bob7947

Contractors  and offerors have the legal right granted them by federal law to protest an award and dispute a contracting officer' decision.  You all know that!  You CANNOT penalize them, for them employing their rights.  If a government agency is going to use any device to punish an offferor or contractor for using their legal rights, you better have a cause that can hold up in some legal forum.

For example, look at this from the Administrator,  OFPP, entitled Protests, Claims, and Alternative Dispute Resolution (ADR) as Factors in Past Performance and Source Selection Decisions.

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contractors should feel free to avail themselves of the rights provided to them by law. Accordingly, please emphasize to your agency’s acquisition personnel, especially source selection officials, that:

1. Contractors may not be given “downgraded” past performance evaluations for availing themselves of their rights by filing protests and claims or for deciding not to use ADR; and

2. Contractors may not be given more “positive” past performance evaluations for refraining from filing protests and claims or for agreeing to use ADR.

Emphasis added.

I hope your evaluations and preformance ratings do not include any type of punisment in them.

On the other hand, if someone is extremely abusive and disruptive, even GAO managed to ban one protester for a year, if I remember correctly.

I remember, by law or regulation, that an agency is not allowed to penalize a company because it protests a procurement or disputes a contracting officer's opinion.  It's probably in law.

This Appropriations decision is discussed by the Architect of the Capitol's Inspector General in the Audits Section of the Home Page.

Architect of the Capitol—Purchase and Use of Motor Vehicles, B-333508, September 7, 2023

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AOC violated the Antideficiency Act when it obligated appropriations for the purchase of a passenger motor vehicle in excess of the fiscal year 2021 statutory price limitation. AOC did not violate the purpose statute when it obligated appropriations for the purchase and installation of motor vehicle accessories on a vehicle for the then-Architect’s use. The then-Architect had statutory discretion to determine that agency appropriations were available for his use of AOC vehicles to carry out his statutory duties, provided that he properly determined that such use was necessary to carry out the emergency functions vested in him by law. However, such discretion does not extend to permitting family members of the then-Architect to use the vehicle. Thus, AOC violated the purpose statute when it obligated appropriations for expenses incurred in relation to the use of AOC vehicles by the then-Architect’s family members. Our conclusions here are limited to an evaluation of the legal availability of the appropriation for the specified use. We recognize that even where we find no violation of appropriations law, an agency official’s use of appropriations can still be wasteful and abusive and fall short of a prudent use of taxpayer dollars.

Acquisition Research Program Newsletter: September 8, 2023

There has been a question asked of the original poster.

Rule 17 is in effect.

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17.  Original posters must not disappear after they post a question.  Disappearing makes it impossible to provide clarifications of the original post so that others may respond intelligently.  It is normal for the original poster to be asked for clarification.  The Orginal Poster has 5 calendar days after the original post to answer any questions.  After that, the Topic will be locked.

This morning CMS identified the first 10 drugs that would be subject to contract negotiations for prices in the Medicare program.  Is there anyone here invoved in this new program?

I was thinking this phrase comes from another phrase "two bites at the apple."  My memory is telling me that may come up in sealed bidding.  A bid, unlike an offer is meant to be final.  You don't get a second bite at it.

GAO uses the same logic as in "claim preclusion."  They just don't call it that (at least I never noticed it.)

So, where does "two bites at the apple" come from in a judicial proceeding?"  I looked that up.  "The first use of “two bites at the apple” in a judicial opinion did not come until the 1922 case of McCoy v. Tolar, in which the Supreme Court of Mississippi held that a party was not entitled to a new trial just because they had failed to offer available proof at the first trial."  (Source: Noah Chauvin's How Lawyers Eat Apples.)  There you are:  Legal theory is based, in some part, on idioms. 

Ever hear of "Claim preclusion?"  Check it out here.

I don't know but here is A Guide to the Rulemaking Process by the Federal Register.  

See The Kace Company, LLC, v. U. S. and Cellebrite, Inc., No. 23-387C, August 23, 2023.

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This case is governed by two maxims: “Late is Late” and “Rules are Rules.” The integrity and fundamental fairness of government contracting require a level playing field established through clearly stated and uniformly enforced rules of engagement. The facts presented in this pre-award bid protest, documented in the administrative record, do not justify overturning the agency’s decision disqualifying plaintiff from further award consideration; nor do they merit remanding this matter for further evaluation. Each avenue of relief advanced by plaintiff leads down the improper path of excusing plaintiff’s failure to timely submit the company’s revised proposal. Throughout this tortured procurement, the government has taken multiple corrective actions in an effort to salvage the competitive range. There is no basis in fact or in law for the Court to direct further corrective action.

ULTIMA SERVS. CORP., Plaintiff, v. U.S. DEP'T OF AGRIC., et al., Defendants., 2:20-CV-00041-DCLC-CRW, July 19,2023.

Court's Conclusion:  

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The Court DECLARES that Defendants' use of the rebuttable presumption violates Ultima's Fifth Amendment right to equal protection of the law. 

SBA Releases Interim Guidance to 8(a) Program Participants in Light of Ultima Servs. Corp. v. Dep’t of Ag. ruling.

I've noticed that posters believe it is easier to add raw links to posts instead of descriptive links.  Take a look.

FAR 13.004 Legal effect of quotations. or https://www.acquisition.gov/far/part-13#FAR_13_004.

To add a link all you have to do is add the text 13.004 Legal effect of quotations  Highlight the text with your cursor, dump the text into your post, click the "link" icon, dump the https info into the space, and save.

Below is Rule 16.

16.  Abbreviations are to be kept to a minimum--preferably none at all--so that others can interpret a post and respond to it intelligently.

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The Procurement Integrated Enterprise Environment (PIEE) is the primary enterprise procure-to-pay (P2P) application for the Department of Defense and its supporting agencies and is trusted by companies reporting over $7.1 billion in spending.

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Clause Logic Service (CLS)

CLS is a web-based service that maintains a centralized repository of all FAR and DFARS provisions and clauses that is able to interface with any contract writing system (CWS) or be directly accessed by a user via PIEE. The use of CLS simplifies the contracting officer’s and contract specialist’s clause selection process through a series of questions and answers with hyperlinks to all the related prescriptions.

I've read the Original Post again and it may be that the Procurement Integrated Enterprise Environment (PIEE) and/or the Clause Logic System (CLS) might have a glitch in it.

It looks like the OP got lost.  This violates Rule 17!

17.  Original posters must not disappear after they post a question.  Disappearing makes it impossible to provide clarifications of the original post so that others may respond intelligently.  It is normal for the original poster to be asked for clarification.

I will lock the Topic shortly.

Joel:

Why do you respond with a citation to a federal regulation?  I stated the Public Law and where it is in the U. S. Code?

Title 15, Chapter 15A, 637(d)( 8 ) states

"The provisions of paragraphs (4), (5), and (6) shall not apply to offerors or bidders who are small business concerns."  (4), (5), and (6) are the requirements of P. L 95-507's small business subcontracting program.

Let's see if this link works .  It works.  You just have to scroll down.

The purpose of a subcontracting plan is to get money into the pockets of small businesses.  Since a small business prime is small, why would anyone think that the small business needed a small business plan.  It's idiocy.

On August 10, 2023, I posted a very large (812 pages) final Davis-Bacon Act regulations.  The Department of Labor (DOL) posted it in draft format to their site on 8/8/23.  You saw the draft format.  When DOL does that, usually they publish it in the Federal Register the same day.  I searched the Federal Register back a few days and could not find it.  I posted the draft version in case I missed something.

Why the DOL pulls this nonsense, I don't know.  Tonight, the Federal Register notes that it will be published on 8/23/2023.  If it is published on that date, the 60-day effective date goes into effect.

Last night, I received a note on this topic.

Before that, the power went out here and was restored this morning.

This morning, the first thing I did was add Federal Acquisition Circular 2023-05.  

I have locked this topic until I can look at it.

Go to the second line from the top here and click "Blogs."  You will find 5 blogs from 5 of the top contracting law firms in the United States.

Every day view the Wifcon.com Home Page.  You will find all the FAR and DFARS changes that are published that day.  You will also find Agency Supplemets to the FAR System when they are published.  It has been for 25 years and still is the fastest way to find those changes.  

Deviations From The FAR: Policy And Practice by Donald E. Mansfield

I don't know but I searched for Unmanned and Small Combatants and found this.  Check the Executive Director. 

The item is from the Navy site.  #2 is the way the Navy explained it in the first paragraph of the article which gives the reader some hope.  When the Navy wrote the heading of the article it used an abridged version that wasn't as bad as #1.  I thought the writer of the article did a decent job of explaining as well as he/she could.

PEO is the only acronym that I recognized.

Try this one on:

#1

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The (PEO USC) announced that the (RCIED) (JCREW) (I1B1) program has achieved full operational capability ahead of schedule.

Maybe this makes some sense:

#2

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The Program Executive Office for Unmanned and Small Combatants (PEO USC) announced that the Joint Counter Radio-Controlled Improvised Explosive Device (RCIED) Electronic Warfare (JCREW) Increment One Block One (I1B1) program has achieved full operational capability ahead of schedule.

Since I visit many sites every night, I've seen this quite a bit from every Administration -- Democrat or Republican-- over the past 25 years.  I cannot amend an agency Press Release and that is one of them.  Last night, I visited a site that I usually use but couldn't use the entry because it was blaming the Republican Party for something or other--and that was a non-government site.  I make judgements on whether content outweighs the political nonsense every night.  It's frustrating and it takes me longer to get done.

In the questioned news release, I decided that the statistics outweighed the "Biden-Harris Administration" wording.  SBA does it a lot, probably more than others.  So, when you see an agency press release like that, you can be assured that I saw it before you and made a judgement that the content outweighed the political baloney.  In other cases, you won't see an article, because I judged it offensive to a political Party.

I am writing a series of blog entries on my 3 Months in Huntsville, Alabama helping to review the source selection for the Space Shuttle's Solid Rocket Motors.  I have finished Part 3 entitled Lockheed Propulsion Company, Thiokol Corporation, B-173677, June 24, 1974 - Part 3: Selling the Program.  I should be done Part 4 in a week or two -- depending on how much anger I can hold back while I write Part 4.  When you read the excerpt I took from the RFP, you should have an idea of where I am going with it.  That requirement will be a highlight of Part 4.

I'm not asking you to read the article so it gets views.  I'm asking you to read Part 3 and then Part 4 - when its done -- to get you angry and try to prevent it from ever happening again.