Don Mansfield

Who cares what Don Mansfield thinks?

No. You just have to meet the definition of "woman-owned small business concern" at FAR 2.101. See FAR 19.703(a)(1). If you want to pursue WOSB or EDWOSB set-asides, then you have to submit documents to the WOSB Program Repository.

I know I once read a protest decision where the source selection authority was being cross-examined as to why they chose to pay more for an item that was rated technically superior than another offered item. They were unable to explain, fundamentally, what they were buying, much less why the Government should pay more for one item over another. I couldn't find the case, but I know it's out there.

I agree, we should stop. We're beginning to act like Nerds.

A very rare occurrence: http://www.supremecourt.gov/qp/14-00916qp.pdf

joel, FAR 12.302( a ) allows tailoring of FAR 52.212-4. A CO could tailor FAR 52.212-4 to be silent regarding changes if it were customary commercial practice or if a waiver were granted. Don't think about it in practical terms. It was a hypothetical example used to make a point. All that matters is that it is possible.

Sounds good, Jacques. I enjoyed the discussion. Thank you.

No deal. I will not conform to any code that puts the onus on the reader to figure out the author's "overall point" or excuses errors in facts or reasoning when the author hasn't bothered to take the time to think about what they are writing, verify their facts, and write clearly. We hold each other to very high standards in this forum and are better for it. I propose a simpler code: take responsibility for every word you write. Verify your facts. If you can't prove a statement is true, then qualify it with "I think" or "I'm not sure, but...". If you make a mistake and someone corrects you, say thank you--don't make excuses like "this is only a discussion forum". Deal?

Jacques, 1) The SBA regulations require set-asides overseas. The FAR does not. They are inconsistent. Even if you believe that a PCO would be permitted to set aside an individual acquisition overseas under the FAR, the procedure is not mandatory under the FAR for all acquisitions meeting the conditions for a set-aside. 2) The FR quote reflects the FAR Council's position on what COs must do when there is a conflict between the SBA regulations and the FAR. They say you must follow the FAR. It does not say that following the FAR will result in winning a protest. 3) The actual changes to the FAR text could be little. However, I don't see how that's relevant. The impact would be undeniably significant. A change in policy requiring the use of existing FAR part 19 provisions and clauses relating to set-asides for overseas acquisitions would be required to go through rulemaking. I hope you don't think that this type of change could be made by technical amendment. 4) As I said earlier, set-asides are not mandatory worldwide under the FAR. Although the the SBA's rule did go through the rulemaking process, it didn't contain any provisions and clauses for COs to use to implement the policy. Do you think contracting office can just create their own without regard for 41 U.S.C. 1707 and the Paperwork Reduction Act? 5) No, I'm not suggesting anything to or advocating for any particular solution for the COs and their bosses faced with this issue today. I'm just bringing the issue to light. Overseas contracting offices know better than me how to solve their problems.

onliberty, Yes, but you wrote that once a clause is in a contract, "then the authority comes not from the clause, but from the contract." That's the part that was wrong. I'm not offended by anything you wrote. However, I'm losing faith that you will "get it".

So clauses in contracts don't give the CO authority, it's the contract that does? Hmm, let me just check my FAR. But I'm the one in bizarro-world.

Jacques, There would still be an inconsistency between the FAR and the SBA regulations. The SBA regs mandate set-asides worldwide when the requisite conditions are met and the FAR does not. According to the FAR Council: [see 74 FR 11823]. There's also procedural hurdles to be worked out if overseas contracting offices follow a policy of mandatory set-asides. For example, what provisions will be used to require offerors and quoters to represent themselves as small business concerns? What clauses will be used to implement the limitation on subcontracting? Will there be a limitation on subcontracting? When the policies and procedures of FAR part 19 went through the rulemaking process, their application was limited by FAR 19.000( b ). There was no public notice that they would apply worldwide (except for FAR subpart 19.6) or opportunity for public comment.

Jacques, I mean that COs are not required by the FAR to set aside acquisitions for small businesses overseas. If an overseas contracting office adopted such a policy, it would be a deviation as defined by FAR 1.401(f). A policy need not conflict with the FAR to be a deviation as defined by FAR 1.401(f). I think that if there were a protest against an overseas CO for not setting aside an acquisition when required by 13 CFR 125.2(f), the Government would lose. I don't think reliance on FAR 19.000( b ) would work as a defense anymore, given the change in the SBA regulations. This is probably why the State Department and the Army aren't fighting these protests.

Jacques, Assuming, arguendo, that overseas COs could set aside acquisitions for small business concerns without deviating from the FAR, they are not required to. If an overseas contracting office were to issue a policy mandating set-asides pursuant to 13 CFR 125.2(f), that would be a deviation as defined at FAR 1.401(f).

onliberty, I would not say that your statement--"the authority for changes is in FAR 52.212-4"--is true. What Vern, now joel, and I are trying to get you to understand is that FAR 52.212-4( c ) does not provide "authority" for a CO to bilaterally change a commercial contract. If a CO can remove that paragraph from the contract and still modify the contract bilaterally, then that paragraph must not have been the basis for the CO's authority. The same is true for noncommercial contracts--express contractual authority is not required to bilaterally modify a contract.

Boof, Why doesn't State fight the protests? Is the GAO telling you that you'll lose?

onliberty, The CO has the authority to tailor FAR 52.212-4 to remove paragraph ( c ) pursuant to FAR 12.302. If a CO did purposely remove paragraph ( c ), why would a board or court apply to read it in via the Christian Doctrine? So, back to my original question. Would a CO have the authority to make a bilateral change to a commercial contract if FAR 52.212-4( c ) were removed?

onliberty, What do you mean by "authority for changes"? FAR 52.212-4( c ) says "Changes in the terms and conditions of this contract may be made only by written agreement of the parties." If that statement were removed from the contract, would the CO no longer have the authority to modify the contract bilaterally?

Jacques, Before this discussion gets too unwieldy, let me try to summarize your argument. According to you, FAR 19.000( b ) should be read something like this-- Is that what you're saying?

Jacques, FAR 17.200 states: You may want to use a different example. I don't know what you mean by "deviation package", so I don't know how to describe what one would look like. Using the policies and procedures of FAR subpart 19.5 outside the United States and its outlying areas would be a deviation (as defined at FAR 1.401(a)) from FAR 19.000( b ), which limits application of FAR part 19 to the United States and its outlying areas. You seem to suggest that the FAR already permits a CO to limit competition to small business concerns regardless of place of performance. However, such an interpretation renders FAR 19.000( b ) meaningless. If an overseas CO were to limit competition to small business concerns for a contract requiring performance overseas, they would need quoters or offerors to represent themselves in connection with their quote or offer. Use of the provision at FAR 52.219-1, Small Business Program Representations, in a solicitation when the contract will be performed outside the United States and its outlying areas would be a deviation (as defined at FAR 1.401(e)) from the prescription at FAR 19.309( a )(1). Same goes for use of FAR 52.219-2, Equal Low Bids, and FAR 52.219-28, Post-Award Small Business Program Rerepresentation.

Jacques, Per FAR 19.000( b ), the policies and procedures of FAR part 19 do not apply outside the United States and its outlying areas. Thus, if a contracting officer outside the U.S. and its outlying areas were following the policies and procedures of FAR subpart 19.5 (i.e., limiting competition to small business concerns), their actions would be inconsistent with the FAR. This would meet the definition of "deviation" at FAR 1.401( a ). You suggest that a CO can solely rely on FAR 6.203 to limit competition to small business concerns for overseas COs. Yes, FAR 6.203( c ) directs compliance with FAR subpart 19.5, but you can't ignore FAR 19.000( b ). Even if I bought your argument, which I don't, it would not permit set-asides when using SAP per FAR 6.001( a ).

So what you're saying is that incorporation of proposals by reference can get you into a real jam. Sorry, couldn't resist.

dneal23, I'm with you. FAR 13.303-5( b ) states: The FAR sets a limit for individual purchases at the SAT. It authorizes agencies to set a higher threshold in their regulations, but neither DoD nor the Army did that.

So is the basis of the claim that the vendor delivered an acceptable item that was improperly rejected?

Which agency do you work for?