Jump to content

Don Mansfield's Blog

Army Contracting Command Guilty of Noncompliance with a Nonexistent Rule

Posted by Don Mansfield, 01 December 2014 · 744 views

In a recent DoD IG report, the Army Contracting Command was cited for its failure to perform "component assessments" on 23 contracts subject to the Buy American Act (see DoD IG Report No. 2015-026 ).  The report states as follows:

Not having ever heard of such a requirement, I checked the reference to this requirement, which was allegedly locate...

Section 1331 Authorities: A Primer

Posted by Don Mansfield, 09 April 2014 · 1,005 views

     Section 1331 of the Small Business Jobs Act of 2010 (Pub.L. 111-240) recognizes the significant opportunities that exist to increase small business participation on multiple award contracts and the ability of set-asides— the most powerful small business contracting tool—to unlock these opportun...

Do You Have an OMB Control Number for that Past Performance Questionnaire?

Posted by Don Mansfield, 04 March 2014 · 1,324 views

                In competitive acquisitions, it is common for solicitations to require offerors to conduct surveys of their past and present customers using standard questionnaires developed by the contracting office.  Offerors are typically instructed to send the questionnaires to their customers with instruct...

Myth-Information: A PWS is not a SOW

Posted by Don Mansfield, 19 December 2013 · 2,351 views

I have recently noticed an interesting phenomena regarding how the term "statement of work" is being used and understood in practice. If what many of my students are being taught in their contracting offices is any indication, "statement of work" (SOW) has come to mean a work statement that is not performance-based--the opposite, if you will, of a "perfor...

Should We Criticize GSA?

Posted by Don Mansfield, 21 May 2013 · 1,944 views

In a recent blog post, Steve Kelman took issue with GSA for the way they intend to evaluate past performance under the One Acquisition Solution for Integrated Services (OASIS) procurement (see “GSA is Saying What? ").  Specifically, the evaluation scheme in the draft request for proposals (RFP) shows that GSA intends to weigh past performance wi...

Are Government Personnel Much Different Than Contractor Personnel?

Posted by Don Mansfield, 15 February 2013 · 1,636 views

This morning I read two different threads in the Wifcon forum.  In the first thread, the discussion centered on late Government payments.  (See “Significant Delays in voucher review/approval ”).  Some of the participants shared stories of how the Government does not consistently respect contractual payment due dates.  Because some contractors...

The Incredible Shrinking P

Posted by Don Mansfield, 02 October 2012 · 2,331 views

I read a lot of rules—proposed rules, interim rules, final rules, second proposed rules, second interim rules, etc.  In fact, I decided a year or so ago that I would read all new rules in the Federal Register  that affect the FAR or DFARS (I’m only a few rules behind as of this writing).  In my reading, I noticed a strange phenomenon that went...

The Impending Exodus of "Experienced" Contracting Personnel: Crisis or Opportunity?

Posted by Don Mansfield, 20 January 2012 · 4,697 views

It seems that every few months we see a new article, report, or hear testimony predicting a mass exodus of "experienced" 1102s from the Federal workforce.  Citing workforce data, the conclusion that is commonly drawn is that a "crisis" will result.  If we just look at numbers it would seem that this would be a reasonable conclusion.  However, has anyone given any thought to the caliber of the 1102s that are leaving the Federal workforce and those that are entering?  Do we really need one new 1102 for every 1102 that leaves? Consider the fact that one must now have a college degree to even be considered for an 1102 position, whereas most of the "experienced" 1102s that will soon be leaving did not have to meet such requirements.  Many "experienced" 1102s entered the Federal workforce as clerks, typists, secretaries, etc., and stuck around the organization long enough to move into an 1102 position.   That's not to say that these folks did not work hard or that they don't deserve their positions.  I'm sure each office has its own success story to share in this regard. In my experience, I have worked with "experienced" 1102s and I currently teach newbie 1102s.  To generalize, the newbie 1102s are smarter, more motivated, and have more respect for the laws and regulations that govern their agency's acquisitions.  Give me an office full of 1102s with less than 10 years of experience and we will work circles around an office of "experienced" 1102s with twice the staff.  Our processes will be more streamlined, our employees more productive, and our acquisitions fully compliant with law and regulation. Nothing is more discouraging than to hear stories of how newbie 1102s return to their offices after training, intent on making the necessary changes to ensure that their acquisitions comply with the FAR, only to effectively be told by "experienced" 1102s "I don't care what the FAR says, this is the way we've always done it and we're not about to change."  I say good riddance to those folks.To be fair, there are some "experienced" 1102s who are excellent--the Government will suffer when these folks leave.  However, I would not place the majority of "experienced" 1102s in this category.  When I hear about the impending exodus of "experienced" 1102s and the ensuing crisis, I'm reminded of a line from an REM song..."It's the end of the world as we know it...and I feel fine."  How do you feel?

Savvy or Unethical? Should the Federal Government be a Phantom Bidder in Reverse Auctions?

Posted by Don Mansfield, 13 January 2012 · 5,123 views

I recently heard from a contractor regarding an experience he had with reverse auctions.  A federal agency was conducting a reverse auction using FedBid and he decided to compete (FedBid, Inc., provides a service whereby federal agencies can conduct reverse auctions).  Although he submitted several bids, he ultimately lost the reverse auction.  When he checked to see who had won, he was surprised to see that the federal agency that was in need of the required items was the low bidder.  In other words, the federal agency was submitting bogus bids in an effort to get the contractor to reduce his bid price.  The federal agency then contacted him and offered to purchase the items from the contractor at his lowest bid price.  Feeling that he had been duped, he told them to get lost.The tactic employed by the federal agency, called phantom bidding, is not new.  Many view the practice as unethical while others see it as a legitimate tactic.  In regular auctions, the legality of seller participation in bidding varies from state to state.  For those states that allow it, sellers typically must disclose that they reserve the right to participate in the bidding. In any case, should the Federal Government be allowed to place phantom bids in reverse auctions?  Would your answer be different if the disclosure of the practice was required prior to the reverse auction?

Small Business Programs Decision Table

Posted by Don Mansfield, 08 June 2011 · 3,061 views

NOTICE: The table originally posted contained an error in Step 4 of the HUBZone Program Decision Table.  The entries for "Yes" and "No" were reversed, which implied that a HUBZone sole source was only permitted below the simplified acquisition threshold.  In fact, the opposite is true.  This has been corrected.I created a Small Business Decision Table to help navigate the new small business rules contained in the FAR. Note that there is a lack of clarity on some issues in the interim rule on Socioeconomic Parity (implemented at FAR 19.203) and, as a result, I had to make some assumptions until these issues are clarified (hopefully) in the final rule. Specifically, I assumed that when the FAR says that the contracting officer "shall consider" course of action A before proceeding with course of action B, that means that course of action A would be required if the conditions permitting both course of action A and B were present. For example, FAR 19.203( c ) states:QUOTE Above the simplified acquisition threshold. The contracting officer shall first consider an acquisition for the 8(a), HUBZone, SDVOSB, or WOSB programs before using a small business set-aside (see 19.502-2( b )).I interpret that to mean that if a contracting officer can satisfy a requirement using the 8(a), HUBZone, SDVOSB, or WOSB Programs, then she must do so?she has no discretion to bypass these programs and proceed with a small business set-aside because she thinks doing so would be in the best interests of the Government.In public comments submitted to the FAR Councils, the Professional Service Council criticized the use of "shall first consider" at FAR 19.203( c ) as follows:QUOTE Section 19.203( c ) mandates that contracting officers "shall first consider" socioeconomic programs, in effect creating a disparity within the small business set-aside programs. However, the regulation fails to define what constitutes adequate consideration, or how the contracting officer is to demonstrate it?...In the absence of a clear standard for "consideration," it is possible for contracting officers to construe this coverage as a mandate to use socioeconomic program acquisition programs ahead of and to the exclusion of other business categories. By removing the statutory preference for HUBZone awards, we do not believe that Congress intended to create another set of preferences through regulation.I would prefer that the FAR Councils not attempt to define "adequate consideration," but instead cut to the chase. If the intent is to require use of the 8(a), HUBZone, SDVOSB, and WOSB Programs if possible, then state the rule using unambiguous language. For example, FAR 19.203(d) states:QUOTE Small business set-asides have priority over acquisitions using full and open competition.Nobody is going to argue over what that means.Lastly, there is an error in FAR 19.203 in that it implies that the SBA rule that once a requirement is in the 8(a) Program it must stay in the 8(a) Program only applies over the simplified acquisition threshold. That's wrong?it applies regardless of dollar value. The SBA regulations make no such distinction regarding dollar value. I'm told that this will be corrected in the final rule.