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THE ARMY LAWYER Headquarters, Department of the Army THE ARMY LAWYER Headquarters, Department of the Army Department of the Army Pamphlet 27-50-349 January/February 2002 Contract and Fiscal Law Developments of 2001—The Year in Review Major John J. Siemietkowski, Lieutenant Colonel Timothy J. Pendolino, Lieutenant Colonel Michael J. Benjamin, Major Thomas C. Modeszto; Major Kevin M. Walker, Major Karen S. White (USAF), Major Gregg S. Sharp, Colonel Jonathan H. Kosarin, Lieutenant Colonel Steven N. Tomanelli (USAF); Major Timothy M. Tuckey, Ms. Margaret K. Patterson Contents Foreword Contract Formation (Authority; Competition; Contract Types; Sealed Bidding; Negotiated Acquisitions; Simplified Acquisitions; Electronic Commerce; Commercial Items; Multiple Award Schedules; Small Business; Labor Standards; Bid Protests; Contractor Qualification: Responsibility) Contract Performance (Contract Interpretation; Changes; Inspection, Acceptance and Warranties; Pricing of Adjustments; Value Engineering Change Proposals; Terminations for Default; Terminations for Convenience; Contract Disputes Act Litigation) Special Topics (Alternative Dispute Resolution; Foreign Purchases; Classified Contracting; Competitive Sourcing; Construction Contracting; Bonds, Sureties, and Insurance; Cost and Cost Accounting Standards; Deployment and Contingency Contracting; Envi- ronmental Contracting; Foreign Military Sales; Freedom of Information Act; Government-Furnished Property; Information Technol- ogy; Non-FAR Transactions; Payment and Collection; Performance-Based Service Contracting; Privatization; Procurement Fraud; Randolph-Sheppard; Taxation; Intellectual Property; Contract Pricing) Fiscal Law (Purpose; Time; The Antideficiency Act; Construction Funding; Intragovernmental Acquisitions; Nonappropriated Funds; Obligations; Operational and Contingency Funding; Revolving Funds) Appendix A: Department of Defense Legislation for Fiscal Year 2001 Appendix B: Contract & Fiscal Law Web Sites Editor, Captain Erik L. Christiansen Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly ed. 2000) and Military Citation (TJAGSA, 7th ed. 2001). Manuscripts will be by The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, returned upon specific request. No compensation can be paid for articles. for the official use of Army lawyers in the performance of their legal responsibilities. Individual paid subscriptions to The Army Lawyer are avail- The Army Lawyer articles are indexed in the Index to Legal Periodicals, the able for $29 each ($36.25 foreign) per year, periodical postage paid at Charlot- Current Law Index, the Legal Resources Index, and the Index to U.S. Govern- tesville, Virginia, and additional mailing offices (see subscription form on the ment Periodicals. The Army Lawyer and Military Citation are also available on inside back cover). POSTMASTER: Send any address changes to The Judge the World Wide Web at http://www.jagcnet.army.mil (TJAGSA/Publications). Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL- P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors Address changes for official channels distribution: Provide changes to the in the articles do not necessarily reflect the view of The Judge Advocate General Editor, The Army Lawyer, TJAGSA, 600 Massie Road, ATTN: JAGS-ADL-P, or the Department of the Army. Masculine or feminine pronouns appearing in Charlottesville, Virginia 22903-1781, telephone 1-800-552-3978, ext. 396 or this pamphlet refer to both genders unless the context indicates another use. electronic mail to [email protected]. The Army Lawyer welcomes articles from all military and civilian authors on Issues may be cited as ARMY LAW. [date], at [page number]. topics of interest to military lawyers. Articles should be submitted via elec- tronic mail to [email protected] or on 3 1/2” diskettes to: Editor, The Army Lawyer, The Judge Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL-P, Charlottesville, Virginia 22903- 1781. Articles should follow The Bluebook, A Uniform System of Citation (17th JANUARY 2002 THE ARMY LAWYER • DA PAM 27-50-349 Contract and Fiscal Law Developments of 2001—The Year in Review Major John J. Siemietkowski Lieutenant Colonel Timothy J. Pendolino Lieutenant Colonel Michael J. Benjamin Major Thomas C. Modeszto Major Kevin M. Walker Major Karen S. White (USAF) Major Gregg S. Sharp Colonel Jonathan H. Kosarin Lieutenant Colonel Steven N. Tomanelli (USAF) Major Timothy M. Tuckey Ms. Margaret K. Patterson CONTENTS I. FOREWORD.............................................................................................................................................................................. 1 II. CONTRACT FORMATIONS....................................................................................................................................................1 A. Authority..................................................................................................................................................................................1 1. Too Bad, So Sad! ................................................................................................................................................................1 2. Spies Like Us......................................................................................................................................................................3 B. Competition..............................................................................................................................................................................3 1. Competition in Postal Purchasing: A Far Cry from the FAR ............................................................................................4 2. Alphabet Soup: District Court Oks DOL’s Software Buy from GTSI Using the NIH’s ECSP IDIQ GWAC Proving .....5 FASA Trumps CICA 3. GAO Sustains Two Protests of Sole-Source Procurements................................................................................................6 4. AFARS Change ..................................................................................................................................................................9 5. Competition: It Works .......................................................................................................................................................9 6. Collaterally Competition ...................................................................................................................................................10 C. Contract Types ........................................................................................................................................................................10 1. The Final Chapter in the Saga of AT&T v. United States?................................................................................................10 2. Don’t Distribute the Wealth When You Have a Requirements Contract...........................................................................11 3. Estimate, Who Needs an Estimate?...................................................................................................................................11 4. Contractor Gets ‘Delta’ Between Guaranteed Minimum and Ordered Amount in Breached IDIQ Contract...................12 5. In Search of a Partial Requirements Contract ...................................................................................................................13 6. Proposed Restrictions on MACs/GWACs .........................................................................................................................13 JANUARY/FEBRUARY 2002 THE ARMY LAWYER • DA PAM 27-50-349 i 7. Restrictions on Service Contracting Within the Army ......................................................................................................14 D. Sealed Bidding........................................................................................................................................................................14 1. Material or Not Material, That is the Question .................................................................................................................14 2. Variations on a Theme: Responsiveness of Bids with Flawed Bid Guarantees ...............................................................16 3. Evaluating Prices of Bids with Options.............................................................................................................................17 4. If That’s What We Wanted to Evaluate, That’s What We Would Have Said ....................................................................18 5. A Blank Space Does Not Equal Zero ................................................................................................................................19 6. In the World of Mistakes, What’s Good for the Goose is Good for the Gander ...............................................................19 E. Negotiated Acquisitions..........................................................................................................................................................19 1. Proposed Reformatting Found Reasonable .......................................................................................................................19 2. Late Is Late!.......................................................................................................................................................................20
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