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  1. The FAR is a regulation, not a law. The "laws" on which one might rely to permit the disclosure of such information to contractors (and thus, avoid a violation of 18 USC 1905) in this instance are 10 USC 2383 ("Contractor performance of acquisition functions closely associated with inherently governmental functions") or, for non-DOD, 41 USC 419 ("Contracting functions performed by Federal personnel").
  2. Having taken a long hard look at the definition and Vern's Post #12, I see where I was wrong on this. I agree that the services would not qualify as commercial under paragraph (5) unless the Government were actually buying nets and wanted to contract for research on how to properly use them. I was reading (5) more "globally" than I should have; I apologize. If they are commercial at all, it would have to be under (6).
  3. I'm not a commercial fisherman, but it just seemed to me that figuring out how not to lose a net is something that would be of some value to someone involved in that line of work.
  4. I can't speak for Leo1102, but yes, I do believe that these services probably fall within the FAR definition of commercial services. Specifically, FAR 2.101 provides that "Commercial Item" means: .The items referred to in paragraph (1) of the definition are: Surely, salmon fishing nets are a commercial item. These services would be in support of that item. The actual determination of whether or not the sources of these services provide them "contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government" would require some market research, but I'm betting that the second prong of the definition would be borne out. I can imagine, for example, that there are associations of commercial fishing interests, as well as non-governmental environmental groups, that would be customers for that type of research.
  5. Not "how and why" they lose the nets, but rather, how to prevent them from losing the nets. I was intrigued as well, and a quick google search turned up the following article from USA Today: http://www.usatoday.com/news/nation/enviro...servation_N.htm One could argue that this is money well spent because it may ultimately help reduce the amount of derelict fishing gear lurking in the deeps that poses a danger to other innocent marine life, boats and the environment generally. Additionally, it appears that we've spent a fair amount of tax dollars just trying to recover some of this stuff. As for these research services, my bet is that they would be considered commercial.
  6. Aren't there circumstances under which an SF 1449 is not required when acquiring commercial items? 12.204 Solicitation/contract form. (a) The contracting officer shall use the Standard Form 1449, Solicitation/Contract/Order for Commercial Items, if (1) the acquisition is expected to exceed the simplified acquisition threshold; (2) a paper solicitation or contract is being issued; and (3) procedures at 12.603 are not being used. Use of the SF 1449 is nonmandatory but encouraged for commercial acquisitions not exceeding the simplified acquisition threshold. Obviously, the SF1449 is not required for actions under the SAT, but it would appear that it is also only mandatory for procurements above the SAT in cases where all of the three conditions above are met. How many contract offices issue paper solicitations or contracts anymore?
  7. Vern, 1. No bs or lecture ever intended. 2. I get the bona fide needs rule - you had me at Post 47. That said, this "dim bulb" is finished and out.
  8. And by the by, I'm not concluding anything. I'm trying to understand a GAO case that seemingly ignores the bona fide needs rule.
  9. (Emphasis supplied).Gosh folks, maybe I'm thick today, but somebody explain to me how the language above does not plainly mean that the GAO was sanctioning the use of FY03 funds to cover at least part of an obligation created by a task order issued in FY04?
  10. formerfed, They may have incurred a $1M obligation in FY03, but according to the terms of the contract, they did not have to satisfy it by the end of FY03. They had three years. They were certainly deficient in recording the required obligation at time of contract award. Assuming that they had complied with the recording requirement, having only ordered $45K in FY03, what should have happened at the end of FY03?
  11. And, oh yes, the parking issue is the thing that concerned Jacques in Post 35.
  12. Don. I'm not making anything up; I'm just trying to understand the GAO's recommendation in B-308969, because they recommended that the agency do exactly what I described - charge FY03 funds for what looks to me like a requirement of FY04. Go to this site: http://www.gao.gov/special.pubs/appforum20...ontract_law.pdf Look at the table on obligational rules, and in particular, at the part about IDIQs and see what you think GAO is saying about this.
  13. I also agree that there is a potential violation of the PIA. I would urge whoever your Procurement Fraud Advisor is (and it may be the same attorney who rendered the initial opinion) to submit a flash report (unfortunately, that means that the KO who disclosed the info may get caught up in potential administrative, civil or even criminal penalties). I would also look at the possibility that Company X is gaining an unfair competitive advantage in any of the requirements on which it submits bids or offers by reason of having obtained access to non-public, competitively useful information held by the former employee. If that is the case, it is a situation almost indistinguishable from an OCI, and the KO would want to think about requiring Company X to submit mitigation plans on any solicitation that involves the former employee's former work.
  14. Although B-308969 did not use the term ?bona fide needs,? it should have, because, even as Jacques recognized, there is a bona fide needs issue raised by how GAO dealt with the agency?s failure to record an obligation equal to the minimum guaranteed amount. They recommended that the agency adjust its accounts by deobligating the FY04 funds it obligated for an FY04 order and to correct by obligating FY03 funds for that order. Vern, you said that Tell me how an order placed in FY04 is an FY03 obligation (and therefore, a bona fide need of FY03). If Interior had properly obligated the $1M of FY03 funds upon contract award, would it have applied the $955,000 of FY03 it had left at the end of FY03 against TO2 placed in FY04?lThis is an academic discussion, but so what? I went back and reviewed the ?Terms of Use? for this forum, and find no prohibition against discussing academic or hypothetical issues. What better time to discuss bona fide needs and rules pertaining to obligations than Fiscal New Year?s Eve?
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