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Acquisition Law

This Community serves to assist non-lawyers in the Acquisition Workforce by providing a centralized location for researching acquisition law issues. A myriad of laws and regulations control the actions of the Acquisition Workforce, from the development of the acquisition requirement through contract close out and final fund disbursement.

NOTE: This should not be construed as legal advice.

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Resource / Acquisition Law
Ethics
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Fraud Risk Management:2018-2022 Data Show Federal Government Loses an Estimated $233 Billion to $521 Billion Annually to Fraud, Based on Various Risk Environments

Given the scope of this problem, a government-wide approach is required to address it. The Office of Management and Budget, working with agencies and the oversight community, should develop guidance to improve fraud-related data—providing a more uniform approach to what data is collected and how.

 

Former Navy Civilian Employee and Former Executive Indicted in Bribery Scheme Involving Over $100 Million in Government Contracts

A former civilian employee of San Diego-based Naval Information Warfare Center and a former executive with a South Carolina defense contractor were charged in an indictment unsealed today with participating in a bribery scheme to trade expensive meals, jobs and a ticket to a premiere sporting event for help obtaining more than $100 million in government contracts.

 

Following a finding that Col. Bader had violated 18 U.S.C. § 207(c) and 5 C.F.R. § 2635 and that his performance in the rank of Brigadier General was not “satisfactory,” Col. Bader was retired at the rank of Colonel despite his attainment of the higher rank of Brigadier General.

...the government demonstrated that Col. Bader engaged in serious misconduct and the Claims Court properly granted the government’s motion for judgment on the administrative record. The decision of the Claims Court is affirmed.

 

 

 

Appropriations Law | GAO Court Cases | Ethics | Hot Topics | Home

Lady Blindfolded Ethics

Matters dealing with the ethical conduct of DoD business.

Discussions / Acquisition Law
RDT&E Funding vs Procurement Funding
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Can procurement funding be used with an RDT&E contract for fielding ? 

Discussions / Acquisition Law
Working across CLINs
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 Suppose I am a COR on a firm fixed price contract that has multiple CLINS.  Some CLINs are RDT&E CLINs and some are OM CLINS.  Suppose that it recently come to my attention that the vendor has a history of internally redirecting labor resources from one of the OM CLINs to fill apparent labor gaps on multiple RDT&E CLINs (or so they claim).  In other words, they claim they do not have enough labor category FTEs on the RDT&E CLINs so they utilized FTEs from the OM CLINs, without any noticeable detriment to the OM CLIN.   Is this a violation of anti-deficiency?  My interpretation is no.  Would this be a violation of some other acquisition/ financial rule?  If yes, in my role as COR what might I recommend remedying this scenario?  

My experience has been one of the advantages of a FFP contract is the vendor can make operational CLIN level adjustments to labor without the Governements involvement in order to achieve the objectives of the CLINs, but what makes this unique is the aspect of sharing resources from an OM CLIN to an RDT&E CLIN.

Resource / Acquisition Law
GAO/Federal Court Decisions
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TLS Joint Venture, LLC, GAO sustained the protest

TLS Joint Venture, LLC, of Grovetown, Georgia, protests the award of a contract to Silas Frazier Realty, LLC (SFR), of Atlanta, Georgia, under request for proposals (RFP) No. N0016723R0014, issued by the Department of the Navy, Naval Sea Systems Command, for custodial services. TLS argues that SFR was ineligible for award because its registration in the System for Award Management (SAM) lapsed prior to award.

NAUSET CONSTRUCTION CORPORATION, Appellant v. SECRETARY OF THE ARMY, National Guard Bureau

Nauset Construction Corp. appeals the final decision of the Armed Services Board of Contract Appeals, which dismissed Nauset’s appeal of a default termination of a government contract as untimely under the Contract Disputes Act. United States Court of Appeals for the Federal Circuit affirms the decision of the Board dismissing Nauset’s appeal.

MVM, Inc., of Ashburn, Virginia, protests the award of a contract to Acuity International, LLC of Reston, Virginia, under request for proposals (RFP) No. 47QMCH23R0001, issued by the General Services Administration (GSA) GAO sustained the protest.

MVM, Inc., of Ashburn, Virginia, protests the award of a contract to Acuity International, LLC of Reston, Virginia, under request for proposals (RFP) No. 47QMCH23R0001, issued by the General Services Administration (GSA) for transportation services for unaccompanied children in the custody of the Department of Health and Human Services. The protester challenges various aspects of the agency's evaluation of proposals and source selection decision, including the agency's evaluation of key personnel and the sufficiency of the agency's affirmative responsibility determination.

 

 

THE DISTRICT COMMUNICATIONS GROUP, LLC and CRUXDCG, LLC v. THE UNITED STATES, Department of Veterans Affairs

Contracting Officer’s OCI Determination was Irrational. The United States, including the United States Department of Veterans Affairs, its officers, agents, and employees, is hereby PERMANENTLY RESTRAINED AND ENJOINED from continuing to obtain performance on the contract.

 

GAO Protest: LOGMET LLC action of General Services Administration

GAO B-422200. Protest is sustained where the record does not demonstrate the agency reasonably determined that the labor categories required by the solicitation fall within the scope of the awardee’s proposed labor categories from its federal supply schedule contract.

Discussions / Acquisition Law

Discussions / Acquisition Law
RDT&E Funding vs Procurement Funding
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QUESTION SCENARIO
April 16, 2024 - 02:14pm

QUESTION

Can procurement funding be used with an RDT&E contract for fielding ? 

SCENARIO
COMMENTS
Discussions / Acquisition Law
Working across CLINs
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QUESTION SCENARIO
April 11, 2024 - 09:55pm

QUESTION

 Suppose I am a COR on a firm fixed price contract that has multiple CLINS.  Some CLINs are RDT&E CLINs and some are OM CLINS.  Suppose that it recently come to my attention that the vendor has a history of internally redirecting labor resources from one of the OM CLINs to fill apparent labor gaps on multiple RDT&E CLINs (or so they claim).  In other words, they claim they do not have enough labor category FTEs on the RDT&E CLINs so they utilized FTEs from the OM CLINs, without any noticeable detriment to the OM CLIN.   Is this a violation of anti-deficiency?  My interpretation is no.  Would this be a violation of some other acquisition/ financial rule?  If yes, in my role as COR what might I recommend remedying this scenario?  

SCENARIO

My experience has been one of the advantages of a FFP contract is the vendor can make operational CLIN level adjustments to labor without the Governements involvement in order to achieve the objectives of the CLINs, but what makes this unique is the aspect of sharing resources from an OM CLIN to an RDT&E CLIN.

COMMENTS
Discussions / Acquisition Law
What is the reference for definitions of PEGs: EE PEG, SS PEG, TT PEG, etc.?
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QUESTION SCENARIO
February 16, 2024 - 02:47pm

QUESTION

What is the reference that defines what is covered by each PEG?  For example, Equipping (EE) PEG covers procurement of new systems/equipment.  I believe it would also cover upgrades and modifications to systems, but I don't see that any regulation that actually says that. If you could provide assistance with identifying the policy, regulation, etc. of what each PEG covers, that would be appreciated.

SCENARIO
COMMENTS
Discussions / Acquisition Law
Documentation Required for a UFR (Unfunded Requirement)
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QUESTION SCENARIO
February 1, 2024 - 04:08pm

QUESTION

What documentation is required for a UFR? Do I need a 1067? A J&A for sole source? does it need to be competitive and go through source selection if it doesn't have a J&A?

SCENARIO
COMMENTS
Discussions / Acquisition Law
DoDI 5000.87 for a DBS
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QUESTION SCENARIO
January 24, 2024 - 07:11pm

QUESTION

Please let me know if this is posted in the appropriate forum.

Given the scenario below, my questions are:

  1. Assuming we meet the definition of a DBS, are we correct in our believe that we have to follow 5000.75 even though our leadership got as 'approved' to use 5000.87
  2. Is there any option to remove some of the 5000.75 requirements that seem to conflict with the spirit and ability to operate effectively under 5000.87? For example, can we propose a tailoring plan? Or get an "exception" to following the 5000.75 requirements?
SCENARIO

Let's say I'm on a DoD program that is approved to use DoDI 5000.87. But the software the program is building also meets the definition of a Defense Business System (DBS). 

If I read 5000.87 correctly, we are still responsible for following 5000.75. But 5000.75 takes away a significant amount of flexibility that 5000.87 provides. For example, 5000.75 requires an ATP between different project phases that would make it, at best, much more challenging to implement effective agile methods. 5000.75 institutes what we call "big-up-front-planning", which is at odds with good agility. The related BCAC requirements may also lead to heavier documentation. 

COMMENTS
Discussions / Acquisition Law
10 U.S.C. 2319 - Encouragement of new competitors exemption
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QUESTION SCENARIO
January 19, 2024 - 07:46pm

QUESTION

Hello,

I have recently received a notice from the engineering technical authority that they would not entertain additional sources because the current source is under a Performance Based Logistics (PBL) Contract. I am wondering if this is an exemption to the 10 U.S.C. 2319 - Encouragement of new competitors requirement to develop sources? The additional source proposed a cost savings if evaluated and approved. 

SCENARIO

There is a requirement to request the ability for a technical authority to evaluate alternate sources if an item is believed to be overpriced and has limited sources. The technical authority is supposed to determine if they have sufficient information and process to qualify new manufactures. Competition In Contracting Act requires the evaluation of qualified manufacturers if it is in the best interest of the government and the sources are limited. In this case the item being procured has a restricted sources list and requires qualification prior to being able to bid on making the item.

COMMENTS
Discussions / Acquisition Law
3600 Budget Activities
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QUESTION SCENARIO
December 7, 2023 - 03:35pm

QUESTION

Is their law/ regulation / precedent for budget activities within the 3600 appropriations to be treated as sub-appropriations. IE is there something out there that says it would be a violation of the Purpose Statute to put funds from multiple budget activities onto a single Contract Line Item Number (CLIN)?

SCENARIO
COMMENTS

Events / Acquisition Law

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Announcements / Acquisition Law

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Resources / Acquisition Law

Community Resource / Acquisition Law
Ethics
Fraud Risk Management:2018-2022 Data Show Federal Government Loses an Estimated $233 Billion to $521 Billion Annually to Fraud, Based on Various Risk Environments

Given the scope of this problem, a government-wide approach is required to address it. The Office of Management and Budget, working with agencies and the oversight community, should develop guidance to improve fraud-related data—providing a more uniform approach to what data is collected and how.

 

Former Navy Civilian Employee and Former Executive Indicted in Bribery Scheme Involving Over $100 Million in Government Contracts

A former civilian employee of San Diego-based Naval Information Warfare Center and a former executive with a South Carolina defense contractor were charged in an indictment unsealed today with participating in a bribery scheme to trade expensive meals, jobs and a ticket to a premiere sporting event for help obtaining more than $100 million in government contracts.

 

Following a finding that Col. Bader had violated 18 U.S.C. § 207(c) and 5 C.F.R. § 2635 and that his performance in the rank of Brigadier General was not “satisfactory,” Col. Bader was retired at the rank of Colonel despite his attainment of the higher rank of Brigadier General.

...the government demonstrated that Col. Bader engaged in serious misconduct and the Claims Court properly granted the government’s motion for judgment on the administrative record. The decision of the Claims Court is affirmed.

 

 

 

Appropriations Law | GAO Court Cases | Ethics | Hot Topics | Home

Lady Blindfolded Ethics

Matters dealing with the ethical conduct of DoD business.

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Community Resource / Acquisition Law
GAO/Federal Court Decisions
TLS Joint Venture, LLC, GAO sustained the protest

TLS Joint Venture, LLC, of Grovetown, Georgia, protests the award of a contract to Silas Frazier Realty, LLC (SFR), of Atlanta, Georgia, under request for proposals (RFP) No. N0016723R0014, issued by the Department of the Navy, Naval Sea Systems Command, for custodial services. TLS argues that SFR was ineligible for award because its registration in the System for Award Management (SAM) lapsed prior to award.

NAUSET CONSTRUCTION CORPORATION, Appellant v. SECRETARY OF THE ARMY, National Guard Bureau

Nauset Construction Corp. appeals the final decision of the Armed Services Board of Contract Appeals, which dismissed Nauset’s appeal of a default termination of a government contract as untimely under the Contract Disputes Act. United States Court of Appeals for the Federal Circuit affirms the decision of the Board dismissing Nauset’s appeal.

MVM, Inc., of Ashburn, Virginia, protests the award of a contract to Acuity International, LLC of Reston, Virginia, under request for proposals (RFP) No. 47QMCH23R0001, issued by the General Services Administration (GSA) GAO sustained the protest.

MVM, Inc., of Ashburn, Virginia, protests the award of a contract to Acuity International, LLC of Reston, Virginia, under request for proposals (RFP) No. 47QMCH23R0001, issued by the General Services Administration (GSA) for transportation services for unaccompanied children in the custody of the Department of Health and Human Services. The protester challenges various aspects of the agency's evaluation of proposals and source selection decision, including the agency's evaluation of key personnel and the sufficiency of the agency's affirmative responsibility determination.

 

 

THE DISTRICT COMMUNICATIONS GROUP, LLC and CRUXDCG, LLC v. THE UNITED STATES, Department of Veterans Affairs

Contracting Officer’s OCI Determination was Irrational. The United States, including the United States Department of Veterans Affairs, its officers, agents, and employees, is hereby PERMANENTLY RESTRAINED AND ENJOINED from continuing to obtain performance on the contract.

 

GAO Protest: LOGMET LLC action of General Services Administration

GAO B-422200. Protest is sustained where the record does not demonstrate the agency reasonably determined that the labor categories required by the solicitation fall within the scope of the awardee’s proposed labor categories from its federal supply schedule contract.

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Community Resource / Acquisition Law
Appropriations Law
Appropriations Law key on a keyboard
President Joe Biden unveiled his fiscal 2025 budget request this week, calling for $7.3 trillion in federal spending and projecting a $1.8 trillion deficit for the year. Reproduced with permission. Published March, 12, 2024. Copyright 2023 by BGOV LLC (877-498-3587) https://about.bgov.com/

Bloomberg Government reporters and analysts held a webinar today to discuss spending and revenue proposals, economic assumptions, agency highlights, and next steps in Congress. 

This section includes content curated for information purposes only.

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Community Resource / Acquisition Law
Hot Topics

This section includes acquisition law issues that are of current interest to the A&S workforce, as well as recent Court, Board, or GAO decisions that have an impact across the Defense Acquisition Workforce.

FREEDOM OF INFORMATION ACT Additional Guidance and Reliable Data Can Help Address Agency Backlogs

Federal agencies are generally required to process Freedom of Information Act (FOIA) requests within 20 working days. However, the government-wide request backlog has risen over the last decade (see figure), demonstrating that agencies face persistent challenges processing requests within required time frames.

 

GAO Report: DOD Should Encourage Greater Use of Existing Expertise to Review Indemnification Requests

The unusually risky work that DOD's contractors sometimes do—e.g., building hypersonic weapons—may not be covered by insurance. As such, contractors rely on government indemnification to shield them from financial liability if there's a catastrophic incident. Recently however, DOD has had challenges negotiating contractor requests for indemnification.

 

FY 2025 Budget supports and implements 2022 National Defense Strategy

Per the NDS, DoD will act urgently to sustain and strengthen U.S. military credibility and deterrence capability, guided by four top-level defense priorities: – Defend the U.S. homeland, paced to the growing multi-domain threat posed by the People’s Republic of China (PRC) – Deter strategic attacks against the United States, our allies, and our partners – Deter aggression, while being prepared to prevail in conflict, should deterrence fail, focusing first on the PRC challenge in the Indo-Pacific, followed by the Russia challenge in Europe – Build a resilient Joint Force and defense ecosystem

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Community Resource / Acquisition Law
Related CoPs

Other Transactions

 

The Other Transactions Community of Practice (aka the OT CoP) is designed to be your destination of choice for information regarding Other Transactions within the Department of Defense. At the OT CoP, you will find--

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Community Resource / Acquisition Law
Policy
The Red Book

Principles of Federal Appropriations Law, also known as the Red Book, is GAO’s multi-volume treatise concerning federal fiscal law. The Red Book provides text discussion with reference to specific legal authorities to illustrate legal principles, their application, and exceptions. These references include GAO decisions and opinions, judicial decisions, statutory provisions, and other relevant sources.

 

https://www.gao.gov/legal/appropriations-law/red-book

32 CFR 84 - JOINT ETHICS REGULATION

Regulatory Information

 

https://www.govinfo.gov/app/details/CFR-1998-title32-vol1/CFR-1998-title32-vol1-part84

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ACQuipedia Articles

pngwing.com.pngAcquisition Law related ACQuipedia articles provide a continuous flow of information from one topic to another
 

 

Discover a complete list of DAU sponsored ACQuipedia articles here: ACQuipedia

 

 

 

 

 

Acquisition Plan

A formal written document reflecting the specific actions necessary to execute the approach established in the approved acquisition strategy and guiding contractual implementation. See Federal Acquisition Regulation (FAR) Subpart 7.1 and Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 207.1.

Anti-Deficiency

An organization is anti-deficient when it obligates more funds than are made available to the organization or when obligations are made before the organization actually gets the authority to obligate funds.

Apportionment of Appropriated Funds

The action by which the Office of Management and Budget (OMB) distributes amounts available for obligation in an appropriation account. The distribution makes amounts available on the basis of specified time periods (usually quarters), programs, activities, projects, objects, or combinations thereof. The apportionment system is intended to achieve an effective and orderly use of funds. The amounts so apportioned limit the obligations that may be incurred. See Resource Allocation Process (RAP).

 

Bona Fide Need

The Bona Fide Need rule (law) requires appropriated funds be used only for goods and services for which a need arises during the period of that appropriation's availability for obligation.

Contract Claims

A claim is a written demand or assertion by one of the contracting parties seeking (i) payment of a specific sum of money, (ii) adjustment or interpretation of contract terms, or (iii) other relief arising under or relating to the contract. A written demand or assertion by the contractor seeking payment over $100,000 is not considered a claim under the Contract Disputes statute until certified in accordance with the Act. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim. The submission may eventually be converted to a claim if it is disputed or is not acted upon in a reasonable time. A request for an equitable adjustment is a type of claim. A contract dispute exists when a claim remains unresolved following preliminary discussion between authorized representatives of the contracting parties.

 

Contract Termination
 

Contract Termination can be defined simply as "ending ones obligations under a contract." The government is able to terminate its obligations through special clauses called "termination clauses". The government may terminate or end a contract at any time whether it is for the convenience of the government or due to fault by the contractor. The procedures for terminating a contract vary depending on whether the contract is being terminated for the government's convenience or due to the contractor's fault.

Data Rights

Strategy to identify and manage the full spectrum of IP (e.g., technical data and computer software deliverables, patented technologies, and appropriate license rights) from program inception and throughout the life cycle. The IP Strategy will describe how program management will assess program needs for, and acquire competitively when...

Freedom of Information Act

The Freedom of Information Act (FOIA), 5 U.S.C. 552 was signed by President Johnson on July 4th, 1966, to take effect July 5th, 1967. This act applies to all Federal Government Executive agencies to include the Department of Defense.

Inherently Governmental Functions
 

An inherently governmental function is one that is so closely related to the public interest as to mandate performance by Federal Government employees.

Past Performance

Past performance information is relevant information for source selection purposes regarding a contractor's actions under previously awarded contracts. It includes the contractor's: --Record of conforming to contract requirements and to standards of good workmanship --Record of forecasting and controlling costs --Adherence to contract schedules (including administrative aspects of performance) --History of reasonable and cooperative behavior and commitment to customer satisfaction --Record of integrity and business ethics Business-like concern for the interest of the customer

 

Ratification

“Ratification” means the act of approving an unauthorized commitment by an official who has the authority to do so (FAR 1.602-3).

Types of Funds

To execute an acquisition program, budget authority provided by Congress is needed in order to incur obligations and make payments. Budget authority is most commonly provided by an appropriations act, in which Congress specifies the purpose(s) for which each particular appropriation may be used as well as the amount of budget authority provided under each appropriation. DoD receives many appropriations, most of which can be grouped into the five major categories: Research, Development, Test and Evaluation (RDT&E); Procurement; Operation and Maintenance (O&M); Military Personnel (MILPERS); and Military Construction (MILCON). Volume 2A, Chapter 1, of the DoD Financial Management Regulation [DoD 7000.14-R (FMR)] provides guidance as to the proper use of these appropriations categories to finance program efforts.

 

 

 

 

 

 

 

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