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This was posted by "Nell" on the Blogs. I am posting it here. "Under the Bona Fide Needs Rule discussion, B.7. Contract Modifications and Amendments Affecting Price, WIFCON states that "in order to avoid over-obligating the original appropriation, the contracting officer must estimate the expected net additional obligations to insure that available appropriations are not committed to other purposes." WIFCON then references Comp. Gen. 609, 612 (1982) for cost-reimbursement contracts and B-192036, Sept 11, 1978. I find the same information in the GAO Red Book. However, as I read the '78 decision, I cannot find where the contracting officer (CO) is specifically identified as the individual responsible for estimating antecedent liability (AL) funding. The decision states that "there should be an administrative reservation of sufficient funds to cover the excess of the estimated increases over decreases resulting from variations...". And, the decision concludes by stating that "the contracting agency is responsible for instituting administrative controls...". Clearly, the contracting agency encompasses all those supporting a contractual requirement but does not in and of itself apply solely to the contracting officer. Is there some other regulatory or legal basis for requiring the contracting officer to estimate AL? In my 25+ years of contracting experience, the responsibility for estimating antecedent liability or management reserve has always been a program manager (PM) function. In most situations, contracting officers do not sit on Change Control Boards. Often, until a funded PR for a change arrives on the CO's desk, the CO does not know about it. And, frankly, if I were a PM, I would not want the CO estimating the amount of my budget that is going to be spent on changes. In the agency where I work, the Financial Manual has been revised to state that the CO must provide an estimate for all future ECP changes. The COs do not make technical decisions on the program and they do not control the budget, but somehow they are being made responsible for estimating changes. I concur that the CO decides whether changes are in or out-of-scope. However, most PMs and Fiscal folks with appropriations law training understand the principle and are able to make planning and budgeting decisions in this regard. It may be that the Red Book used the CO nominally only intending that the reservation of funds be performed by the agency. Unfortunately, the specific naming of the CO as the individual responsible has had the consequence I described above." ----------------------------------------------------------------------------------------- Neil: The Bona Fide Needs Rule appearing on Wifcon.com is the same information from GAO's Red Book and its annual updates. As such, it is a handy way to see what GAO says--not Wifcon.com. Which reminds me, I need to check this year's updates.

Note: The question below was posted on the blog section by member TWorthington. I've transferred it here for him: "In college, I learned that if a contract (not necessarily a federal contract) is defaulted on, there must be something of value given from the defaulting party to the other party (the party that was wronged). However, in reading a post by Vern Edwards that directed me to Administration of Government Contracts, I understood that it is up to the contracting officer whether to require consideration if, for example, the delivery date is not met. However, I have heard from my peers that even though consideration is often not required, it should always be required if the contractor does not deliver on time. Can anyone definitively clear this up for me? The posts by Vern Edwards and others are not 100% clear on this matter. My specific situation is this: a contractor had to purchase new equipment to fulfill the contract, and the equipment was delivered late. The delivery to the government will be 3 weeks late. Once the item (which was repaired and rejuvenated for around $30,000) is delivered to the government, it will sit in our warehouse room for another month or two before it can be reinstalled. Should I require consideration? Am I required to seek consideration? Because of the relative small price tag, even $500 would be a significant hit to the contractor?s profit margin. Thank you."

I forgot to mention that I will be adding the decision this weekend.

On page 29 of the decision, the Court mentions that: "The HUBZone statute was introduced as part of the Senate version of the Small Business Reauthorization Act. Def.'s Resp. 26 (citing Small Business Reauthorization Act of 1997, S. 1139, 105th Cong., tit. vi (as reported by S. Comm. on Small Bus., Aug. 19, 1997, S. Rep. No. 105-62)). Defendant notes that the original Senate version of the bill contained a "Parity Relationship" provision, which stated that the HUBZone provisions "shall not limit the discretion of a contracting officer to let any procurement contract to [sBA] under section 8(a)." Id. (quoting 143 Cong. Rec. 18,118 (1997)). Defendant also notes that after the House of Representatives removed the entire HUBZone program from the bill, the Senate reinstated the program--but without the parity provision. Id. at 27 (citing 143 Cong. Rec. 24,094-108)." No explanation for the parity provision's omission was provided in the Senate record." Id. (citing 143 Cong. Rec. 24,106). defendant then lists a number of comments by House members, expressing their concern "that the new HUBZone program not harm the existing 8(a) program." Def.'s Resp. 28. With no explanation from the Senate as to why the parity provision was omitted, the fact that it was omitted is inconclusive." Apparently, the bill entered what our legislature refers to as a "conference." In truth, it is a shuffling of papers by a bunch of guys and gals who may or may not have a clue about what they have before them. Anyway, it appears that what some learned members of our "legislature" wanted was trashed in conference. Why? Who knows. Maybe some old fuddy-duddy hoping for a defense plant in his state just was being ornery and hid the provision. Anyway, that is the legislative process. In the latest major piece of "contracting legislation," the National Defense Authorization Act For Fiscal Year 2010, our "legislature," had another shot at removing a "shall" and replacing it with a "may." Maybe that would have provided clarity to this situation. Instead, "our legislature" again omitted the change. You can see it here at the bottom of this page. The provision was deleted in "conference." Why? Who knows? Again there was no explanation. Maybe the provison dropped to the floor and no one picked it up and stuck it back in the pile of paper before it was voted on. Who knows? Anyway, apparently a disappointed congressional staffer decided to try to scold the government into submission by using a Justice Department declaration. Nice try little one. It doesn't work as you can see from the Court's decsion below: Congress's statements about the proper interpretation of a statute subsequent to the statute's passage are of little persuasive authority. (p. 31 of decision) Now, we can all anxiously wait for the next piece of garbage contracting legislation to clear everything up. Legislative intent reminds me of a personal story. I had been flying around the country visiting contracting offices to review the experience gained under an OFPP contracting test. Before I got down the steps of the contracting office at Rock Island, I found out that a bill incorporating the test's provisions had been signed into law. At the end of my work, I sat down with a congressional staffer explaining our review of the test. There was a problem. One provision of the law scared everybody. I tried my weak explanation of what the legislative intent wanted. The staffer looked at me and said there was no such thing as "legisative intent" since no one knew what they were voting for. Then the staffer said "what have we done." The staffer immediately called OMB and--over the phone--it was agreed that there would be no regulation to implement the troubling provision of law. It worked. In the future, I suppose the legisation was fixed.

Look at the third case down. http://www.wifcon.com/pd15_102.htm

When you use a citation, (a), (, ( c), ©, (d), etc. turn off "enable emoticons" and "enable signature." Unfortunately, if you use ©, instead of ( c), you can see what happens. (Courtesy of Vern.) I'm trying to see what else this does before I turn it in to the software publisher.

Vern: Now that the COFC and ASBCA have decided to hear claims under fair opportunity processes, do you believe that Congress should eliminate contractor protests on orders under task order contracts?

You may wish to review this. It is taken from the conference report for the National Defense Authorization Act (NDAA) for Fiscal Year 2010 and included in Wifcon.com's annual analysis of the NDAAs. Although the Senate provision was not adopted, the "conferees" included language in the report for DoD's attention. Small business contracting programs parity

The Project On Government Oversight (POGO) is conducting a service contracting survey and is soliciting responses from various federal government and contractor employees to help determine the extent to which the government's service contracts conform to regulatory standards and the achievement of goals and missions. The web-based survey is designed to examine the federal government's policies and practices in using private sector contractors to perform services. If you wish to participate in the survey, please read all of the instructions. Instructions and Survey Document.

Two of Dan Gordon's articles were posted to this site's Analysis page during 2006 and 2005.

For anyone who hasn't seen the Office of Legal Counsel's (OLC) opinion stating: The Small Business Act does not compel the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program. The Small Business Administration's regulations permissibly authorize contracting officers to exercise their discretion to choose among these three programs in setting aside contracts to be awarded to qualified small business concerns. It is now published at OLC's site.

The rumors this morning are about the next head of OFPP. As I posted some time ago, the current rumor surrounds GAO's current Acting General Counsel. Much of his career was in GAO's bid protest unit. How would a former GAO bid protest attorney affect federal contracting?

The smiley is a flaw in this software. I have yet to remedy it. However, assume the citation is 15.209( b )(2). If you add a space between the front of the paren. and the letter and after the letter and between the end of the paren, you will see the letter as I have shown. Its a workaround courtesy of over 30 years as a bureaucrat.

The Weeks Marine, Court of Federal Claims' case and the reversal by the Court of Appeals for the Federal Circuit can be found here.

I was looking at a sample of memorial services being held today. Then I wondered what all of you were doing when you first found out about the attack on us on September 11, 2001. I'll start. I was in the GAO building at 4th and G NW, Washington, D. C. I remember walking into my office and noticing how quiet things were. Someone walked past my door and asked me if I knew about the attack on New York. I went into a conference room where a TV was on and noticed that one of the WTC buildings was on fire. All of a sudden, a second WTC building was hit by an airliner. The Comptroller General told everyone to stay in the GAO building because, as he told us, it was built like a "pillbox." Actually, the building was intended to be a warehouse for public documents. Supposedly, it was more sound than a typical building. While much of the city evacuated, I was sitting in my office watching the coverage on my computer. Between 4:30 and 5:00 PM, I walked out of the building. As I left the building, I realized that I was one of a few people on the street. I seem to remember seeing an F-16 or 15 flying above where Arlington Cemetary was and seeing smoke from above where the Pentagon was. When I reached the subway platform at Judiciary Square I was nearly alone. At Gallery Place, I was nearly alone again.

Don: For those who want to research the FACs and FAR Cases from the federal register notices back to the end of 1999, they can click "FAR Research" on the Rules & Tools page.

It was posted on here http://www.wifcon.com/ on July 1, 2009. Start your day by visitng the Home Page.

In accordance with Rule 11, issues are to be couched in a hypothetical manner. As a result of your post, I reviewed this thread and edited the post that provided "specific" legal advice so that it is no longer specific. In posting, it is important to remember that this is a public forum that can be viewed by anyone that happens by. As I menioned before, if a poster is a contracting officer, he/she may be discussing an issue with his/her contractor without knowing it. Likewise, a contractor could be discussing an issue with his/her contracting officer without knowing it. For these and other reasons, please remember Rule 11 when posting.

Here is the information I posted to the Wifcon Blog on Sunday morning. It provides access to the decisions and memo for those interested. Decisions & OMB memo.

I am evaluating target costs vs actual costs to determine if the contractor earned any incentive fee. The contract requires that the contractor collect money on behalf of the Govt. The monies collected by the contractor are included a a credit on the public vouchers wtih a total net costs billed on the voucher. Should the net amount of the voucher (including the credit) as the amount to be used in my incentive fee evaluation?

I am evaluating target costs vs actual costs to determine if the contractor earned any incentive fee. The contract requires that the contractor collect money on behalf of the Govt. The monies collected by the contractor are included a a credit on the public vouchers wtih a total net costs billed on the voucher. Should the net amount of the voucher (including the credit) as the amount to be used in my incentive fee evaluation?

I am evaluating target costs vs actual costs to determine if the contractor earned any incentive fee. The contract requires that the contractor collect money on behalf of the Govt. The monies collected by the contractor are included a a credit on the public vouchers wtih a total net costs billed on the voucher. Should the net amount of the voucher (including the credit) as the amount to be used in my incentive fee evaluation?

Also see: Adams Industrial Services, Inc., B-280186, August 28, 1998. While FAR sec. 19.302(j) treats size status protests received after award of a contract as having no applicability to that contract, SBA's regulations, which we view as controlling in this area, provide that "[a] timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest." 13 C.F.R. sec. 121.1004©. Moreover, in the absence of countervailing reasons, we view it as inconsistent with the integrity of the competitive procurement system and the intent of the Small Business Act, 15 U.S.C. sec. 631-657a (1994), for an agency to permit a large business, which was ineligible under the terms of the RFQ, to continue to perform. Diagnostic Imaging Tech. Educ. Ctr., Inc., supra. (emphasis added)

I am wondering whether anyone has come across a situation wherein you know that an apparent successful offeror who has won a bid from you cannot possibly deliver conforming goods because the price is "too good to be true"! My question is, "what steps can be taken to have someone disqualified from receiving a award under these circumstances?

April Fools.