Blog - Archive for November 2011
Posted on Thursday, November 17, 2011 6:19:30 PM
In February of this year, Dan Gordon, Administrator for Federal Procurement Policy issued a memorandum entitled “Myth-Busting: Addressing Misconceptions to Improve Communication with Industry during the Acquisition Process”. Dan’s memorandum passed the word to chief acquisition officers, senior procurement executives and chief information officers that early, frequent and constructive engagement with industry is important and authorized under the Federal Acquisition Regulation (FAR) (citing as one example FAR 10.002(b)(2) which authorizes a wide range of market research techniques).
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Posted on Thursday, November 17, 2011 6:17:32 PM
One of the handicaps of being a society of laws is that we use the laws to define the line between acceptable and unacceptable behavior. We set the line of aspirational behavior at the level or laws. We then often explore how far short of that line we can come without being noticed. The law becomes our highest expectation and we even forgive ourselves for falling short. Ethics and morality are vague concepts not clearly defined and often described through the eyes of the beholders. Those standards elude us and today we seen them drift farther into obscurity.
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Posted on Friday, November 11, 2011 1:26:16 PM
We just can’t help but applaud any decision which upholds the very highest of ethical standards. But do OCI's really turn on the appearance of impropriety? See the postscript below.
Posted on Thursday, November 3, 2011 2:17:40 PM
Recently, a large business protested the decision by the Army to set aside a buy for small business competition. The protester contended the contracting officer unreasonably determined that two responsible businesses were capable of satisfying the RFP's requirements at fair market prices.
Prior to deciding to set aside the solicitation for small businesses, the Army issued three sources sought notices. The third notice sought information regarding the capabilities of small businesses' teaming partners, as well as the small businesses themselves. On the basis of this information, the Army concluded a small business set aside was appropriate.
GAO looked at FAR 19.502-2 for the rule. Procurements such as this one must be set aside for exclusive small business participation when there is a reasonable expectation that offers will be received from at least two responsible small business concerns and that award will be made at fair market prices. GAO said it will not question a set aside determination if there is a reasonable basis for the contracting officer's conclusion that small business competition may be expected.
The large business argued the small businesses must be "responsible". GAO said that does not mean there must be a responsibility determination. All that is required is an informed business judgment that there are small businesses capable of performing who will likely submit offers. So, GAO examined the evidence of capabilities and sided with the Army. GAO determined that the record demonstrated a reasonable basis for the contracting officer's conclusion that two small businesses were capable of performing. GAO will not question a small business set aside determination where the record demonstrates a reasonable basis for the contracting officer's conclusion that small business competition may be expected.
What are the lessons? The rule of two is alive and well. Shall still means shall. In this context, "two responsible" small businesses means "capable of performing". Capability is a matter of business judgment for the contracting officer.