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This is a 38-page advisory opinion. I will post it on the Home Page--in its usual place--tonight. However, I'm off to a 2-hour Tang Soo Do class now. Fluor Intercontinental, Inc.--Advisory Opinion. Edit: This November 2019 opinion was just released to the public today.

Today, GAO has returned to the old format on its web page. All the perfections have been removed. Maybe they have temporarily withdrawn the effort until it reaches its highest state of perfection. (I know there are no degrees of perfect but rubbing it in is so soothing.)

Here ia a letter from the Professional Services Council about Beta.Sam.gov. You need to click the one line on the page to download the file.

During the past week, GAO has built and published a new web site. Unfortunately, the authors appear to have broken the links to their decisions, reports, etc. It appears this is affecting decisions from mid-2019 that are posted on Wifcon.com. I don't know if they are planning to relink their decisions or not but it will take some time and complaining to sort this mess [aka as a government perfection] out.

Here is the latest article entitled: Amazon wins injunction in US 'Jedi' contract fight. She [the COFC judge] also ordered Amazon to set aside $42m for costs if future proceedings found she was wrong to have issued the injunction.

Productivity.

Here is another article. This one from Bloomberg entitled: Inside the Nasty Battle to Stop Amazon From Winning the Pentagon’s Cloud Contract.

I've found another article by Steve Schooner entitled: Enhanced Debriefings: A Toothless Mandate?

I found this article on Fortune Magazine about the JEDI procurement. It is entitled: Why Amazon wants to depose President Trump about cloud computing. It may be of interest.

Jacques: Taking a different approach, you can ask why are there so many dismissals in disputes over contracting officers' final decisions? See the CBCA and then you have to click the decisions for ASBCA. You figure that out. The Courts can overrule the Boards and then overrule each other there too.

the protestor is seeking COFC to review the agency's override decision

First look at 4 CFR 21.6: Withholding Award, Suspending Contract Performance, Override of Stay, Injunction B first got a CICA stay to stop work; which the agency defeated with its urgent and compelling and public interest talk to continue work; then B wanted to continue stoppage of work and went to the COFC which could stop work. The COFC has 4 thresholds it reviews to issue an injunction. It doesn't take an injunction lightly. In my scenario, It found something wrong with the proposal evaluation and determined an injunction was needed to stop performance. I'm assuming it did find that something. A could appeal the COFC opinion to the Court of Appeals for the Federal Circuit which could overrule the COFC opinion and knock down the injunction. At first, I was trying to find a way of defeating Contracting Blackmail. I couldn't eliminate the possibility in it entirety because of the COFC. Then you have the CAFC that can reverse the COFC. This is absurd. In the real world time is money. The longer B has avenues to stop contract performance, the more B has the possiblity of someone paying him off to go away and withdrawal court action. I've been a proponent of removing the courts from hearing bid protests. This seems to support their removal--if my scenario is possible. With GAO only in the bid protest arena, a CICA stay is granted until the GAO decision. If GAO denies the protest it's over. The agency can still ignore the stay and continue performance. There just won't be anyone hearing protests over the stay.

In 1991, there was a bill in the House to amend FPASA and report on Contracting Blackmail. It passed the House and died in Senate. Other than FASA, I didn't find anything else.

I was trying to come up with a way to defeat blackmail -- payments from the government to an offer to avoid a protest. Watch it fall apart. (This won't affect an offeror from blackmailing another.) Offeror A and B were competing on an important procurement. Offeror A is notified it looks like the apparent winner and B is an also ran. B threatens the agency with a GAO protest. The agency realizes it was a close competition and believes it followed all the rules. The agency tells B that the requirement was urgent and compelling and in the public interest to get its needs supplied but A as quiuckly as possible. B protests to GAO under 31 U.S. C. § 3553(c)(1) which causes a CICA Stay. The Agency awards the contract to A and uses its finding of urgent and compelling and in the public interest under 31 U. S. C § 3553(c)(2) to continue performance on the contract. Offeror B goes to the Court of Federal Claims for a temporary restraining order and preliminary injunction. The Court of Federal Claims goes through its procedure and grants the preliminary injunction. All work stops on the contract. Checkmate. How do you solve this?

I tried to write something meaningful but this is as far as I got. I don't have the time to go back so it ends, like this. Formefed wrote: I had forgotten all about Fedmail. I remember the March 1990 report mentioned above: ADP Bid Protests: Better Disclosure and Accountability of Settlements Needed, GAO/GGD-90-13. The report was requested by the Senate Chairman of the Subcommittee on Federal Services, Post Office, and Civil Service; Committee on Governmental Affairs. Back then, the GSBCA heard ADP bid protests. That bid protest authority died with the abolishment of the GSBCA. Fedmail allegations focused on ADP procurements. I have no reason to believe that this issue is not anywhere else. GAO used contemporary press accounts to define what Fedmail is. GAO did find that some Fedmail was occurring on about 10 percent of the awards and recorded the monetary amounts paid by the government and apparent winning offeror. However, monetary payments do not consider a losing offeror blackmailing an apparent winning offer by asking for a piece of the action. Fedmail/blackmail does, to some extent, exist in federal contracting. GAO Recommended that In the Federal Acquisition and Stremlining Act of 1994 (FASA, P. L. 103-355) Section 1436 states When the GSBCA was abolished, that was the end of it. I looked at GAO's annual reports and could not find any reporting of Blackmail payments.

I've added a poll. You can vote there to keep it or have me remove it.

Jacques: Here is the original post that started our rethinking. I provided the bolds to show the items that begged questions. I have the benefit of hindsight, and some of my questions were already asked. I see the OP is looking for legal advice which could lead to a dispute and trips to Boards and possibly courts. As soon as I see this, I need can you tell us the GSA schedule and contract. could the government retrieve and return the files under the contract, Why did the government notice missing files at the last moment, how did the government find out that the files were lost, If the GSA schedule contract is online, maybe we could lead the OP to the correct clause. Maybe we will find out that the files were retrievable by the government and the government had/didn't have a system to account for retrieved and returned files. In the end, we may be able to point the finger at whoever was monitoring the ins and outs of those "files" for the government. If the OP is a contracting officer with the ability to make decisions, this may save the OP a lot of grief with the few suggestions/ideas we make. I'm guessing these files were in long term storage with a contractor and they could be retrieved and returned by the government. They did have a retrieval and return process set up. Files may have been (1) retrieved for use and with that user--so they were not missing, (2) misplaced by the contractor when the government returned them, or (3) contractor employees ate lunch on them messed them up and deep-sixed them. This is a toss-up and the OP may have to conduct an investigation. Maybe we can give the OP some thoughts about where to look. In the end, we cannot tell the OP what to do because we don't know who caused/is responsible for the missing files. Our final response, Sorry, we gave you some ideas but we cannot tell you what to do. That's a contracting officer decision. The first questions I wrote took a few minutes. If I didn't get any answers, I just wait. I cannot repsond with any intelligence with what I have from the OP. As I wrote, the government may be at fault or the contractor may be at fault. Even if the fault is determined by the OP, we do not advise what to do. This is a contracting officer decision.

The folllowing is my draft proposal on Members responding to an OP's initial post. Feel free to provide comments. Carefully read the initial post. If you believe the OP's post requires more information or is unclear, ask for the information that you need to provide useful information. Once you believe you have sufficient information, respond to the OP's initial post. (There are no time limits. However, if you are not getting a response in a reasonable amount of time to your request, PM me. Remember, the government authorizes flex time. They may be on a 4-day week, a 5 and 4 day pay period, etc.) If a Member has a request for information or clarification pending from the OP, please wait for the OP to respond. (This should prevent members from climbing over each other to respond to the OP's initial post.) Once the OP responds, all Members may join the discussion. Thanks C Culham. I was writing this when you posted. I think your idea may be too complicated for the software to handle it. Take a look and provide any comments to my proposal. Keep in mind the flow of discussion between the OP and Members. If it looks like I am starting a one-on-one discussion between OP and and a Member, that is not what I am doing. The first Member that posts to an OP starts the discussion. If there is a request for information to the OP, that puys on the brakes for further discussion unitl the OP provides additional information. I'm sure this isnt going to be pretty at first but let's see how it works. If it doesn't make sense, let me know.

I will give it a try again tomorrow. What I have been noticing is that a federal employee registers posts a question, I appprove their account and their post automatically appears. If they get some good information, they are happy, and go back to their work. They may reappear a year later. It is very rare that somwone registers to discuss a variety of issues. The young person that wants to debate a contracting issue online may be non-existent. Even with an alias as a display name, which I strongly advise, a person still feels the need to protect that identify. So the hightest level here is probably someone willing to have a brief discussion, be satsfied, and disappear, only to reappear a year later for another brief encounter. Our world has changed dramatically since I was young. For example, long ago the GAO Law library on the 7th floor of the GAO building was packed with attorneys who had the U. S. Code and Administrative News volumes, U. S. Code annotated, etc., all over their desks in an effort to claim a desk. Woe was the attorney that disturbed another's desk. Sometimes I had to sneak off with a volume to read at my desk in another part of the building. If an attorney saw me, it was sure punishment. Then Lexis/Nexis appeared. It got down to one attorney who still wanted to feel a volume in his hand and me in the law library. Then he left because techmology allowed others to get done their research faster and better. Since General Counsel would only allow its attorneys to use Lexis/Nexis I was left with the librarians who once did something. I continued for awhile because I could do everything up there. It was wonderful. I could order a legislative history of the Federal Property and Administrative Services Act of 1949 (FPASA) and I would have volumes of the legislative history delivered to me in shopping carts. Newspaper articles were pasted in the volumes, every bill leading up to to the final law, every congressional report, etc. By the time I finished with the contents of those shopping carts, I most have been the world's expert on FPASA for at least a day or two. I did the same for the Truth in Negotiations Act, CICA, and other oieces of major contracting legislation. I remember reading about Carl Vinson's 50th aniversary in the House. They gave him a colored TV. Now he's got an aircraft carrier. Back to my story. Then we were all given personal computers at our desk. It had a 386 chip. We were hooked up to the internet. Goodbye Law Library. I still used the Law Library's microfiche reder to research things on my own time. Towards the end of my career, I went for a walk up to the Law Library and found cobwebs on things. I got my own Dell 386/SX. Now I have 2 PCs down here and 1 upstairs, a laptop in the bedrron and a tablet, and a smart phone. Even the Corvette tells me off when it's upset. Now, when I go to youtube to research something I look at the time of the video. If it's 30 minutes, I'm upset. I want it in 3 minutes. Give it to me fast. When you look at the over 1,000 pages of Wifcon.com--excluding this forum--you see the GAO Law Library mentality in me. I still update the NDAAs but I could not repeat what is there. Now, I want it fast like anyone else. In short, you are seeing about 30 years of progress and what it has done. Get it to me fast.

This is a modified version of the disclaimer at the beginning of the Terms of Use. I will add it to the Terms of Use by the end of today. C Culham. I considered your post. This will be placed directly under the Terms of Use and just before "Reading the Terms Of Use is required to use this forum." I had trouble with the second sentence but settled on that. It will be added by the end of the day. Just don't start giving any medical advice.

H-2-H: Yes, Ibn is gone at Ibn's request.

C Culham: I understand. However, I received a PM (little letter at top right of page) from a user that thought we provided legal advice. Since it is a PM, I cannot tell you more. I've, posted an item of what I'm going to do just above your post. PS: Anyone here trust "Hickok45?" How about "Paul Harrell?" They are in a different field than contracting. They do have a level of competence in their field similar to some of our posters. I think WE have to go beyond common sense.

I have several things for this morning: I will be posting a proposed paragraph covering professional services, incuding legal and accounting services here for your public comment. When final, it will be posted under "The Instructions and Terms of Use" forum under the category Terms Of Use before the words "Reading the Terms Of Use is required to use this forum." We have advertisers who are providing these services and advice. I've started streamling the Wifcon.com Forums and Categories. The Section 809 category will be eliminated with the Panel's reports placed in the Publications Page where OFPP Pamphlet, Gordon Rule's book The Art of Negotiationl the Commission on Government Procurement reports, etc. Something will be done with any discussions. We have over 6,000 registered accounts with some being duplicates. I approve all accounts personnaly in an attempt to keep the spammers out. If this wasn't done, I estimate that there would be about 60,000 to 100,000 registered accounts. The internet is a dangerous place. With 6,000 accounts, we should have more posts every day. I will start another topic seeking answers about why the posts are so few. As Administrator of this form, I can see the agencies, companies, etc. who are online viewing our forums. This information in hidden from everyone else and I do not provide it to anyone. There are many, many, many, that are viewing but not posting.

Before Ibn left, he found a definition of legal advice. I am providing it for everyone. I will use that in a future statement for use on Wifcon.com. Thank you Ibn.