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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?

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.

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 refernce to item b in the prescription at 15.209 is coming through on the post as a smiley face...sorry.

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.

It was posted on here

http://www.wifcon.com/

on July 1, 2009. Start your day by visitng the Home Page.

Thanks. I was not aware it was being re-written.

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.

Secondly, as a government attorney, I have some concerns about the sharing of specific, detailed advice given to an agency customer by the agency counsel. When I advise my clients, I am doing so as an attorney representing the AGENCY. The individual contracting officer, program manager, etc., is ALSO representing the AGENCY. There is no attorney-client relationship between the two of us as INDIVIDUALS. Within the bounds of that relationship, what I tell my client is privileged and confidential, meaning I cannot be forced to reveal it to anyone not a part of that attorney-client relationship. However, when it is shared in a public form such as this, that attorney-client privilege is breached and the advice is no longer privileged and confidential and could be disclosed in a forum such as a bid protest (filed by a contractor unhappy over the outcome of Kathleen's acquisition). Don't think unsuccessful offerors don't scour the Internet for comments such as these. I know they do. Finally, it's important to remember that the privilege belongs to the agency, not to the individual. Thus, neither Kathleen nor any other individual below the HCA or similar official has the legal right to reveal specific advice they receive from counsel.

Having said all that, I respect and appreciate the value that WIFCON provides as a sounding board. However, as a gov't lawyer, I get paid to be anal-retentive, paranoid and otherwise a wet blanket. So please bear with me.

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?

Carl:

This is the first award I have handed out on Wifcon.com--that I remember.

(Drum role) I bestow upon you, Wifcon.com's "Best Hat" award for 2009. Congratulations.

I was wondering how all the recent news is affecting government and contractor personnel. There are a number of things that have been happening that will affect your work. I don't want to mention any but I was wondering what you felt.

What current event is having the most effect on you at your workplace and how is it affecting you?

This reply serves as a test and as an answer to my original question.

Using GAO's count, there were 16 protests. Two procurements and 16 protests. My purpose was to show that the articles that are appearing about more protests than ever is true, if you use GAO's count. However, what is more important--the number of protests or the number of procurements? I think it is the number of procurements. In this case, there were two procurements.

When GAO reports next year, I think they should clear things up. They must report to certain congressional committees so the purpose of their report is for them. However, the following information would be helpful:

• # of protests by GAO's count
  

• # of procurements affected by protests
  

• estimated "cost" and/or "price" of affected procurements. Now, we know we are going to get apples, oranges, and cumquats here but it should give us some idea of how large an issue protests are.
  

That's a start.

About 20 years ago, GAO was asked to do a study of costs paid to settle protests. Congress just knew it was a big issue because people told them so. GAO completed the study and the facts disclosed there was no issue.

Currently, GAO is required to do a study of "frivolous" protests and what to do about them. Personally, I can't wait to see the results of the study. Let's see how GAO handles it.

The more information GAO provides in its annual report, the better. Maybe we will get a better idea of the effect of protests on procurement then.

How many protests do you see in the list below?

1. The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008

2. Lockheed Martin Aeronautics Company; L-3 Communications Integrated Systems L.P.; BAE Systems Integrated Defense Solutions, Inc., B-295401, B-293401.2, B-295401.3, B-295401.4, B-295401.5, B-295401.6, B-295401.7, B-295401.8, February 24, 2005.

Is it: a.) 2, b.) 16, c.) not enough information?

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