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Posts posted by bob7947

  1. Yesterday, GAO published a sustained protest decision Spatial Front, Inc. B-420921.2, B-420921.3, Dec 21, 2022 I had 2 immediate thoughts when I read the decision.  They are

    1. Can we fairly eliminate not within the FSS contract issue in a protest?  
    2. Accepting GAO's examples of items not within the FSS contract as facts, are you convinced that they are material ?

    Even if you do not comment,  there is still something you can think about it your work.


    For example, TSPi proposed a “Developer” labor category to support the development of software applications in the Prometheus agile release train. AR, Tab 20, TSPi Pricing Worksheet at 5, 7. It is clear that TSPi proposed the “Developer” labor category to fulfill the software development role on this call order. However, the FSS labor category--“Quality Assurance Engineer,” to which TSPi mapped this position--discusses only the “test[ing] of software to ensure proper operation and freedom from defects,” and gives no indication that the position includes the development of software. AR, Tab 35L, TSPi FSS Contract No. GS-35F-0128Y at 85. Also, to the extent USDA reviewed whether TSPi’s proposed “Developer” was within the scope of the mapped-to “Quality Assurance Engineer” FSS labor category--either when establishing the BPA or otherwise--USDA failed to adequately document its determination. FreeAlliance.com, LLC et al., supra at 14 (sustaining protest “because the record is not sufficient to allow us to review the agency's evaluation in this area for reasonableness”).


  2. This is an opinion by Judge Solomson of the Court of Federal Claims.  It may save a potential protester thousands of dollars just by reading it.  It takes about 15 minutes to get the idea.


    This Court does not examine procurement decisions with an electron scanning microscope, searching for the slightest of imperfections. As Judge Tapp recently noted, “even ‘violations of law,’ let alone innocuous mistakes, should not result in setting aside awards unless those mistakes have some significance, for ‘[a]ny good lawyer can pick lint off any Government procurement.’”1 In this case, Plaintiff, Ekagra Parnters, LLC (“Ekagra”), has the burden to allege and then prove that Defendant, the United States — acting by and through the United States Census Bureau (“Census” or “USCB”) — not only committed some error in awarding the contract at issue to the Defendant-Intervenor, Paradyme Management, Inc. (“Paradyme”), but also that any such error prejudiced Ekagra. Ekagra, however, alleges procurement errors that are more akin to dust particles than troublesome lint.

    1 Ginn Grp., Inc. v. United States, 159 Fed. Cl. 593, 608 (2022) (alteration in original) (quoting Andersen Consulting v. United States, 959 F.2d 929, 932 (Fed. Cir. 1992)); see also Caddell Constr. Co. v. United States, 129 Fed. Cl. 383, 403–04 (2016). This Court similarly observed in a recent decision that a plaintiff’s “questions” regarding the conduct of a procurement “do not substitute for the evidence necessary to succeed on the merits.” Ahtna Logistics, LLC v. United States, -- Fed. Cl. --, 2022 WL 17480642, at *1 (Fed. Cl. Nov. 28, 2022) (describing “prejudice on the merits” as “an issue, in this Court’s experience, to which plaintiffs all-too-often do not pay sufficient attention, usually at their own peril”).


    Ekagra Partners, LLC v. U. S. and Paradyme Management, Inc., No. 22-1038C, December 21, 2022

  3. H. R. 7776 - Water Resources Development Act of 2022  

    Now it is labeled H. R.  7776 the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023

    The first bill was for something other than an NDAA.  Apparently, H. R. 7776 was highjacked and is planned to be the NDAA for FY 2023.  The Chairmen and Ranking Members from the House and Senate Armed Services Committees grabbed H.R. 7900 and S. 4543--two versions of an NDAA--squished them together, hijacked H. R. 7776, amended that bill, and renamed it as the one above.

    When time is available, conferees are named and they negotiate a conference report and both Houses of Congress vote on it, approve the conference report and send it the White House for signature to make the finished bill a Public Law.

    H. R. 7776, the agreement between the Chairmen and Ranking Members will probably be substituted for negotiations between conferees of both houses and H. R. 7776 will be passed by both houses.  Then off to the White House.  There are plenty of perfections to contracting law in Title VIII but H. R. 7776 needs to be passed in about 2 weeks without running into any obstacles.  It probably won't get derailed, but I think it's too early to look at any of the bill's provisions.

  4. The Nash & Cibinic Report, Volume 36, Issue 12

    By Vernon J. Edwards

    Addendum by Ralph C. Nash

    Numerical (“point”) scoring/rating systems have long been used as a proposal evaluation technique. Once upon a time the use of such systems in the source selection process was common. But after a number of bid protest decisions in the 1970s and 1980s involving numerical scores, some agencies began to restrict or even prohibit their use and mandated the use of adjectival and colorrating schemes instead of numbers.

    Please Read:  Numerical Scoring In Source Selection: Lessons To Be Learned

  5. Vern:

    Picture a ranch and someone dressed in a clown's outfit monitoring the animal pens.  The clown is wearing a placard that says "OFPP Administrator" and walks over to a very large pen filled with nasty, old pigs.  The pigs have left a disgusting odor in the pen because they are bunched closely together and no one has cleaned the pen in decades.  The clown, newly hired, prepares to open the pen and let the pigs out.  From a distance, another person with a "Director, OMB" placard, shouts to the clown, "don't let the pigs out."  "There's more coming in."

    An 18-wheeler shows up next to a wooden runway leading to the large pen.  The driver, happy to get rid of the load, opens the door to the 18-wheeler and the new pigs, grunting and snorting, head for the overcrowded pen.  The clown shouts to the Director, OMB in the distance:  "Why did you let a new load of pigs into the disgusting, smelly, crowded pen."  The Director, OMB says:  "the new NDAA just passed and those are the new Title VIII pigs ready to join the earlier Title VIII pigs already in the pen."

    The clown looked in another direction and saw a cloud of dust rising from the feet of a group of people running in another direction.  The clown looked at the Director, OMB and shouted:  "Who are they?"  The Director shouted back:  "That's the FAR council members."  "Round them up and put them in the pen with the pigs."  "They'll know what to do."

    The Director walked over to his waiting car muttering to himself, "stupid clown, there's always a sucker to take that job."

  6. On 11/20/2022 at 11:45 AM, Vern Edwards said:

    The real question is:

    What do these box-store GWAC MATOCs do for us in light of the FAR-Part-15-type methods agencies use to conduct task order competitions under FAR 16.505(b)?

    Do they make the conduct of particular competitive task order acquisitions easier, more expeditious, and less costly?

    Do we have facts?


    I did a little calculating.  $15,505,407,941 / 1,139 = $13,613,176 obligations per task order (rounded).  I know using obligations is not correct but that is close enough.  You asked 4 questions.  My answers are 1) probably not, 2) probably not, 3) probably not, and 4) not aware of any facts other than my little calculation.

    I believe Title 10 and 41 as they relate to federal contracting should be obliterated.  

    Here is one itty-bitty part of the contracting law that I especially hate.


    SEC. 5112. CAPITAL PLANNING AND INVESTMENT CONTROL. (a) FEDERAL INFORMATION TECHNOLOGY.—The Director shall perform the responsibilities set forth in this section in fulfilling the responsibilities under section 3504(h) of title 44, United States Code.


    (e) DESIGNATION OF EXECUTIVE AGENTS FOR ACQUISITIONS.— The Director shall designate (as the Director considers appropriate) one or more heads of executive agencies as executive agent for Government-wide acquisitions of information technology.  (excerpts from PUBLIC LAW 104–106—FEB. 10, 1996)

    That authorized the Director of OMB to make mini central suppliers so they could make their own big-box acquisitions and share them with others or compete against others.  

    Here is a question:  How many federal agencies does it take to buy a laptop computer?

  7. Connected Global Solutions, LLC and American Roll-On Roll-Off Carrier Group Inc. v. U. S. and HomeSafe Alliance, LLC, No. 22-292C, 22-317C, November 15, 2022.


    “Perfection is the enemy of progress,” an adage aptly describing many aspects of the government procurement process. The search for a perfect procurement, proposal, or even performance would be in vain. Arbiters are tasked with deciding whether protested procurements pass muster; accepting less violates the law and disregards notions of transparency and fairness. Requiring more is likewise infeasible; it impairs government agencies, awardees, and ultimately taxpayers. It is within these parameters that the Court decides whether the United States has acted arbitrarily, capriciously, or in violation of the law in conducting the subject procurement.


  8. Streamlining Source Selection by Improving the Quality of Evaluation Factors

    Nash & Cibinic Report, October, 1994

    A special column by Vernon J. Edwards, Consultant in Government Contracting

    Almost everyone involved with Government contracting can tell a horror story about a “best value” source selection that involved the development of a lengthy and costly proposal, about a source selection that took two years to complete, and about a protest that delayed an important project and increased its costs. Legislators, policymakers, and acquisition managers are currently looking for ways to “streamline” the source-selection process. I would suggest that the single most effective thing acquisition managers can do to streamline the best value source-selection process is to improve their choices of evaluation factors for award.  (Read special column.)

    * * * * *

    Postscript: Streamlining Source Selection by Improving the Quality of Evaluation Factors

    Nash & Cibinic Report, December, 1994

    Ralph C. Nash and John Cibinic, Professors Emeriti of Law, George Washington University

    Professors Nash and Cibinic received two comments on Vern Edwards' article.  One was from Bryan Wilkinson, Director, Compliance Guidelines, Teledyne, Inc. and the second was from Steven Kelman, Administrator of the Office of Federal Procurement Policy.  The Postscript contains the two comments and the Professors' response.  (Read Postcript)

  9. This week Vern was in looking around in his library when he found this study:


    The Quality and Professionalism of the Acquisition Workforce


    Report of the Investigations Subcommittee, 

    Committee on Armed Services, House of Representatives,

    One Hundred First Congress, Second Session

    MAY 8, 1990



    The full 776 page study is available at Google Books.

    The Contents page of the study contains links that you can click for the different chapters.  Vern mentions 2 chapters from the study. 

    Chapter V:  The Contracting Workforce, contains a 12-page section devoted to the contracting officer.  He highlighted some text from the chapter about what Congress thought of contracting officers in 1990.  He explains that the study is out-of-date in some ways but it is still revealing about what Congress thought of contracting officers in those days:

    “The contracting officer is the fulcrum of the acquisition process.”


    Chapter VII, Professionalism of the Acquisition Workforce, is a 50-page discussion of the state of professionalism, education, and training, begins with a discussion of the concept of professionalism.


  10. Using AI to Reduce Performance Risk in U.S. Procurement

    GWU Legal Studies Research Paper No. 44, 2022

    GWU Law School Public Law Research Paper No 44, 2022

    The Regulatory Review (June 29, 2022)

    Jessica Tillipman, George Washington University - Law School

    Courtesy of the Social Science Research Network

    Published with permission of the author

    Please Read:  Using AI to Reduce Performance Risk in U.S. Procurement

  11. Government Contracts Law as an Instrument of National Power: A Perspective from the Department of the Air Force

    51 Public Contract Law Journal 553 (2022)

    Daniel Schoeni

    U.S. Air Force JAG Corps

    September 28, 2022

    Courtesy of SSRN

    Please Read Government Contracts Law as an Instrument of National Power: A Perspective from the Department of the Air Force

  12. I've been interrupted by my dogs every time I sit down to write something.  

    There have been numerous individuals who have published their writings on Wifcon.com and they have all benefitted from publishing their articles here.  As I have mentioned, h-t-h's article that was publised well over a decade ago, was the most popular article in September 2022.  The articles published on Wifcon.com have staying power.  If they are good, they are read over and over again each month.  You have an international audience here.  USE IT.  It's free.



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