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Blogs

Don Mansfield's Blog

FAR 52.212-1 Tailored for SAP

I recently gave a course on simplified acquisition procedures where I was again confronted with the use of the provision at FAR 52.212-1 Instructions to Offerors--Commercial Items in requests for quotations (RFQs) issued pursuant to FAR part 13. (We discussed this issue in the Wifcon forum before here and here). The problem is that the provision was not designed for use in RFQs under FAR part 13. To begin with, the provision requests "offers"--not quotations--which are different (see the defi
The Wifcon Blog

DIVAD Versus 60 Minutes

Yesterday, Don Mansfield posted an article entitled Lying to Ourselves: Dishonesty in the Army Profession. After reading the digest of the article and bristling at some of the jargon used, I can report on what was written in simple language. It is: under some circumstances Army officers can accept a lie as truth. Why single out Army officers? I won't. The truth is that humans can accept a lie as truth. I've written about that before. The article made me remember an episode of 60 Minutes
Emptor Cautus' Blog

Misunderstanding the Missing Words

This post is not really so much about misunderstanding the missing words, but the misunderstanding that is created by the missing words when read or hear "All contractors must be treated the same" or "All offerors must be treated equally", or such similar sentences. It is the part that should come after, but in many cases does not, that concerns me. In the GAO Bid Protest Annual Report to Congress for Fiscal Year 2014 (B-158766, GAO-15-256SP), November 18, 2014, Susan A. Poling, General Counse
Don Mansfield's Blog

Army Contracting Command Guilty of Noncompliance with a Nonexistent Rule

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 located in DFARS 252.225-7001( a )(3)(ii)(A). DFARS 252.225-7001 is a contract clause entitled "Buy American Act and Balance of Payments Program". The claus
The Wifcon Blog

The Contract for "Pook Turtles"

No, they are not candy; no they are not turtles. However, they did have an iron shell. Pook Turtles were designed by Samuel M. Pook and were the "City Class" of armored gunboats that sailed the Mississippi and its tributaries beginning in early 1862. They were called Pook Turtles because people thought they looked like turtles. The seven ships were the USS Cairo, Carondelet, Cincinnati, Louisville, Mound City, Pittsburg, and St. Louis. The recovered remnants of the USS Cairo now rest at the N
The Wifcon Blog

Why GAGAS Should Make You Gag

For those of you who are not familiar with the auditing world, GAGAS is the acronym for Generally Accepted Government Auditing Standards and it is written and maintained by the Government Accountability Office (GAO). Compliance with GAGAS is mandatory for an auditor during the conduct of an audit and a memo noting compliance with GAGAS should be in the auditor's assignment folder for each audit. Although I was a member of the auditing community during my career with the GAO, I also viewed myse
Emptor Cautus' Blog

FAR Eliminates Truth in Negotiations Act (TINA)

Federal Acquisition Circular (FAC) 2005-73, effective May 29, 2013, eliminated the Truth in Negotiations Act (TINA). Now that I have your attention, the FAC did not eliminate the TINA. What the FAC did was to rename The TINA “Truthful Cost or Pricing Data”. This was just one of a number of changes to the Federal Acquisition Regulation (FAR) that resulted from positive law codifications. Let’s discuss positive law codification of Public Laws 107-217 and 111-350 which were recently incorporat
Emptor Cautus' Blog

Experience is the teacher of all things.

Experience is the teacher of all things. ― Julius Caesar, Commentarii de Bello Civili (Commentaries on the Civil War), (c. 52 B.C.). In a previous Blog, I said: What am I suggesting by that? In acquisitions exceeding the simplified acquisition threshold past performance shall be evaluated, unless waived by the contracting officer. (FAR 15.304( c )(3). In addition to, and separate from, past performance the source selection should evaluate “Experience.” Past performance deals with how
Emptor Cautus' Blog

Is “Neutral” Neutral?

BLUF: No. Or, just maybe, it depends. [For those of you who are unfamiliar with BLUF, it stands for “Bottom Line Up Front”. If you’re required to give presentations to high ranking officials on a repetitive basis, you learn their foibles. Some will listen patiently to your entire presentation, no matter how tedious. Others always jump to the Conclusion slide, just so they’ll know what’s coming. For the latter, we would put the conclusion on the first slide after the title slide to save ti
Don Mansfield's Blog

Section 1331 Authorities: A Primer

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 opportunities. Under Section 1331, Federal agencies may: (1) set aside part or parts of multiple award contracts for small business; (2) reserve one or more awards for small businesses on multiple award contracts
Emptor Cautus' Blog

Comparison of Major Contract Types

Remember the old TV commercials for toys that began, “Be the first on your block . . . ,” and then inserted the name of some new toy, doll, gun or game? Well, you can forget about that in this case. For those of you who have not already done so, I’m recommending that you consider downloading a document that has already been downloaded more than fifty thousand times since published on the web, and nearly four thousand times since it was last updated in January 2014. [As of today, the precise n
Emptor Cautus' Blog

Laxity in Lexicography

In acquisition we have a tendency to use a number of “nonexistent" words and terms. Well, that might be overstating the issue somewhat, so let’s try again. In acquisition we have a tendency to use a number of terms that are not defined in the Federal Acquisition Regulation (FAR), but are in the FAR. I have no particular problem with that. However, I do have a wee bit of a problem when people in our business use terms as if they were in the FAR, even though they are not there. My concern is
Don Mansfield's Blog

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

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 instructions to send the completed surveys to the contracting office. This information is then used to evaluate the offeror past performance. In effect, individual contracting offices have shifted the burden fo
The Wifcon Blog

The Government's Duty of Good Faith and Fair Dealing

The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the ef
Don Mansfield's Blog

Myth-Information: A PWS is not a SOW

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 "performance work statement." Why is this happening? The definition of "performance work statement" (PWS) at FAR 2.101 could not be more clear:
The Wifcon Blog

Offer and Acceptance, Contracting Authority, Etc.

In Thomas F. Neenan, as Trustee of the Thomas F. Neenan, Sr., Revocable Trust, v. U. S., No. 11-733C, August 22, 2013, you are taken through some of the basics of federal contracting. How many basic points can you identify in this 10-page opinion? I've listed those that I identified below: 1. Offer and acceptance, unconditional offer, preliminary negotiations. 2. Change in ownership, death of party, trust agreement. 3. Pattern or practice. 4. Contract specialist's authority, integral
The Wifcon Blog

A Little "Christian Doctrine" For You

It's not a religious thing; it's a contracting thing — G. L. Christian style. We've all heard of the "Christian Doctrine." Here is how one judge of the Court of Federal Claims applied it to Bay County, Florida v. U. S., No. 11-157C, August 14, 2013 — released today. You can read the entire 11-page opinion or you can read the excerpt below. "The government argues that Bay County waived its potential status as an independent regulatory body by including FAR § 54.241-8 in the Sewage Contract —
The Wifcon Blog

Part 2: Too Many Contracting Committees; Too Many Contracting Laws

In my last post on the Wifcon Blog, I proposed a House and Senate Committee on Contracting and Assistance. Why, you might ask? Remember the Clinger-Cohen Act? It was part of the National Defense Authorization Act for Fiscal Year 1996, P. L 104-106. What about the SBIR/STTR Reauthorization Act of 2011? It was part of the National Defense Authorization Act for Fiscal Year 2012, P. L. 112-81. What about the new Limitations on Subcontracting provision that was mentioned on the Wifcon Forum? Y
The Wifcon Blog

The House and Senate Committees on Contracting and Assistance

I had planned to write a detailed article about my plan for the above committees. However, I'm never going to get to it. So, I'm going to try a series of quick posts to get my thoughts published. Don't tell me that these committees will never be formed. I know they won't. Committees and subcommittees are entities run by politicians for politicians. However, I can dream. You can see from the titles of my proposed committees that they would deal with federal contracting and federal assistan
The Wifcon Blog

"A Propinquent Level Of Bureaucratic Service And Consideration"

Imagine quoting on a procurement in which you submitted the lowest-priced, technically acceptable quote. Instead of winning the award, you were told that your quote was unacceptable and ineligible for award because you did not possess the requisite facility clearance prior to award. Although you submitted your facility clearance information to the contracting officer on December 6, 2012, nearly two months later on February 1, 2013, little had been done on it. You protest to the U. S. Court of
The Wifcon Blog

American Apparel Left Me Wondering

GAO supplies us with its contracting rules in bid protest decisions. These rules are repeated and this is one of the reasons I provide key excerpts from bid protest decisions on Wifcon.com's Bid Protest pages. If you read these rules repeatedly, you will remember them. For example, here is a rule on what GAO reviews on a past performance issue. Think "consistent with the solicitation’s stated evaluation criteria" for this blog entry. Recently, GAO's decision in American Apparel, Inc., B-
The Wifcon Blog

Protester Wins Substance Of Protest; Still Loses

In Lockheed Propulsion Company; Thiokol Corporation, B-173677, June 24, 1974, GAO issued its bid protest decision on the Solid Rocket Motor (SRM) Project for the Space Shuttle Program. This decision was issued before the National Aeronautics and Space Administration (NASA) had its first SRM and before it had its first Space Shuttle. One part of the Lockheed protest dealt with the proposed costs for ammonium perchlorate (AP), a major part of the propellant in the SRM. Two offerors, Lockheed an
Don Mansfield's Blog

Should We Criticize GSA?

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 with federal customers more heavily than past performance with nonfederal customers (the draft RFP is available for viewing on FedBizOpps). Kelman says tha

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