to award and administer contracts, and there is no unique or non-unique considerations to be made with regard to US Mint procurements.

Said generally through an explicit quote from the DTAP it adopts guiding principles that do not always provide the imperative but provides that “The FAR, DTAR, and the supplemental DTAP are to be construed liberally to achieve optimum benefit and maximum value for all Treasury acquisitions, and subsequent actions pursuant thereto should be consistent with statutory and regulatory requirements, policy, and sound business judgment.  

It is disconcerting to me for something like 45 years I have put great value in your thoughts, guidance, and opinion only be summarily and with routine to be attacked with statements about my personal attributes as opposed to simply sticking to the debate.   Pardon me but I do not, and I am not, nor do I present a “pile of lard” and or “stupid”.   Your intent to discourage my participation in this thread and the WIFCON Forum is for me far less compelling than my personal resolve to stand my ground on views I have presented and be an active participant.     

So as clearly stated more than once let me know when you find that Treasury provides that their DTAP is not applicable to the US Mint until then I apologize for upsetting you in my attempt to make honest and researched arguments as to why stating that not any laws or rules apply to the US Mint could be confusing to one that simple reads the thread if it ended with your “None” statement.  

Most and Always Respectfully,

Carl

 

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Welcome back, Carl. I knew you weren't "done." -_-

Reading through your last post, it strikes me that you did nothing more than repeat your previous assertions that the DTAP applies to the Mint and so answers the OP's questions, without addressing any of my argument in detail. Thus, I see no point in going over it with you again. As Einstein is supposed to have said: “The definition of insanity is doing the same thing over and over again, but expecting different results." Well, I'm obstinate, but not crazy.

As for this--

11 hours ago, C Culham said:

It is disconcerting to me for something like 45 years I have put great value in your thoughts, guidance, and opinion only be summarily and with routine to be attacked with statements about my personal attributes as opposed to simply sticking to the debate.   Pardon me but I do not, and I am not, nor do I present a “pile of lard” and or “stupid”.   Your intent to discourage my participation in this thread and the WIFCON Forum is for me far less compelling than my personal resolve to stand my ground on views I have presented and be an active participant.  

--I did not call you a pile of lard. I said that about a particular set of your statements. I have not called you stupid. It was, in fact, you who first used that word in this thread, with respect to me: 

On 1/15/2018 at 8:43 AM, C Culham said:

I am not going to play this stupid game again as that is your routine.

(Heck, you said I'm routinely stupid.) I did say that one of your challenges to me was stupid, and it was. (Forgive me. I should have said ridiculous.) But I never said that you are stupid. (Note: You're still playing, so.......)

I have not attacked you, I have attacked your arguments. If I was forceful in that attack it was because of your unjustified "very misleading" comment, which I still very much resent and over which I will not get. (Also, because I have been binge-watching "The Wire.")

I'm not trying to discourage your participation in the Wifcon Forum (that's just your paranoia talking--it's not always about you), because you make many valid points and useful contributions, notwithstanding the ones in this thread.

I don't routinely comment about you. In fact, for pretty much the last few months I have generally ignored you.

Frankly, I have enjoyed our contretemps in this thread. I have done a lot of research in order to make my posts and have learned a lot. The best part was learning that the definition of "non-appropriated funds" is much more complex than I realized. Let me recommend that you read up on the NAFI Doctrine, though, since you clearly do not understand that it has no bearing on my argument and does not support your response to it. I was talking about the Contract Disputes Act. The NAFI Doctrine bears on the Tucker Act. Try reading Johnson, "The Federal Circuit's Abrogation of the NAFI Doctrine: An En Banc Message with Applications for Other Jurisdictional Challenges?", Public Contract Law Journal (Fall 2012).

Best,

Vern

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11 hours ago, Vern Edwards said:

The NAFI Doctrine bears on the Tucker Act.

I have looked at multiple references with regard to NAFI  and feel I understand the distinction - Tucker Act versus CDA. 

I brought in NAFI because you said this. 

 

On ‎1‎/‎16‎/‎2018 at 5:16 AM, Vern Edwards said:

It does not appear that a prospective contractor has any rights with regard to the Mint's conduct of its procurements.

With no distinction regarding CDA.  

So in total your arguments have be none and then edited and then any and now....

11 hours ago, Vern Edwards said:

Let me recommend that you read up on the NAFI Doctrine, though, since you clearly do not understand that it has no bearing on my argument and does not support your response to it.

True statement or not true statement?   Not any rights are available to a prospective contractor or actual contractor to the U.S. Mint with regard to the Mint's conduct of their procurements.

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22 hours ago, C Culham said:

I brought in NAFI because you said this.

On 1/16/2018 at 5:16 AM, Vern Edwards said:

It does not appear that a prospective contractor has any rights with regard to the Mint's conduct of its procurements.

With no distinction regarding CDA.  

Thanks for that partial clarification of your thinking. It would be great if you would learn to write complete explanations and arguments. If you're not going to be complete, why bother?

22 hours ago, C Culham said:

True statement or not true statement?   Not any rights are available to a prospective contractor or actual contractor to the U.S. Mint with regard to the Mint's conduct of their procurements.

With regard to the second sentence of that statement, why do you insist on providing only partial quotations or inaccurate paraphrases of what I said? I think you are honorable, but careless. Really, enough. Here is what I said in full:

On 1/16/2018 at 5:16 AM, Vern Edwards said:

It does not appear that a prospective contractor has any rights with regard to the Mint's conduct of its procurements. I presume that an actual contractor's rights are only those stipulated in its contract with the Mint.

What I said was what appeared to me to be the case. That statement was true then and now. It still appears that way to me.

I did not say that "not any rights" are available to actual contractors. I said that I presumed that they have contractural rights, and I want you to acknowledge that in your next post, assuming there is one. I don't think you are intentionally misleading. I think you are carelessly so. You are not orderly and complete. You are a master of the incomplete expression and fractured argument. Take some time and do it properly, for your own sake. 

Let's deal with my statement in detail. Fair warning: This is going to be long.

Actual contractors A contractor to the U.S. Mint has no rights under the Contract Disputes Act, but it does have rights to sue for breach of contract under the Tucker Act, 28 USC § 1491(a)(1):

Quote

(a)(1) The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.

I don't have anything to say about the Constitution. We're talking procurement here. A contractor would have no grounds for suing on the basis of violation of a procurement law or regulation, because the Mint is exempt from all of them and hasn't published any of its own. (The DTAP is not an Act of Congress or a regulation.) As for breach of contract, my presumption is consistent with the law.

Prospective contractors I presume that a prospective contractor might want to sue on the basis of something that the Mint did or failed to do when awarding a contract. The question is, would a prospective contractor have a right to protest. We already know that the GAO has ruled that a prospective contractor cannot protest to them. What about the COFC? See 28 USC § 1491(b):

Quote

(b)(1) Both the Unites [sic] States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.

(2) To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.

(3) In exercising jurisdiction under this subsection, the courts shall give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.

(4) In any action under this subsection, the courts shall review the agency's decision pursuant to the standards set forth in section 706 of title 5.

(5) If an interested party who is a member of the private sector commences an action described in paragraph (1) with respect to a public-private competition conducted under Office of Management and Budget Circular A-76 regarding the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, then an interested party described in section 3551(2)(B) of title 31 shall be entitled to intervene in that action.

(6) Jurisdiction over any action described in paragraph (1) arising out of a maritime contract, or a solicitation for a proposed maritime contract, shall be governed by this section and shall not be subject to the jurisdiction of the district courts of the United States under the Suits in Admiralty Act (chapter 309 of title 46) or the Public Vessels Act (chapter 311 of title 46).

(Note that despite the language of paragraph (b)(1), the district courts lost Tucker Act jurisdiction over protests as of January 1, 2002. See 110 Stat. 3875(d).)

A prospective contractor could file suit in the COFC under 28 USC § 1491(a)(1) if it could persuade the court that the Mint violated an applicable regulation or breached an implied contract between itself and the Mint to evaluate its proposal in a certain way. (See Cibinic et al., Formation of Government Contracts 4th, pp. 252-256 for discussion of implied contracts.) The remedy could only be monetary damages, not corrective action. We know that "provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations," 31 USC § 5136. Moreover, the DTAP, even if applicable, is not a "rule" (i.e., regulation)  as defined by the Administrative Procedures Act, 5 USC § 601(2), because it wasn't published in the Federal Register. So the only basis for any claim by a prospective contractor would have to be that the Mint had breached an implied contract to evaluate its proposal in a certain way. In such a case it would be proceeding on the ground that it is an actual contractor, not merely a prospective contractor. So we're back to my statement about the rights of actual contractors, above. (There has never been such a case that involved the Mint.)

Could a prospective contractor protest pursuant to paragraph (b)? Is paragraph (b) a "law governing procurement or public contracts"? If so, would the court have jurisdiction? No one knows, because there has never been an attempt to sue the Mint under paragraph (b). I would say no, and I discussed the matter with Prof. Nash, who concluded: "Who knows?" I mention this knowing full well that you will disagree.  In any case, such a protest would ultimately have to be grounded in behavior inconsistent with law, which brings us back to ""provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out Mint programs and operations," 31 USC § 5136.

If a prospective contractor has any rights, I cannot say what they are other than to file suit for something or other. Whatever such rights might be, if any, they would not arise from the DTAP.

So let's go back to the OP's question and to the post that you said was "very misleading":

On 1/14/2018 at 9:48 AM, gfsullivan said:

If federal procurement regulations and laws do not apply to the Mint, what rules do?

On 1/14/2018 at 4:09 PM, Vern Edwards said:

None.

The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public.

I don't think that answer is at all misleading, and I stick by it. But if I was writing it again I would say, None that I'm aware of.

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19 hours ago, Vern Edwards said:

It would be great if you would learn to write complete explanations and arguments. If you're not going to be complete, why bother?

Well I see you are not done at trying to discourage my participation in the discussion because I just can't learn!

 

19 hours ago, Vern Edwards said:

With regard to the second sentence of that statement, why do you insist on providing only partial quotations or inaccurate paraphrases of what I said? I think you are honorable, but careless. Really, enough. Here is what I said in full

Still more.   I will really enjoy adding careless to my resume now!

19 hours ago, Vern Edwards said:
On ‎1‎/‎16‎/‎2018 at 5:16 AM, Vern Edwards said:

It does not appear that a prospective contractor has any rights with regard to the Mint's conduct of its procurements. I presume that an actual contractor's rights are only those stipulated in its contract with the Mint.

What I said was what appeared to me to be the case. That statement was true then and now. It still appears that way to me.

Oh for Pete's sake.  So by example a contractor could not file a protest direct with the US Mint?  Reference - DTAP 1033.103.

19 hours ago, Vern Edwards said:

 

I did not say that "not any rights" are available to actual contractors. I said that I presumed that they have contractural rights, and I want you to acknowledge that in your next post, assuming there is one. I don't think you are intentionally misleading. I think you are carelessly so. You are not orderly and complete. You are a master of the incomplete expression and fractured argument. Take some time and do it properly, for your own sake.

This statement (above) is the very reason I continue to repeat myself.  Your edited post of 1/14/2018 reads as follows in full -

On ‎1‎/‎14‎/‎2018 at 4:09 PM, Vern Edwards said:
On ‎1‎/‎14‎/‎2018 at 9:48 AM, gfsullivan said:

If federal procurement regulations and laws do not apply to the Mint, what rules do?

None.

The Mint is statutorily exempt from "all" federal procurement laws and regulations. See A-Z Cleaning Solutions, GAO B-415228, November 6, 2017. They have published no rules of their own in the Federal Register. They probably have internal procedures. If they have, they apparently are not making them available to the public.

The first sentence of FAR 1.101 is a lie.

The question of the OP is "What rules do?" and you said None or in other words not any.  Supporting that one rule - GAO - does not is not supporting not any.   Now by our posts after your response, but most especially yours, inclusive of your last, supports that rules of law and regulation do and you want to quibble that you were not talking about the "Constitution", actual and prospective contractors, etc.   As I posed before (no apology for the repeat) just think if the thread ended with your post as quoted above?  Just say'n.

19 hours ago, Vern Edwards said:

Actual contractors 

Agreed.

19 hours ago, Vern Edwards said:

Prospective contractors

To your points -

A prospective contractor has the right of protest to the agency.  DTAP reference already provided.

With regard to the DTAP and your further effort to disclaim it as a rule my position is clear but I do believe you are missing a valuable point that comes from the Slattery case and that point being as quoted from the case - "The jurisdictional criterion is not how the  government entity is funded or its obligation met but whether the government entity was acting on behalf of the government."  It remains untried with regard to a protest yet but I would pose that as the DTAP is followed by the US Mint in performing procurements it could be depended on to show that the US Mint was/is acting on behalf of the government.  So I agree it depends.  But to the to the point of - it depends - it is an operative position in much of FAR conducted procurements too as contracting no matter how or who is conducting it is not black and white.

Effort appreciated,

Carl

PS - In my efforts of researching the full discussion of this thread I reached out to a US Mint CO with regard to whether the DTAP applies to procurements of the US Mint.   The answer was that it does and that it is followed to the "maximum extent practical."  As reference DTAP 1001.601 was provided. 

 

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1 hour ago, C Culham said:

Well I see you are not done at trying to discourage my participation in the discussion because I just can't learn!

Why would I suggest that it would be great if you would learn if I didn't think that you could learn? Man, you're paranoid! I'm out to get you, ooooooh. :lol:

1 hour ago, C Culham said:

PS - In my efforts of researching the full discussion of this thread I reached out to a US Mint CO with regard to whether the DTAP applies to procurements of the US Mint.   The answer was that it does and that it is followed to the "maximum extent practical."  As reference DTAP 1001.601 was provided. 

Okay, for the sake of discussion I'll accept the authority of your unnamed Mint CO. But what does "to the maximum extent practical" (practical or practicable?) mean in the context of the Mint's exemption from procurement laws and regulation? Did you ask about that?  The DTAP supplements the DTAR, which supplements the FAR. The DTAR says it does not apply to the Mint. So how are we, or an offeror or contractor, to interpret the applicability of the DTAP? How can the OP know its rights and the procedures that the Mint must follow from a reading of the DTAP? Did you ask the CO for any specific example? For example, what about DTAP Part 1015? Does that apply? What is an offeror or contractor to make of it?  In any case, I have already discussed the practical limitations of any such applicability.

1 hour ago, C Culham said:

The question of the OP is "What rules do?"

The DTAP is not a "rule." See 5 USC § 601(2).

1 hour ago, C Culham said:

With regard to the DTAP and your further effort to disclaim it as a rule my position is clear...

It's clear that you call it a rule, but it's not clear on what basis you do so. What about 5 USC § 601(2).

1 hour ago, C Culham said:

Oh for Pete's sake.  So by example a contractor could not file a protest direct with the US Mint?  Reference - DTAP 1033.103.

Can they? The statutory rules about protest do not apply to the Mint. The protest rules in FAR Subpart 33.1 do not apply to the Mint. The protest rules in the DTAR do not apply to the Mint. How are we to know that the protest rules in the DTAP apply to the Mint. And if they do, how are we to know the contractor's rights and Mint's procedures for handling such protests if it does not have to comply with the FAR and the DTAR?

"[W]hen I became a man, I put away childish things."

You are never going to admit that I was not "very misleading," which is all I want. So I'm putting you away right now.

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