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joel hoffman

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About joel hoffman

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    Following God, Family, Sailing, Motorcycling, Hunting, Volleyball; Acquisition, Source Selections, Contract Administration, Construction, Design-Build Construction, mods, claims, TFD, TFC, project controls,

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  1. The KO should be able to notify the contractor’s by email. in this case, I agree. It could be a constructive change under a Changes clause. If it increases the cost or time required to complete the contract (it shouldn’t), the contractor’s can so respond... If a contractor objects, then the KO could revert back to the previous rate.
  2. If you have access to a copy of “Administration of Government Contracts” , there is some good coverage of scope determination in it. Every acquisition professional involved in contract formation or contract administration should have a personal copy If their office “can’t afford” to buy one.
  3. Eagle, based upon the breadth and extent of your situation and dissatisfaction, as described in various threads, I pray that you will be able to move to another, better agency for your own sake. Your agency “sounds” like a big dud. If you desire to stay in the federal government, it might be necessary to change geographical areas or region though. Good luck to you!
  4. joel hoffman

    Coronavirus Impact

    I need to mention that, if performance is delayed or disrupted by illness, quarantine or other unavailability of labor as a result of this pandemic, such delays could likely be excusable under the Termination for Default clauses but wouldn’t be reimbursable under the terms of the contract. There isn’t necessarily a blank check available to KO’s or Contractors within the four corners of the contract “if contractors are injured financially” for every aspect of financial loss. The Suspension of Work Clause doesn’t provide for an “equitable adjustment”; it excludes profit on costs or losses of profit due to delays beyond the Fault or control of the contractor. Again, hopefully agencies will provide guidance to their KO’s on how to deal with the impacts of the evolving health and economic situation. It is particularly important for relatively inexperienced KO’s to seek qualified guidance from their agency and their legal advisors in order to promote fair and legal response to problems caused by this epidemic.
  5. joel hoffman

    Coronavirus Impact

    I want to caution any KO who might issue a Suspension of Work order to describe why it must be issued and also to include a definite end date to the suspension, if possible. It can be be extended or shortened by a subsequent order. However, try to avoid an indeterminate date for the end of the suspension. Hopefully there will be some agency guidance policy and direction forthcoming due to the OMB and a DoD “Press Releases”. Some of the elements necessary for recovery of expenses - in particular for Unabsorbed Home Office Overhead Expenses (Eichleay Method) are that the work is suspended for an unreasonable amount of time by an act or omission of the contracting officer and that the performance of the work is suspended for an indeterminate period of time. if there is a government directive that would prevent performance or access to a government installation or facility, cite that in the Suspension of Work order. Hooefully, the Federal government will have legislation, funding and programs in place to alleviate or help alleviate the financial impacts of the present epidemic. My Congressman recently indicated that there should be no-interest loans to help businesses and that the government might forgive portions of the loans to firms who retain their employees during this period. The government policy hasn’t been finalized. Just a possible example of how some relief might be available for businesses and employees.
  6. There is a FAPIIS module in CPARS and your agency should have focal points (see below) . I don’t have access to that module. Does your agency have any coverage under its FAR supplement or other agency policy and regulations? “ 42.15 (h) Other contractor performance information. (1) Agencies shall ensure information is accurately reported in the FAPIIS module of CPARS within 3 calendar days after a contracting officer- (i) Issues a final determination that a contractor has submitted defective cost or pricing data; (ii) Makes a subsequent change to the final determination concerning defective cost or pricing data pursuant to 15.407-1(d); (iii) Issues a final termination for cause or default notice; (iv) Makes a subsequent withdrawal or a conversion of a termination for default to a termination for convenience; (v) Receives a final determination after an administrative proceeding, in accordance with 22.1704(d)(1), that substantiates an allegation of a violation of the trafficking in persons prohibitions in 22.1703(a) and 52.222-50(b); or (vi) Determines that a contractor has a history of three or more unjustified reduced or untimely payments to small business subcontractors under a single contract within a 12-month period (see 42.1502(g)(2)). (2) The information to be posted in accordance with this paragraph (h) is information relating to contractor performance, but does not constitute a “past performance review,” which would be exempted from public availability in accordance with section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212). Therefore, all such information posted in FAPIIS will be publicly available, unless covered by a disclosure exemption under the Freedom of Information Act (see 9.105-2(b)(2)). (3) Agencies shall establish CPARS focal points who will register users to report data into the FAPIIS module of CPARS (available at https://www.cpars.gov/). (4) With regard to information that may be covered by a disclosure exemption under the Freedom of Information Act, the contracting officer shall follow the procedures at 9.105-2(b)(2)(iv).“ “9.105-2 (b) (iv) The contracting officer, or any other Government official, shall not post any information in the non-public segment of FAPIIS that is covered by a disclosure exemption under the Freedom of Information Act. If the contractor asserts within 7 calendar days, to the Government official who posted the information, that some of the information posted to the non-public segment of FAPIIS is covered by a disclosure exemption under the Freedom of Information Act, the Government official who posted the information must within 7 calendar days remove the posting from FAPIIS and resolve the issue in accordance with agency Freedom of Information Act procedures, prior to reposting the releasable information.“ As I understand it, the information is first posted in the non-public area in FAPIIS and the contractor has an opportunity to review and respond to it. Per the above, anything posted in FAPIIS has to be that which is publically available.
  7. It isn’t a Corpse. I’d say that they are alive and well! Do you call it request a proposal “RAP”? Demand a proposal “DAP”? Send me one “SMO”? Please send a proposal “PSAP”? Its not a “solicitation”. It’s a request for the contractor to submit a proposal for the action. The goal is to pre-price a change or other type of modification prior to ordering it; or otherwise when issuing a Change order , for instance. .
  8. 52.215-13 subcontractor cost or pricing data - Modifications. “(b) Before awarding any subcontract expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403-4, on the date of agreement on price or the date of award, whichever is later; or before pricing any subcontract modification involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403-4, the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15-2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price), unless an exception under FAR 15.403-1 applies.” If this is one contract action under which the government included both parts, then one would normally expect one subcontract to be awarded or one modification to an existing subcontract to be made For the one contract action. That new subcontract or mod to an a existing subcontract would exceed the threshold in aggregate. unless the second part was competed by the prime or unless the second part is a commercial item or qualified for another exemption, it will not be separately exempted from the requirement for the contractor to submit c or p data simply because two separate p.o.’s , RFQ’s or whatever you want to call the solicitations from the prime to the sub were sent to the sub. If you are talking about a new subcontract for the two parts, the new subcontract will exceed the threshold for c&p data. The Contractor shouldn’t be awarding two subcontracts to one sub for one contract action. Both parts are included in the one prime contractor proposal. If you’re talking about a modification to the subcontract for the two parts included in one contract action, the contractor shouldn’t be issuing two mods to the subcontract. Both parts are included in one prime contractor proposal.
  9. H2H, I’ve already clearly said that if the RFQ for the second part was competitive then there is no need for c or p data. I’ve also said that the OP hasn’t participated in the thread except to ask for “thoughts”. There hasn’t been any clarification at all from the OP.
  10. The term "Request for Proposals" has long been used for requesting proposals for modifications to existing contracts in the Army Corps of Engineers and is still be used for that purpose. I have a Mobile District Contract Administration Manual dated 1975 and I know for a fact that every later revision of that CA Manual still refers to that as an RFP. The South Atlantic Division Contract Administration Manual SADDM 1110-1-1, dated June 2012 and the 2017 update to the USACE Acquisition Instructions (UAI) also use that term and abbreviation. I suspect that other government agencies use the same term to request a proposal for mods in addition to subpart 15.2 new contract proposals. You don't normally issue an RFP for a new contract “to a prime contractor”.
  11. I told you that the clause doesn’t provide every detail for a mod action. For that matter neither do the Changes or differing site conditions clauses. Doesnt mean that there are no other actions that can be required of a contractor to substantiate or for the KO to be able to determine the fair and reasonableness of an offer. So, you are essentially saying that 1) a contractor can circumvent Cost or pricing data simply by splitting up a subs proposal into two or more orders. (I didn’t initially assert that. I merely said have the sub submit other Data.) 2) Nothing requires a contractor or it’s sub to provide other data to allow the contractor or the government to determine that the offer is fair and reasonable. Or did you drop the second part of your assertions? The clause at 52.215-20 does say that the government can require other data than cost or pricing data for both the prime and sub. In addition it does say that the KO could require c and p data below the threshold if necessary.
  12. The subcontractor (and maybe the prime?) are maintaining that c or p data isn’t required (reason not described). H2H thinks that there are 2 separate solicitations involved because the second part was separately solicited by the prime. There is but one contract action. There is but one RFP for an acquisition of 2 parts by the government. If a prime contractor can break down one single acquisition/contract action/government solicitation into multiple orders from the same supplier or subcontractor producer to keep individual prices below subcontract TINA thresholds, it would be easy to nullify the intent, purpose and requirements of TINA. If the OP is with the government, they should seek legal counsel. In addition, some here seem to think that the prime and it’s sub don’t have to provide any data at all to justify the reasonableness of prices beneath the threshold. Voila! Successfully manipulating a single action, avoiding not only c or p but other data necessary to determine price reasonableness! I don’t agree with the idea that paragraph (a)(4) isn’t applicable because (a)(1) is applicable only at the prime level, even when part of the order doesn’t require c or p data. Thus, a contractor is required to provide c or p but isn’t required to provide c or p data and when not required to provide c or p, isn’t required to provide data other than c or p data. If the contractor is maintains that it doesn’t have to provide c or p data for the second part, then -if necessary - the contractor must provide data other than c or p data to justify the reasonableness The Contractor must also evaluate subcontract prices and provide the results. When cost or pricing data are not required for part of a proposal, the FAR explains what type of minimum information is required. I really think that the KO can require c or p for both parts. But I didn’t press that in my first post. I merely said okay then, require data other than C or P to justify the price of the second part. After all, how often is there any government action taken to investigate whether there is defective pricing for most contract actions? The OP apparently didn’t ask their legal counsel and hasn’t participated in this discussion, since the first post. He or she just asked for “thoughts”. My thoughts are 1) make the contractor justify splitting the action into two separate orders, 2) remind the contractor that this is one contract action, one solicitation, one acquisition. 3) If the contractor says that they competed the purchase of the second part, then they still have to evaluate the reasonableness and provide the results- including the basis for their determination. 4) If they didn’t compete the second part, then AT LEAST, require the prime to obtain and provide data other than cost or pricing from the sub, IF necessary to determine the reasonableness. Simply stonewalling isn’t an option. 5) If the government really feels that c or p are required for the second part, Consult your lawyer - insist that they investigate whether a contractor can simply split up purchases from any sub to negate TINA or to avoid providing any data from that sub to justify its price to the prime. 6) Just lifting up your arms and saying “Oh well! isn’t acceptable.
  13. The poll only allows one response when multiple selections may be applicable
  14. This would actually answer the original question regarding requiring c or p data for both parts.
  15. The Scenario might well fit the exception. But ji is right. Just follow the instructions in the clause to justify the carrier routing.
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