Moderator

Variety may be the spice of life, but in the law—and for trial courts, litigators, and anyone having to comply with particular legal rules—we crave uniformity, consistency, and predictability. Judges also try their best to get the correct outcome, although at least one party is almost certain to disagree that such goal has been achieved in any particular case. Since 2006, I have been on a journey to get the “interested party” standing question right. This is a threshold issue in so-called “bid protests” before our court. But my effort to understand and apply the law, as of late, has resulted in what one might call judicial whiplash. If you're guessing that my most recent source of neck pain is Percipient.ai, Inc. v. U.S., ——— F.4th ———, 2024 WL 2873163 (Fed. Cir. June 7, 2024), you're right. The winding road to our jurisprudential destination—and where are we, precisely?—is worth retracing as it illustrates the uncertainty the bench and bar often face when a U.S. Court of Appeals for the Federal Circuit panel decision breaks new ground or heads off in an unexpected direction. Please read: Take it to the Banc: A General Plea for Increased Consistency and Clarification by Hon. Matthew H. Solomson, Judge, U.S. Court of Federal Claims.

Recently, I read another example of courts expanding their involvement in the contracting process. When I went back to post it here, I could not find the opinion. Here is the gist of it. It may have been the CAFC reviewing an opinion by the COFC. Anyway, the court concluded that to protest a debarrment action, a protester must use a federal district court. I didn't have time to check the judge's reasoning. My position is that all courts must be removed from the federal contracting process. That is going to require sifting through the words in the Tucker Act, etc. I believe there should be an opportunity to appeal any decision or opinion after we eliminate the courts from the process. In the case of a GAO initial bid protest decision, it would go to GAO for reconsideration as an appeal - by another procurement attorney. I the case of a dispute, if goes from a contracting officer's final decision to one of the Boards of Contract Appeals for any appeal--and that's it. Yeah, there is more than two BCAs but that's ok. We don't need courts searching for more work for other courts. Once we get rid of the courts, we can put page limits on decisions/opinions.

It is a longstanding belief that effective competition yields best value contract pricing and quality. And it is generally believed that clear communication between buyer and prospective sellers is essential for effective competition. If those beliefs are true, then we must question whether the Government is getting effective competition and best value in its procurements. Let's consider a simple case. Please Read: Simplification, Reform, Streamlining, and Innovation: The Government Is Immune To Those Things by Vernon J. Edwards

I'm surprised this opinion has not drawn much attention here. It's 59 pages and is from the Court of Appeals for the Federal Circuit. From an entry by Blank Rome LLP that explains the above opinion. Open the Floodgates: Divided Federal Circuit Panel Expands Access to Court of Federal Claims.

I found nothing to support the above. However, I wasn't born yesterday.

If anyone can find the contract that is expiring early, please let me know. I'd like to see the justification for ending it. Thanks. _____________________________ 6/29/24 The new solicitation provides for a 1 year base period and 9, 1-year options. With that in mind, I assumed that one of the options on the current Maximus contract was not exercised. Apparently, that is correct. In the current solicitation, there appears to be a Q and A for offerors on the current solicitation. Q and A #70 states: Q and A # 72 Q and A # 73 Q and A # 90 Q and A # 91 Q and A # 92 Q and A # 93 Q and A # 94 Q and A # 95 Q and A # 96 Q and A # 97 Q and A # 98 Q and A # 99 It appears that the current Maximus contract may be: # 75FCMC22C0038 I assume there must be an explanation somewhere why the options were not exercised. If someone can find it, please post. I'm going to check the remaining Q and As now. Also, it would be interesting to see the latest award fee report on Maximus. The contract type is a CPAF.

This is the current solicitation. 75FCMC24R0010 This is Maximus' current protest. The LABOR HARMONY AGREEMENT is at H-16 or p. 64 of the solicitation.

I've read this article twice. In my opinion, it is a poorly written something trying to reach a conclusion with hearsay supporting allegations of something or other.

Under Review.

This topic is now subject to Rule 17 and will be locked on 6/14 unless the OP answers questions posed.

Did you see some contracting effort that was well done? Tell us about it. Did you see some contracting effort that was done badly? Tell us about it and tell us how you would make it better. Did you see some contracting effort that was done so ugly that you hope you never see it again? Tell us about it and be a hero and improve it. In the title of your Topic (post), state wheter it is Good, Bad, or Ugly so we can tell how you feel about it.

Formerfed: GAO lists 360 "actions" against that solicitation. I assume that those actions are protests and many of the protests were sustained (I seem to remember over 60 sustained protests.) The solicitation was a GWAC which requires OMB approval. I can think of two ways for GAO to deal with all these protests. 1. Where a number of dismissed or withdrawn protests complain about a similar issue, GAO (if the courts are eliminated) could consider whether a potester or protesters actions undermine the integrity and effectiveness of our process and suspend the protesters from submitting protests in the future. 2. Since this is a GWAC approved by OMB and there are so many sustained protests GAO may wish to recommend that OMB withdraw its GWAC approval from the issuer of the solicitation.

1. The Clinger-Cohen Act of 1996 authorized Government-wide Acquisition Contracts (GWACs) through section 5112(e) of the act, which is 40 U.S.C. 11302(e). GWACs are contracts for information technology (IT) that are established by one agency for use across the government. They are pre-competed, multiple-award, indefinite delivery, indefinite quantity (IDIQ) contracts that agencies can use to buy IT products and services. Once we had 3 central suppliers: GSA, DLA, and VA. Now it's a free for all. Of course, OMB must give GWACs its blessing and they've given out many blessings. 2. On that GWAC, the COFC is now hearing claims. In the past week, a COFC opinion was being held up by a District Court. Recently, I seem to remember a case involving other transactions. I've always considered protests and disputes as adminstrative actions. It's time for Congress to take action and ban federal courts from hearing anything that deals with a procurement contract or something that looks like a procurement contract. I agree with Vern. 3. From a GAO decision: It's time for GAO to meet with it's Congressional bosses, explain this procurement, and show some guts. PS: Please do not name the protest that the above quote comes from. I left it blank intentionally.

The online notification is what I was trying to find. It should work because it ends up with GSA. When I notified GSA of a mistake in the FAR for correction, it was done by the next FAC. I did that in the 1980s. I suspect it would be corrected in the same way in the Technical Amendments area.

In February, Ralph asked what purpose the protest process served. See The Protest Process: What Purpose Does It Serve?, 38 NCRNL ¶ 10. In this Postscript, I ask what damage it does. My answer is that it is a drag on an essential activity of our Government, the procurement of goods and services. Our Government relies on contracts and contractors and the goods and services they provide, and the protest system is an impediment. It impedes procurement in three ways. First, protests are expensive from the standpoint of total system cost. Second, protests delay procurements, which affects agency operations. Third, fear of protests and attention to protest “case law” stupefies the procurement workforce and encourages them to adopt inefficient procurement practices. Please Read - Postscript: The Protest Process.

Vern: I did a search for the word acquisition in Public Law 96-83 and found the above. Apparently, Congress decided to move FAI to OFPP and directed by the Administrator, OFPP.

Joel: No. It was an effort to fuse the Defense Acquisition Regulation (DAR) with the Federal Procurement Regulation (FPR). I remember checking similar parts of the 2 regulations and commenting on how OFPP had put the two together. Today, the Defense Federal Acquisition Regulation Supplement (DFARS) may be larger than the FAR.

Vern: I happened upon a hearing from May 1979 on H. R. 3763, to amend the Office of Federal Procurement Policy Act. I assume the Bill went nowhere but it gave Congressman Jack Brooks, one of the Major Players in government contracting, a chance to sound off. At the time of the Hearing, OFPP was trying to consolidate the FAR. That was a mess but it was finally done. OFPP also was trying to follow up on the Commission on Government Procurement's many recommendations. GAO issued several reports following up on whether OFPP was following up on them. Those efforts finally died a quiet death. I copied an excerpt from that hearing showing one low prority issue and how it was handled. For those who don't know, Elmer Staats was the Comptroller General of the United States.

This is subject to Rule 17 and will be locked this weekend unless the OP returns.

The Federal Government primarily categorizes its acquisitions as supplies, services (other than research and development), research and development (R&D), and construction. The Government acquires services because it has chosen to rely on contractors to do much of the work it must do for the American people. According to the Federal Procurement Data System (FPDS), services accounted for the largest categorical share of the Government’s contract obligations in Fiscal Year 2023, and professional services other than research and development accounted for the largest single share of service obligations ($108.6 billion).1 But while the Federal Acquisition Regulation (FAR) provides general definitions of supplies, construction, applied research, and development,2 it does not provide a general definition of services. See Contracting For Services: Part I—Conceptual Definition And Model by Vernon J. Edwards

This is subject to Rule 17. There are several questions and no response by the OP. I locked the topic.

Years ago, I spotted an error in the FAR and reported it to the Regulatory Secretariat. They quietly corrected the error in the next FAC. The Claims Division maybe the Transportation and Claims Division sat on the 5th floor of the GAO Building which was a wretched and ugly space--more wretched and ugly than the other parts of GAO. GAO was able to get Congress to ship Claims to the Executive Branch. When I was in Huntsville in 1974, I worked with a fellow from the Transportation part of the Claims Division. He was a true expert in his field. -------------------------------------- Addendum: Look at this correction form. From before the electronic age. submit via mail or facsimile Oh C'mon. Make it east Secretariat. Make it a fillable online form that you can click and send the corrction to you. Geeesh!

Joel: I was counting on you.

OK, I revised the poll and added I have no clue. Now you have to vote.

Without searching, do you know the N. S. Savannah?