Don Mansfield

CLS may be requiring you to include the clause, but that doesn't mean a subcontracting plan will be required. See paragraph (a) of the clause at FAR 52.219-9.

1 hour ago, ghostie said:

it seems as if a claim is a claim where the contractor feels they have a rightful claim to a certain sum of money due to changed contract terms or other issues due from the contract. A protest seems like a non-monetary objection where the contractor feels they were wrongly removed from competition in the contract process?

Let's read the definition more closely now.

1. Who can file a claim? Just the contractor?

2. Does a claim have to be monetary?

3. Can a claim be made by electronic means?

4. What is an assertion in the context of the definition?

5. What is a demand in the context of the definition?

6. What does it mean to seek something as a matter of right?

7. What three things could be sought in a claim?

8. What's the difference between a claim arising under a contract and a claim related to a contract?

We're only on the first sentence of the definition.

First, start with the concepts.

What is a protest? 

What is a claim?

This discussion prompted me to take some online training on records management offered by NARA: https://www.archives.gov/records-mgmt/training/online-lessons

I recommend "Recognizing Records, Non-records, and Personal Files" and the review and practice lesson. The modules are L1.012 and L1.013. This should be basic Federal employee training.

The distinctions that some are making in this thread between source selection decision documents, evaluation reports, individual evaluator notes, etc., are meaningless in the context of Federal Records Management policy. The distinction that matters is between records and nonrecords. There's nothing about an individual evaluator "note" scribbled on a scrap of paper that categorically excludes it from the definition of "record". If it meets the definition of "record" it's a record.

Agree with Carl.

27 minutes ago, joel hoffman said:

Vern, where did I “agree with ji20874 that individual evaluator findings are not records” ??  I have reread my comments in this thread and can’t find that “broad assertion”. I didn’t make any reference to ji’s statement.

FWIW, I don't think you said that either. 

2 minutes ago, joel hoffman said:

Don apparently changed his long held opinion that he “always considered everything a record”. 

No, I didn't. I would still consider everything to be a record. That's different than asserting everything is, in fact, a record.

The reason I considered everything a record was because I only had a layman's understanding of statutory records retention policy. My attorneys advised me to retain everything, so I did. I didn't feel the need to second-guess them on something that didn't really have anything to do with acquisition.

If I had a fellow PCO tell me that they knew better than our attorneys based on GAO case law that had nothing to do with interpreting statutorily-mandated records retention policy, then I hope I would have had the good sense to ignore them.

3 hours ago, formerfed said:

I stand by my prior comment.  If evaluators are instructed to read and/or listen to proposals, examine in light of the evaluation criteria, make notes and come prepared to discuss and produce a consensus report, the report of the only “record.”  That’s all that should be in the contract file.

Wouldn't it matter what was contained in the "notes"? Or is the characterization of the information as "notes" sufficient to conclude that they are not "records"?

2 hours ago, Voyager said:

I edited my OP to try to get to the bottom of this.

Based on the responses you've received, do you agree with the following assertion:

On 8/7/2023 at 12:32 PM, ji20874 said:

The source selection evaluation report, decision document, and so forth are records.  Individual evaluator notes are not records.

7 minutes ago, Vern Edwards said:

I disagree with Don that "everything" is a record. That's too broad.

I didn't say "everything was a record." I said that I considered everything a record--meaning I retained everything produced by the evaluation team.

A Master Agreement for Repair and Alteration of Vessels is a basic agreement used in ship repair contracting. It's covered in DFARS subpart 217.71.

1 minute ago, joel hoffman said:

Well, Don- are you going to support your assertion or opinion?

Why are notes made before the official evaluation a “record” of the source selection evaluation? If so, then why shouldn’t the give and take discussions of each source selection team during the official, group consensus evaluations and reviews, if any by other teams, be recorded and preserved? 

@joel hoffman, I related what I did--I didn't make any claims about my knowledge of case law or how much smarter I was than my agency attorneys.

But since you are asking, here you go:

Quote

[T]he destruction of the individual TEP [technical evaluation panel] members' score sheets is barred by the FAR provisions. The current contract file for the challenged procurement does not "constitute a complete history of the transaction," FAR § 4.801(b) (emphasis added), nor does it “[f]urnish[] essential facts in the event of litigation. FAR § 4.801(b)(4). FAR § 4.801(b) expressly refers to § 4.803, which provides "examples of the records normally contained … in contract files." FAR § 4.803. Specifically, the record as submitted does not contain all "[s]ource selection documentation," as required by FAR § 4.803(a)(13). It was foreseeable that the individual rating sheets could well become relevant to issues arising in a bid protest, particularly in a situation where, as here, the bias of one or more of the panel members is alleged. No preturnatural clairvoyance would be required to envision that possibility. Although the ratings of the individual members of the TEP presumably were taken into account by, and wrapped into, the consensus report of the TEP, without the separate score sheets of the individual panel members, the court is unable to assess any divergence in the ratings which produced that consensus, or in turn, determine whether there existed personal bias in favor of [the winning contractors] on the part of one or more of the panel members. The argument by the government and the intervenor that the individual members' rating sheets were in effect no more than drafts of the final consensus report of the [TEP] is not supportable. The consensus report necessarily represented an amalgam of the views of the panel members and would have tended to suppress individual views.

Pitney Bowes Gov't Solutions, Inc. v. United States, 93 Fed. Cl. 327 (2010)

"Individual evaluator notes" is undefined. They may or may not be the types of records required to be retained by the FAR. It all depends on what information they contain. A broad assertion that "individual evaluator notes" are, in fact, not records demonstrates a profound ignorance of case law.

3 hours ago, ji20874 said:

The source selection evaluation report, decision document, and so forth are records.  Individual evaluator notes are not records.

Are you going to support your assertion or just insist?

I always considered considered everything a record.

3 hours ago, CHILINVLN said:

Question:  Is this acceptable for the organization to do, where does the company draw the line, and what steps would we need to take to reduce/mitigate risk to make this happen?  Do we give them the option to join and charge a fee vs extending an invitation?  Do we just put a statement on the invitation that the event meal has a value less than $25?  Appreciate any advice on this topic.

There's no rule against Company A making the invitation. Just keep in mind that the Government folks you invite are generally required to decline such an invitation. An exception would be if the gratuity would not exceed $20 (not $25) and the sum total of gifts received by the Government employee from Company A over the year would not exceed $50. I have attended such events as a Government employee.

Funny story, somewhat related. A COR I knew used to go golfing with some of the contractors he oversaw. Of course, he would pay his greens fee because having the contractor pay for it would be accepting a gratuity from a prohibited source.

To make the game more interesting, the COR and the contractors would all contribute to a pot of money that would go to the winner. Believe it or not, the COR would win every time. I guess he was just a really good golfer.

I saw that yesterday. The SBA is putting a hold on 8(a) applications: https://fedscoop.com/sba-pauses-applications-for-8a-business-program/ 

Why do you think it's personal services?

The Fluor case is inapposite. If the contractor is in default, one of the options is to extend the completion date.

Quote

It is a well-established principle in Government contract law that while the Default clause gives the Government the absolute right to terminate the contract upon failure of the contractor to make timely delivery of the procurement item, the clause permits the Contracting Officer to exercise his right to use discretion in deciding whether to immediately terminate the contract, or any part thereof, or, among other things, to allow the contractor to continue performance under a new delivery schedule. No new consideration is necessary to support what the Default clause already permits the Contracting Officer to do. It is also a principle of law that a waiver of delivery date can be inferred from the Government's behavior after the contractor fails to make delivery as promised. Acceptance of a new delivery date can be established by agreement of the parties or by acts of the Government. Here again, acceptance by the Government can be implied from the circumstances.

Free-Flow Packaging Corp., GSBCA 3992, 75-1 BCA ¶11,332

When I used to teach CON 360, I would have to grade essays. Sometimes I would get an essay that demonstrated a fundamental ignorance of contracting concepts. I would wonder how in the world the student was able to get in the class. I felt the same way reading that VAO article.

Also, if the contract already exists, why not see if it includes CAS clauses?

What do you think "treated as commercial means"? I think it means you apply the regulations as if the products or services are commercial. Unless otherwise specified, you don't distinguish between actual commercial products or services and products or services being "treated" as commercial. I don't know how else to interpret that.

Unless these qualifications were written with a specific person in mind, they are absurd.

Just ignore it. If someone calls you on it, explain how it contradicts the regulations.

Why not create a line item for the option?

If you are "treating" the acquisition as commercial, see FAR 12.214.