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Everything posted by Oyster

  1. Bob: Sorry to be late to the party, but I wanted to add my congratulations for creating what is truly a brilliant website. I use it all the time. There is no parallel. Outside of the excellent content, it provides a way for those struggling with complicated issues to get the unvarnished views of experienced contracting professionals. This site provides a critially important arena in which contracting folks can get ask honest questions and get meaninful/helpful responses. In a government contracting culture where folks are often mortified to confess a lack of knowledge or experience in t
  2. OK, I humbly change my answer to yes. It fits the definition of a "claim."
  3. Frog2: I thought you were referring to a published decision. I don't recommend sending any more info on this without your servicing attorney's knowledge/permission. The last para is GAO direction not to release it. Release may violate the protective order.
  4. Yes. The rule is irrelevant to the definition.
  5. Frog - Can you cut and paste the actual language of the GAO recommendation from the decision? That would likely help others answer your questions.
  6. Typo in last part: "In other words, I'm to know curious..." should change to "curious to know." sorry
  7. Almond2020 et. al.: Just to throw another log on this fire - is Almond2020's experience increasingly typical? That is, setting aside the many irritations that attach to almost all federal employees' jobs, (i.e. sequestration, pay freezes, negative societal attitudes towards goverment, overworked, underpaid, etc.) is the 1102 world getting better, worse, or about the same? If worse, why? If better, why? I know individual experiences differ, but I wonder what those with at least 15+ years of experience as 1102s would say - from a 50,000 foot type of perspective. I doubt there was ever a tr
  8. here_2_help: Thank you for your insightful post. I appreciate it. Good info.
  9. Perhaps this should be a new discussion thread, but I noticed that there is a March 7, 2013 DOD IG Report on DCAA. It found that DCAA failed to use "professional judgment" in 74% of the sample audits that the DOD IG reviewed. I've had limited exposure to DCAA, but that experience was negative - in line with the report. I know that it is no secret that DCAA has pervasive problems, but can anyone shed some light on why they are so bad exactly? I'm assuming that there is a confluence of contributing factors, but its surprising to me that they are allowed to continue on without a major restruc
  10. Brian: I agree with Vern. You have to take a look at the Axiom case: http://www.wifcon.com/fedcir/08-5072.pdf There the COFC judge got it wrong at every turn. The GAO was correct. The CAFC opinion is over two years after the GAO protest. But for the COFC's involvment (where the Judge made a series of questionable judgment calls - both substantive and procedural) the case would have been decided correctly almost two years earlier. I just disagree with you. This is far too much "accountability." The Government needs to run the railroad - and the current protest system is no way to run
  11. BrianR - Good example. I think we need to re-visit the wisdom of the 1940's Supreme Court on this topic. As the article cited above points out, it was once inconceivable that the Government's purchasing decisions would be subject to judicial review. That is, the 1940 Supreme Court case - Perkins v. Lukens Steel (310 U.S. 113, 1940) - (one of the earlies bid protest-type of cases) - warned that such a system would result in "confusion and disorder." Further they explained that: "The bare suggestion of [judicial review of Government purchasing decisions], with its attendant inconveniences, g
  12. Vern: I agree with you. The COFC is an unwieldy protest forum that adds nothing of value to the protest system. I, like you, have the utmost respect for the COFC and the COFC judges. Its nothing against them personally or their decisions - its just not well suited as a protest forum. Sadly, as noted in my comments above, if DOD cannot even get Congress to pass the sensible and rather modest legislative proposal referenced above, it is highly unlikely that Congress will take the more drastic step of eliminating the COFC as a protest forum. I always appreciate your comments Vern.
  13. Just to add to my previous comment, the text of the DOD proposal can be found here: http://www.dod.mil/dodgc/olc/docs/25April2012Proposals.pdf (You have to click on the PDF entitled, "Timeliness Rules For Filing Bid Protests.pdf," on the left side of the screen.) It is virtually verbatim from the proposed legislation set out in the Saunders and Butler article. The morale of the story (at least at this point) appears to be that regardless of the merit of any proposed legislation it will not move forward without industry support.
  14. Excellent discussion. If anyone is interested in reading the full text of the Saunders and Butler article on this topic, it can be found here: http://www.pubklaw.com/papers/clause/clause092010.pdf (starting on page 7). It was originally published in the ABA's Public Contract Law Journal and then republished (with permission) in the Board of Contract Appeals Bar Association's (BCABA) publication entitled "The Clause." It was selected as for BCABA's 2010 Writing Award. The legislation proposed in the article later became a DOD legislative proposal for the FY13 NDAA that was quickly shot down
  15. GeoJeff: The only agency that has apparently addressed this issue directly in their FAR supplement is the VA. The VA FAR Supplement's implementing language on this is found at section 836.209, "Construction contracts with architect-engineer firms." That provision flatly states that "[t]his section does not apply to design-build contracts, as defined at FAR 36.102." I could not find any other agency FAR supplement that directly addresses this issue.
  16. ... I have no idea how that emoticon got in there ... it is FAR 1.304((2).
  17. It is impossible for me to follow the logic of those who are contesting GeoJeff's position. Essentially they would have to argue that a provision within FAR Subpart 36.2 applies to FAR Subpart 36.3 despite the fact that nothing in FAR Subpart 36.3 references 36.209, and, to do so would lead to a clearly absurd result. The argument seems even more odd in that they are attempting to apply an agency acquisition regulation to the contracting officer based on this misreading of the FAR. In my view, this would violate FAR 1.304((2) which states, "Agency acquisition regulations shall not ... confl
  18. Cajuncharlie: Try it this way: (1) go to www.jagcnet.army.mil (2) On the right hand side of that webpage, there are some links, scroll down to the link called "TJAG Legal Center and School (TJAGLCS)" and click on it. (3) That will bring up a new webpage. Again look at the tabs to the right and click on "TJAGLCS Publications" (Under the "Publications" Tab) (4) On the new page that comes up, click on "By Category" on the left side. (5) Click on "Next Page" at the top. (6) Click on the two deskbooks, called "2010 Contract Attorney Deskbook" (there are two of them). ... Let me know if that
  19. I just realized that the link will not take you immediately to the contract law deskbook. Here's what you do: (1) Click on "By Category" which is on the left side of the webpage. (2) Click on "Next Page" link which is at the top. (3) Click on "2010 Contract Attorney Deskbook Volume 1 (Emily Colman 09/29/2010)" and "2010 Contract Attorney Deskbook Volume 2 (Emily Colman 09/29/2010)." ... the analytical framework for this particular issue is in Volume 2, but it obviously covers a very wide range of contract issues.
  20. Cajuncharlie is correct. You have provided only one "red flag" that may indicate that the mod is out of scope. The best explanation of the scope issue that I am aware of is set out in the Army JAG School's Contract Law Outline (Chapter 21, Vol 2). It can be accessed here: https://www.jagcnet.army.mil/JAGCNETPortals...aglcsdoclib.nsf I recommend that you (1) read pages "21-6" through "21-18" of the outline carefully; (2) examine the authorities that are cited therein; and then (3) close the loop by getting a legal concurrence from your assigned counsel that it is either in or out of scope
  21. GOVCO: You're welcome. In my experience, fiscal law issues are far more frustrating than contract law issues because the rules are less clear and the guidance (statutory, regulatory and policies) are less helpful. Further, unlike contract law issues, there are less decisions on point as compared with contract law's GAO, BCAs, COFC, CAFC opinions. The Comptroller General provides some guidance, but in my opinion, not enough.
  22. GOVCO: BTW, the Red Book is free online at GAO's website. Volume I can be found here: http://www.gao.gov/special.pubs/d04261sp.pdf Good luck.
  23. GOVCO: Please understand, I wasn't trying to be flippant. The answer to your question cannot be answered by "regulations," generally. Rather, assuming that there is nothing that specifically addresses this in the language of whatever appropriation act provides these funds to your agency, your counsel will have to make a determination regarding whethor or not this is an appropriate use of your appropriated funds. (I presume this comes from your agency's equivalent of "operations and maintenance" appropriation that is found within DOD). Absent express statutory language allowing, or prohib
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