Retreadfed

The six year SOL may not resolve the problem. Remember the SOL only begins to run when a claim accrues. A claim may accrue much later than six years after contract closeout. Example, look at the WWII environmental clean up cases where the government is being forced to pay contractors for environmental damage through indemnification clauses in those contracts.

I haven't read the article, but Part 33 covers bid protests and CDA claims. In regard to protests, other than agency protests why not just reference the bid protest rules of the GAO and COFC? If any further guidance is needed, that could be added much like the FAR has done with the CASB rules in Part 30.

Vern, off topic but I thought you might be interested in this little nugget since you mentioned Bong Son. In '68 the Air Cav had a parody of Petula Clark's song Downtown. A line in it went "Listen to the rhythm of the AK 47. You can win a Purple Heart of even go to Heaven when you go to Bong Son."

Ever since FASA/FARA were passed in the 1990's, there supposedly has been a preference for the acquisition of commercial products/services using commercial procedures. However, that preference has not been exercised as much as it could have been because contracting officers don't know how business is conducted in the commercial world. As part of the investment Vern is advocating, I suggest that the government institute an exchange program with industry where government personnel spend a period of time such as two years in industry with companies like Proctor and Gamble to learn how they do contracting.

What do you mean by recapture? Do you mean can you use the funds for a new requirement?

Your question was about competition but you did not provide information about the nature of the procurement for anyone to determine what the facts are about competition. While your issue may have been resolved concerning adding the NAICS code to the solicitation, are you still interested in the issue of obtaining competition?

You are correct. My bad.

I think the question you were trying to ask was can anyone other than an 1102 receive a warrant? As Vern pointed out, there is no universal requirement that only 1102's can receive a warrant.

This sounds like the implementation of FASA. Instead of having the needed changes be processed by the normal FAR Committees, ad hoc implementation teams were created to deal with specific topics. I was on a few of those teams. An interesting aside to this process was that the person coordinating these efforts in DoD was Terri Squillocote (?) an attorney sent by Pres. Clinton from the White House to DoD who was later convicted along with her husband of being East German spies.

This question may come up in procurements for cafeteria services, which includes military dining facilities (mess halls). Here the Randolph-Shepard Act comes into play. The COFC has held that if the solicitation is for operation of the cafeteria the RSA applies and the blind vendor does not have to use an Ability One subcontractor to perform the mess attendant services part of the contract. On the other hand, if the solicitation is for mess attendant services, then the award should go to an Ability One contractor if available.

Just how much do we want to rely on AI? Can you imagine the outcome of a bid protest challenging a source selection decision when the SSA says "I used AI to make the decision and just signed off on what it generated"?

Carl, I read it just the opposite a little over $3B for contracts and $42.5B in grants.

Just an observation: I don't have data on this, but from my experience with DoT, it obligates more money through grants than through contracts. It will be interesting to see how this is addressed since most grant regulations are derived from OMB's Uniform Guidance (2CFR 200).

I think this just puts into "regulation" what has been a long standing practice. The DoJ Office of Legal Counsel has traditionally resolved disputes between agencies regarding the interpretation of law. OLC does not do this on its own but at the request of the agencies involved. However, the opinion of OLC has merely been advisory and not binding. It appears that now it will be binding.

Yes, there are some old mossbacks like me on here. I first got exposed to the ASPR in 1964. At that time, it fit in one small 3 ring binder.

What legal precedents do you have in mind? The decisions of the ASBCA, CBCA and COFC are not applicable government wide. In fact the COFC seems to be populated by independent contractors who do not feel bound by decisions issued by other judges on the court. The only government wide procurement decisions that are precedential are those issued by the Federal Circuit and Supreme Court. Even then, they may be interpreting regulations or statutes that do not apply to all agencies. As it is now, the FAR Councils don't seem to pay attention to precedential court decisions. For example, there are at least 3 CAFC decisions stating when interest starts to accrue on a claim that are contradictory to what is in the FAR. Every president since at least Lyndon Johnson has issued executive orders amending federal procurement regulations. While the implementing regulations may have been subject to notice and public comment, that procedure was meaningless since the decision had already been made in the XO. Again, presidents have historically issued XOs regarding procurement matters that were generated to satisfy some political base. Do you remember Clinton's so called "blacklist" XO concerning grounds for suspension and debarment that was issued to satisfy labor unions? Wouldn't a procurement system built solely on statute be a legally sound system? The notice and publication requirement for procurement policies etc. is found in 41. U.S.C. 1707. It is not clear from that statute that removal or cancellation of policies requires notice and comment. In any event, notice and public comment may be a futile act if the revision to the FAR is a result of an XO as has been the result on several occasions before. In any event, we do not know that FAR 2.0 will not be published for public comment.

See, 41 U.S.C. 1707

How long do you think it will be before the powers that be recognize that these requirements are grossly inefficient and unworkable? I predict that agency heads who are failing in their missions will start screaming for relief in short order.

Just a related thought: many times the NDAA has requirements that apply only to DoD, but the FAR Councils decided to apply them government wide. Will those provisions be deleted from the FAR but DoD will be required to include them in the DFARS?

You also have to be aware of ITAR restrictions on access to covered information by non-US citizens.

In addition to the advice Vern provided, you need to read FAR Part 49, the relevant termination clause in your contract and any terms in your contract concerning preparation of "business proposals" and compensation for their preparation.

Loml, is the TO funded with appropriated funds or non-appropriated funds?

Yes, in the first instance. However, if the parties cannot agree on a settlement, then the CO is entitled to make a unilateral determination as to what would constitute fair compensation, including fee using the guidance in the termination clause.

No. In regard to CPFF contracts terminated for convenience, there are 2 clauses that need to be considered FAR 52.249-6 and 52.232-20. In addition, you need to consider FAR 49.114. Under 52.232-20, the contractor is not required to incur costs that exceed the estimated cost of the contract including actions under the termination clause. This means that the estimated cost of the contract needs to be determined. That is where 49.114 comes into play. In your hypo, there is an SWO that may require an adjustment of the estimated cost of the contract. In addition, depending on the circumstances, the fee may need to be adjusted. In any event, you need to determine the impact of the SWO on the estimated cost and fixed fee before determining what the contractor will be paid in the termination settlement. IAW 52.249-6(g), the parties can agree on what the contractor is to be paid subject to 52.232-20. This amount includes "an allowance for fee." Note that under (g) there is no mention of how the allowance for fee is to be computed other than it is a negotiated amount. However, if the parties cannot agree on what the contractor is due, the CO can make a unilateral determination of what the contractor is due. That determination is to "include a percentage of the fee equal to the percentage of completion of work contemplated under the contract." The percentage of fee contemplated here is a percentage of the fee determined after application of 49.114. In you hypo, the SWO was not cancelled but the work covered by the SWO was terminated for convenience. In that case, 52.242-15(c) applies and there would be no 49.114 adjustment for fee, however, there would be a cost adjustment that would determine the estimated cost of the contract which would be a ceiling on the amount of cost recovery under the contract.

Presumably, if the contract is a CPFF contract, it would not be for commercial products/services. Therefore, 52.212-4 would not be in the contract. Which termination clause would be in your hypo contract?