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alexreb

FAC 2005-48 & ID contracts under Subpart 19.10

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The authority to award new work under a contract vehicle created under the repealed demonstration program would seem to be directly contrary to the expressed will of Congress. (No more steel from Timbucktoo.)

To do otherwise would not pass the red-face test. Imagine being called to testify in front of a congressional committee and being asked to explain why you awarded new work under a repealed program. All the finely nuanced arguments in the world would not sound reasonable, mainly because they aren't, imho.

Why can you not use contracts awarded prior to the repeal? What has directed the non-use of existing contracts?

See FAR 1.108(d):

Quote

(d) Application of FAR changes to solicitations and contracts. Unless otherwise specified ?

(1) FAR changes apply to solicitations issued on or after the effective date of the change;

(2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and

(3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.

Unquote

What has specified non-use of existing contracts?

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Vern,

My post #18 was crystal clear on my position. I'll try one last time.

1. The rule of two applies to task and delivery orders, because task and delivery orders are acquisitions. This has been my position from the start. In LBM, the GAO rejected a number of the Army's arguments. One such argument was that the rule of two did not apply to task and delivery orders. In determining that the rule of two applied to the motor pool services, the only fact that mattered was that procurement of the motor pool services at issue was an "acquisition." The issue of the "transfer" was important in determining if the protest was within the GAO's protest jurisdiction. It had nothing to do with whether the rule of two applied to the work.

2. An agency can apply the rule of two to task or delivery orders either before award or after award (that is, if they failed to comply before award, they must do so after award--not that they have a choice of complying before or after). An agency can comply FAR 19.502-2(B) for all future task and delivery orders under an IDIQ contract if a) they considered set-asides in the planning phase of the IDIQ solicitation and B) the solicitation reasonably described the work contemplated by the particular task or delivery order. If, after award, the agency intends to issue a task or delivery order and cannot meet conditions (a) and (B), then they must apply the rule of two to the task or delivery order at that time.

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Validity, and use or non-use, of existing contracts are not the point.

We are talking about not soliciting or awarding any new task orders under the old, repealed program.

It's that simple.

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I disagree with your first point.

I disagree with your second point.

We know each other and we both know the conversation is over at this point.

I'm content to let interested individuals reach their own conclusions.

Peace.

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Validity, and use or non-use, of existing contracts are not the point.

We are talking about not soliciting or awarding any new task orders under the old, repealed program.

It's that simple.

I'll tell you what's simple: You're wrong. We are talking about issuing or not issuing within-scope task orders under validly awarded contracts.

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Guest carl r culham
If you look at FAC 48, Item I, you'll find the name of the procurement analyst responsible for that change and his phone number. Call him for clarification.

Good advice Vern. I am going to choose to text him while I am driving as my IDIQ contract issued on Oct 2, 2009 has not been amended yet to prevent such an act. Hope I do not get in an accident when I do and have to explain an accident while doing Government business that was a result of my texting and doing so just happens to be contrary to a EO. I am sure they will just let it slide as the contract I have includeds texting in its original scope!

PS - Apologies to all for the distraction but I could not resist a volley back as I grow tired of purposeful digs intended, in my personal view, to derail respectable debate.

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Carl:

Allow me to put your mind to rest. The policy about texting does not prohibit contractor employees from doing it. See FAR 52.223-18. So you would have nothing to explain if you were to crash, which I hope you don't. Moreover, it applies only to contracts resulting from solicitations issued on or after September 29, 2010, about a year after the E.O. See 75 FR 60264. Agencies are not required or authorized to force the policy on contractors whose contracts resulted from solicitations issued before that date. So you are good to go, Dude, unless your company agreed to the addition of the clause in return for consideration. So text away. Don't sweat the E.O. But pull over while you text. I'm still expecting that beer at a future Pendleton Roundup and want you to be around to buy it.

By the way, unlike the elimination of FAR 19.10 in FAC 2005-48, which is not a significant regulatory action, the texting "ban" is a significant regulatory action. Go figure. And to think that because of an insignificant regulatory action some of you want to terminate existing contracts or not issue orders against them, when the government does not require that be done because of a significant regulatory action. No wonder the workforce thinks it's overworked.

Oops! That last bit was a purposeful dig, wasn't it? Sorry. Somehow, though, I don't think it will derail you or anybody else. You guys have been more than holding your own. I feel positively ganged up on. Thanks, napolik, for your support.

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I left a voice message with the procurement analyst listed in FAC 2005-48 to contact me about this issue. I've followed this "debate" with interest from the sideline and believe both sides have merit. Which ever position I choose, I should have plenty of ammunition to back up my reasoning. Great discussion. I'll post Mr. Morgan's comments when he returns my call.

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alexreb, take a look at DFARS 219.502-1(2), limiting the application of the "Rule of Two" policy in certain A-E contexts. It says:

Do not set aside acquisitions for?

...

(2) Architect-engineer services for military construction or family housing projects of $350,000 or more (10 U.S.C. 2855), including indefinite delivery and indefinite quantity contracts if the value of all anticipated orders is expected to total $350,000 or more.

(emphasis added).

It may help you avoid altogether LBM, its recon, Delex, and Datamaxx.

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I have not checked out Jacque's advice, but it's certainly worth looking into. However, I want to talk about LBM. If you read it carefully, it was a protest against the acquisition of out-of-scope work under an IDIQ contract. Work that was out of the scope of the competition for the contract or that is out of the scope of the contract itself cannot be ordered under the contract without a J&A. Here is what the GAO said on page 4 of the LBM decision (pdf version):

LBM is not challenging the proposed issuance of a task order for these services, but is raising the question of whether work that had been previously set aside exclusively for small businesses could be transferred to LOGJAMSS, without regard to the Federal Acquisition Regulation (FAR) ? 19.502-2(B) requirements pertaining to small business set-asides. This is a challenge to the terms of the underlying LOGJAMSS solicitation and is within our bid protest jurisdiction... It was only at the point that the agency decided to withdraw the Fort Polk motor pool services from the small business set-aside program and to transfer them to the LOGJAMSS contracts that the analysis required by applicable regulations, that is, as discussed below, FAR ? 19.502-2(B), became relevant.

In other words, LBM was protesting that the motor pool work was not within the scope of the competition for the IDIQ contract. It was being withdrawn from a set-aside and "transferred" to that contract. Since the motor pool work was out of scope, the agency had to conduct a Rule of Two analysis (FAR 19.502-2(B)) before it could issue a task order.

In both LBM and Datamaxx (B-400582, December 18, 2008), the latter of which was mentioned by Jacques, the GAO complained about vague and overly broad work statements in some IDIQ contracts. Don made the point that since the statement of work was broad the motor pool work could be within the scope of the contract, even if not within the scope of the competition. That doesn't make much sense to me, because in order to determine whether the work is within the scope of a competition the first place the GAO must look would be the statement of work. If it's in the SOW then it must be within the scope of the competition. But there is another argument, which is that if the SOW is vague, then there may be no way to determine whether or not given work is within its scope, and if you cannot determine that it is, then you should determine that it's not. I think that is what GAO did in LBM. It determined that given the vagueness of the contract SOW:

LBM cannot reasonably be viewed as on notice that the Army would transfer the work to [the IDIQ contract] without consideration of FAR 19.202-2(B).

What is important to me is that everyone understand that LBM and Datamaxx do not stand for the proposition that an agency must conduct a rule of two analysis after the award of an IDIQ contract but before issuance of task orders that were within the scope of the competition for that contract and that are within the scope of the contract itself, assuming that the contract was awarded in compliance with applicable law and regulations, including FAR 19.202-2(B). A rule of two analysis need be performed only for out of scope task orders or if the CO did not comply with FAR 19.202-2(B) before issuing the solicitation for the contract.

Delex is another matter. It stands for the proposition that the rule of two continues to operate within a multiple award IDIQ contract when at least two of the awardees are small businesses. The GAO did not hold that the Rule of Two applied with respect to small businesses who are not among the awardees. Scope was not an issue in Delex.

I must add this: GAO decisions are not "case law" in the same sense as decisions of the federal courts. Unlike the decisions of other administrative tribunals, such as the boards of contract appeals and the SBA Office of Hearings and Appeals, GAO decisions are not binding on anybody and are not "law" at all in any meaningful sense. They are merely non-judicial, non-binding opinions. They have effect only to the extent that the Executive Branch chooses to go along with them. Although I think that the GAO decided rightly in LBM, I think its explanation for its decision was dreadful and misleading. I think GAO's decision in Delex was simply wrong, and I wish that the agency in that case had told GAO to get lost. Yes, a protester can then go to the Court of Federal Claims, but that court does not always agree with GAO. Last December I was on a panel with Judge Wolski of the court, Ralph White of the GAO, and Professor Ralph Nash in which we focussed on the differences between GAO and the court. However, agency contracting officials are intimidated and reluctant to reject GAO recommendations. I understand why, but I wish they would gird their loins more often. Maybe their successors among the new generation will have more guts.

As for the retroactive effect of the cancellation of the Competitiveness program and the deletion of FAR Subpart 19.10, that is a separate issue. Some here say that the cancellation of that program affects future task orders issued against contracts that were legally awarded while the program was in effect, which would effectively invalidate such contracts. LBM has no bearing on that argument. If that argument is correct, if the statutory cancellation is retroactive in effect, then its advocates do not need LBM. For those who think that a new Rule of Two analysis must be made even for within scope orders, and that since the Competitiveness program has been cancelled new orders might have to be set aside in a new procurement, LBM does not help them.

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In both LBM and Datamaxx (B-400582, December 18, 2008), the latter of which was mentioned by Jacques, the GAO complained about vague and overly broad work statements in some IDIQ contracts. Don made the point that since the statement of work was broad the motor pool work could be within the scope of the contract, even if not within the scope of the competition. That doesn't make much sense to me, because in order to determine whether the work is within the scope of a competition the first place the GAO must look would be the statement of work. If it's in the SOW then it must be within the scope of the competition. But there is another argument, which is that if the SOW is vague, then there may be no way to determine whether or not given work is within its scope, and if you cannot determine that it is, then you should determine that it's not. I think that is what GAO did in LBM. It determined that given the vagueness of the contract SOW:

Vern,

I think that is a fair description of our disagreement. I read LBM as a counterexample to your contention that FAR 19.502-2 does not apply to task and delivery orders that are within the scope of a validly awarded contract. I think that the work for the motor pool services, while outside the scope of the competition, was probably within the scope of the contract. I know you disagree-no need to discuss further.

What is important to me is that everyone understand that LBM and Datamaxx do not stand for the proposition that an agency must conduct a rule of two analysis after the award of an IDIQ contract but before issuance of task orders that were within the scope of the competition for that contract and that are within the scope of the contract itself, assuming that the contract was awarded in compliance with applicable law and regulations, including FAR 19.202-2(B). A rule of two analysis need be performed only for out of scope task orders or if the CO did not comply with FAR 19.202-2(B) before issuing the solicitation for the contract.

Agreed. Assuming you mean FAR 19.502-2(B) and the "scope" you are referring to in your last sentence is "scope of the competition."

Lastly, if alexreb's agency is not willing to tell the GAO to pound sand with respect to Delex and if there are two or more small business concerns under his multiple-award IDIQ contract, then he now must consider setting aside task orders for competition among small business awardees before opening up the competition to all awardees.

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I'll tell you what's simple: You're wrong. We are talking about issuing or not issuing within-scope task orders under validly awarded contracts.

The issue is more like limiting competition in solicitations for new requirements by using MATOCs awarded under a repealed demonstration program, when one of the major reasons for the repeal was the limitation of competition.

Thinking it's OK to use the limited competitive environment of these MATOCs, that were established under a demonstration program that was repealed because it limited competion, to solicit and award new work, defies common sense as far as I can see. The message was clear: limiting competition for any new work under the MATOCs is no longer allowed.

The rest sounds like quibbling about distinctions that do not make a difference, but rather than be so blunt as to reciprocally say you're wrong, let me elevate the tone and just say that I disagree on how to solicit and award new requirements in the context of these laws and their implementing regulations.

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Hi Don.

Yes, I meant 19.502-2(B), not 19.202-2(B). And I will agree to "scope of the competition" on grounds that work might be within the scope of the contract but outside the scope of the competition. We should make clear, however, that we agree that if the work is outside the scope of the contract, a rule of two analysis is necessary (and a J&A).

As to your point about LBM, I don't disagree with your scope of competition vs. contract analysis. There are two arguments: (1) that vagueness should be read to include and (2) that vagueness should be read to exclude. I was just making a case for the second argument--that if the SOW is vague then you cannot prove the point that the work is in or out so it's out.

Vern

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Hi Don.

Yes, I meant 19.502-2(B), not 19.202-2(B). And I will agree to "scope of the competition" on grounds that work might be within the scope of the contract but outside the scope of the competition. We should make clear, however, that we agree that if the work is outside the scope of the contract, a rule of two analysis is necessary (and a J&A).

We agree.

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Cajuncharlie:

What's wrong with telling someone they're wrong? You're not one of those politically correct or super sensitive types, are you? You can tell me I'm wrong. I won't be upset. Some of my best friends tell me that when we're arguing about this stuff. And a lot of them aren't so nice as to say, "You're wrong." They say something more like, "You're full of ----, Edwards." It's worse if we're drinking. If you say I'm wrong I'll just argue back if you don't make your case. Since we're not friends, I won't tell you you're full of, well, you know. If I think you're right I'll say "You were right and I was wrong." I've done it here more than once.

Not this time, however. You're still wrong. (In my opinion. There. Does that help?)

The requirement is not "new" if it is within the scope of the competition for the contract and the contract itself. Only out of scope work is "new work." It would be very unusual, almost unheard of, for Congress to enact legislation that would invalidate a validly awarded contract. If they planned to do that I think that they would say so, if not in the statute itself, then in the legislative history. Right now, all you've got going for you is your common sense. Good luck with that.

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Flatly stating that somebody is wrong is not how I was brought up, especially in a discussion of complex matters with numerous factors that leave room for experienced professionals to reach different conclusions. I make no claim to political correctness, and do not consider myself overly sensitive, but I do try to maintain a certain standard of business courtesy. For example, normally there is no way I would "refuse" in writing to do something, but would "decline" and soften the blow rather than escalate tensions and exaggerate differences needlessly.

Also I avoid argumentum ad hominem criticism of the person rather than the argument, and any statements that border on it. Unfortunately that kind of thing appears to be all too common in this forum. Often newcomers are dealt with more harshly than necessary. This gives the impression of being more interested in using a display of the depth and breadth of grasp of the specialized body of knowledge of our profession to score points, in a negative way, off those who are trying to learn, rather than helping them in a positive way. Challenging people to think and to use the resources at hand is one thing; tearing them to pieces in the process is quite another. It's a matter of respect and manners, which in the end count for more than people think.

Defining "new" in terms of scope rather than calendar seems odd. What I consider "new" in this context would be a requirement that arose (the complete, valid, requisition with any and all required information and attachments arrived in the procurement shop, ready for action) after the effective date of the repeal of the ("old") demonstration program.

Whether such a new requirement would have been within scope, if the program under which task orders were to be issued had not been repealed, seems moot, but that's hard to argue, as few others in this forum have your experience with statutes and legislative history related to procurement or acquisition.

If the law saying no more steel from Timbucktoo (or, reductio ad absurdum, no more cost-plus-percentage-of-cost contracts) failed to say that it applied to future task orders under validly awarded existing contracts, and the legislative history similarly contained no such statement, it's therefore OK to keep buying Timbucktoo steel from our cost+% vendor to fill every new requisition that arrives and is within the scope of the original competition and contract, then our disagreement has been pinpointed.

Oh, and I do bring my common sense to work every day, and use it, along with contract language and professional reference material, to try to avoid being carried away by a flood of finely nuanced arguments that might blur the basic difference between right and wrong.

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Defining "new" in terms of scope rather than calendar seems odd. What I consider "new" in this context would be a requirement that arose (the complete, valid, requisition with any and all required information and attachments arrived in the procurement shop, ready for action) after the effective date of the repeal of the ("old") demonstration program... Oh, and I do bring my common sense to work every day, and use it, along with contract language and professional reference material, to try to avoid being carried away by a flood of finely nuanced arguments that might blur the basic difference between right and wrong.

Cajuncharlie:

Maybe defining new in terms of scope seems odd to you because you don't have enough knowledge and experience in Government contracts. Here are some sample quotes from various sources. Note the range of time covered by the quotes.

Appellant also contends that this was clearly a repair and replacement contract and that the notes on the drawings stated only that existing roof systems should be removed and replaced. Since the buildings did not have existing separate metal fascia covers it argues that this was new work beyond the scope of the contract.
States Roofing and Metal Co., Inc., ASBCA 16265, 72-1 BCA ? 9453.
CONTRACT MODIFICATION WHICH SUBSTITUTES DIESEL FOR GASOLINE ENGINES, THEREBY INCREASING UNIT PRICE BY 29 PERCENT, SUBSTANTIALLY EXTENDING TIME FOR DELIVERY, AND RESULTING IN OTHER SIGNIFICANT CHANGES TO ORIGINAL CONTRACT REQUIREMENTS, IS OUTSIDE SCOPE OF ORIGINAL CONTRACT, AND GOVERNMENT'S NEW REQUIREMENTS SHOULD HAVE BEEN OBTAINED THROUGH COMPETITION. GENERAL ACCOUNTING OFFICE RECOMMENDS THAT AGENCY CONSIDER PRACTICABILITY OF TERMINATING CONTRACT FOR CONVENIENCE OF GOVERNMENT AND COMPETITIVELY SOLICITING ITS REQUIREMENT FOR DIESEL HEATERS.
Capitalization in original. American Air Filter Co., 57 Comp. Gen. 285, B-188408, 78-1 CPD ? 136.
In its initial protest, SMS contested the SBA's decision not to study the impact that setting aside the entire requirement under the 8(a) program would have on that firm, the incumbent small business contractor for part of the support services required. The SBA did not perform an adverse impact study because the Navy had determined that the procurement involved ?new work? and the policy of the SBA, which accepted that determination, is not to perform an impact study in such a situation. We noted that while SMS previously performed some of the work that would be required under the proposed contract, the services SMS provided were limited in scope and, in terms of cost, represented only a fraction ($273,900) of the total estimated annual cost of the entire requirement ($1,661,898). We had no reason to question the determination that there had been a material expansion of the prior requirement in terms of the scope and nature of the services and that the proposed contract therefore represented new work. We concluded by noting that there was no showing of fraud or bad faith on the part of Navy or SBA officials warranting a review of the SBA's determination that an impact study was not required.
Support Management Services , Inc. ? Request for Reconsideration, B-229583, June 9, 1988, 88-1 CPD ? 547.
In Loral Electronic Systems the GAO relied on case law from the Court of Claims. These GAO decisions interpreted the Changes clause term ?within the general scope of the contract? to decide whether the Changes clause could be properly used to procure new work instead of procuring the item pursuant to the procedures for new procurements.
Nash and Feldman, Government Contract Changes, ? 3:8 (2009).
When a modification adds work, there is the possibility that the work to be added is outside the scope of the original contract--i.e., new work--and should be the subject of a new competition.
The Nash & Cibinic Report, ?Postscript: Deductive Changes Outside the Scope of the Contract,? October 2005, 19 N&CR ? 48.
Issuing an order exceeding the original contract's scope period or maximum value improperly avoids competition. ?New? work must be solicited anew, subject to full and open competition. At the ?ordering? stage, a third party who believes that an order is beyond the original vehicle's scope can challenge the order at the GAO or U.S. Court of Federal Claims (COFC). [FN143] Absent review of out-of-scope orders, an agency could use multiple award task orders as a subterfuge for awarding completely new or different work, thus skirting a competitive procurement.
Benjamin, "Multiple Award Task and Delivery Order Contracts: Expanding Protest Grounds and Other Heresies," Public Contract Law Journal, Spring 2002, 31 Pubconlj 429.
The only other area where agencies lost a high percentage of protests--four out of nine--involved challenges to procurements as being outside of the scope of the original contract. The losing protests were all under broad contracts where agencies were trying to stretch the scope of the basic contract to cover new work.
The Nash & Cibinic Report, ?Protests to the Comptroller General: What are they about?? May 1998, 12 N&CR ? 27.
If you are to carry out your responsibility for maintaining control of the scope of the contract, you must prevent the Govt's technical personnel from introducing unauthorized or unfunded new work.
Michelman, Elements of Contract Administration, 84-10 BRPapers 1 (1984).

Finally, there is this:

ON FEBRUARY 23, 1971, BY PRESIDENTIAL PROCLAMATION, THE DAVIS-BACON ACT WAS SUSPENDED. THE SUSPENSION WAS REVOKED BY PRESIDENTIAL PROCLAMATION ON MARCH 29, 1971. WORK REQUEST AMENDMENT A00024 FOR THE CONSTRUCTION OF THE SOFTBALL ATHLETIC FIELD WAS EXECUTED BY THE CONTRACTING OFFICER ON MARCH 29, 1971, WITH AN EFFECTIVE DATE OF APRIL 1, 1971. THE AMENDMENT STATED THAT THE CONTRACTOR WAS NOT REQUIRED TO COMPLY WITH THE DAVIS-BACON ACT. INSTRUCTIONS ISSUED BY HEADQUARTERS, USAF, ON MARCH 30, 1971, ADVISED THAT SOLICITATIONS FOR CONSTRUCTION IN EXCESS OF $2,000 AND AMENDMENTS TO CONTRACTS, INVOLVING NEW WORK OUTSIDE THE SCOPE OF THE CONTRACTS, ISSUED ON OR AFTER MARCH 30, MUST CONTAIN THE DAVIS-BACON ACT PROVISIONS. IN LIGHT OF THE FACT THAT THE WORK REQUEST AMENDMENT WAS ISSUED DURING THE PERIOD THAT THE DAVIS-BACON ACT WAS SUSPENDED WE AGREE WITH THE DETERMINATION THAT THIS PROJECT WAS NOT COVERED BY THE ACT.
Capitalization in original. D.E. Clarke, B-126824, Oct. 17, 1974, 74-2 CPD ? 212.

Those are only a few of the many quotes I could have provided. I could have provided a quote from an 1853 court decision, but I thought it would be overkill.

As you can see, there is a long and widely accepted tradition of defining "new work" in terms of the scope of the contract. Work outside of scope is new work and must be competed under the rules in effect or covered by a J&A, while within scope work is not subject to the rules that apply to new acquisitions, e.g., synopsis and CICA. Experience, research. facts, and knowledge trump common sense. Until you have a better premise than your common sense, you, Cajuncharlie, are wrong. You avoided finely nuanced argument, but you let yourself be carried away by common sense and inadequate research. Anyway, now, defining new work in terms of scope won't seem so odd to you.

If you work in a contracting office, it is no small thing to discard a legally awarded contract and conduct new competitions based on someone's uninformed common sense. In this thread,you have argued for just that on no stronger ground than what seems right to you. It takes time and costs money to award new contracts. Your advice to axelreb in Post #2, apparently unsupported by anything other than your common sense, can be described only as reckless.

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By the way, if you want to see what a real ad hominem attack looks like, read Washington Post opinion columnist Charles Krauthammer's remark about New York Times columnist Paul Krugman in today's (Jan 12) column in The Washington Post.

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I haven't abused you, Charlie. I have told you that you are wrong, I have said why, and I have said that I think you are wrong because you do not know enough. I have also said that your advice was reckless. If you think that's abuse then you are too sensitive. The appropriate response from you would have been to demonstrate that I am wrong. When you disappeared for almost ten days I thought you were researching the issue. I overestimated you. It appears that you were moping.

Anyone who cannot take being told in no uncertain terms that he or she is wrong should live alone by a woodland pond and pick flowers, collect butterflies, watch birds, and write dreamy poetry that is not for publication until 100 years after their death.

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I haven't abused you, Charlie. I have told you that you are wrong, I have said why, and I have said that I think you are wrong because you do not know enough. I have also said that your advice was reckless. If you think that's abuse then you are too sensitive. The appropriate response from you would have been to demonstrate that I am wrong. When you disappeared for almost ten days I thought you were researching the issue. I overestimated you. It appears that you were moping.

Anyone who cannot take being told in no uncertain terms that he or she is wrong should live alone by a woodland pond and pick flowers, collect butterflies, watch birds, and write dreamy poetry that is not for publication until 100 years after their death.

Hey, Charlie - join the club! I suggest that you grow thicker skin, like me. I've got callouses... :)

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Years ago, I posted something like this as the first rule of the original forum.

"1. No personal attacks on another individual user. Personal attacks DO NOT include a disagreement with another poster's views. Users understand that professional disagreement and professional argument are a part of the learning process. Personal attacks include such things as calling a poster ignorant, unprofessional, etc. These posts will be removed as soon as they are seen."

************

Early in this thread there was a disagreement between two posters. I'm sure everyone learned something from the posts that passed between them. Its a nice way to handle a disagreement.

A little later, one poster told another that his position was wrong. Saying someone is wrong is a direct way of communicating. In my view, there is nothing abusive about telling one that they are wrong. Of course, if someone said I am wrong, and I believe I'm correct, I am going to defend my position with facts, figures, examples, precedent, laws, etc. If I cannot, I probably am wrong.

I'm not satisfied that this thread is complete so I will reopen it.

If I get the gist of the current argument, one position is that a Requirement under a program that has been abolished by law cannot be aquired under an IDIQ contract that currently exists. I find that appealing but show me the proof. The other position is that the original IDIQ contract can be used. I find that appealing too but show me an example of a program that was killed by law and an existing IDIQ contract was used to buy things under the program. Now, if I have the gist of it wrong, remember, I'm just a retired dumb auditor. Plus, its after midnight.

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What we have in this case is a program that applied to the formation of contracts that was terminated after an IDIQ contract was legally formed under its provisions while it was still in effect. There is no indication in the repeal statute itself or in its legislative history, or in the implementing regulation, to the effect that it was to apply retroactively to contracts that were legally awarded while the program was in effect or that it was to be applied to prohibit the ordering of within-scope work under such contracts. The standard FAR rule about application of regulatory changes to solicitations and contracts, FAR 1.108(d), provides as follows:

(d) Application of FAR changes to solicitations and contracts. Unless otherwise specified?

(1) FAR changes apply to solicitations issued on or after the effective date of the change;

(2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and

(3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.

It is well established in acquisition law and practice, as I demonstrated in an earlier post, that within-scope work is not "new work" and that rules about contract formation apply only to new work.

Earlier, I provided the name and contact information for the FAR council official who handled the FAR case implementing the program repeal. To the best of my knowledge, no one has contacted him. If I were a CO I would not bother, since, based on my knowledge and experience, the program repeal does not have retroactive effect. So as far as I am concerned, the burden is on the people who share the opposing opinion to make their case. To be frank, in the real world, if the FAR council official were to offer an opinion that differed from mine I would not accept it as gospel until I saw it officially in writing. The reason is that given the administrative effort associated with awarding the existing contract, and the effort that would be entailed in awarding a new one, I would be unwilling to discard it without a strong official statement in support of the opposition. However, I would acknowledge that the opinion of an official of the FAR council would weigh in their favor, especially if he provided persuasive rationale.

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Guest carl r culham

bob - For consideration.

As expressed by my example of Timbucktoo but now more specific to the question at hand. Admittedly some of my conclusions have changed but one paramount one remains - the IDIQ cannot be used for the requirement because it is "new".

The full example - A new requirement is submitted to me as a CO. In either my detailed analysis of available sources, inclusive of applying FAR Part 8 and FAR Part 10, or in the routine quick assessment of same I determine that the need can be procured through commercial sources (FAR 8.002(a)(2)(iv)) and by application of FAR 10.001, inclusive of 10.001(a)(2)(v), I then determine whether the requirement must be set aside in accord with FAR 19.502-2. In doing so I determine that the based on value it must be because it is less than $150K or is over and the "Rule of Two" applies. Noting this I then look at available methods and types of contracts. In this evaluation I determine that I have the full array of methods and types of procurement available yet one method only has large businesses available and that method is by case law definition not mandatory. Noting this it is excluded from my choices because per FAR 19.5 a new requirement "must" be set aside if under the $150K threshold or the rule of two applies. I then look to all other available methods and types and settle on a full and open competition, after exclusion of sources, that utilizes one of three methods (RFQ, IFB, or RFP) and results in either a fixed priced or cost reimbursement contract.

In the above process and in the specific case of this thread certain facts are true. The need is a new requirement. FAR 19.10 no longer exists. A task order against a IDIQ is a contract. The existing IDIQ, while legal as it stands, is not an appropriate type of contract and therefore method for the new requirement as it does not provide for the required small business participation.

The conclusion. The IDIQ is legal and need not be changed to comply to new law but as an available procurement type for a 'new" requirement it cannot be used as it does not have any small businesses within its awardees.

Further applying the above to the case at hand charlie created a possible tool to save effort for future new requirements, yet charlie was thrown a curve ball when the demonstration program was done away with by Congress making charlie's tool ineffective and out of date. So what does charlie do with the tool? He could let is languish or T4C it, with either alternative raising its own debate but clearly one fact remains it is not a viable tool to be used if the dollar value of the future needs and/ or the market research for the future needs determines that small business set aside is required for all new requirements that it was intended for.

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