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. For DoD use of GSA Schedule contracts, specifically, see
  2. ...checks and balances. See Vern's thread concerning Glen Defense. Of course it didn't seem to work there...
  3. - Well, it seemed that there was a lot of different input and interaction, including asking others' opinions in this very thread. Hmmm.
  4. Not that it makes any difference but if you can establish a pool with different Small business classifications and allow them to compete on some equal basis after award, I like the idea. I agree with Carl that a PCO should use the team approach to investigate and implement the acquisition approach.
  5. Anon2010, do the offerors propose a multiplier coefficient or coefficients to be applied to the RS Means estimating database for each year or option of the contract? I'm guessing that, when you include a seed task order, each offeror would develop its own material and labor takeoffs and price them IAW RS Means and its own labor rates then apply the proposed coefficient to determine a price for the task. Is that correct? Edit: I read the IGI5336.9201, Chapter 3. It suggests having the competitors propose a sliding scale of coefficients, based upon the size of the task and normal vs overtime work, etc. It suggests either using an updated RS Means or other cost estimating database annually, with static coefficients, or establishing separate coefficients for each year of the contract with no updates to the database. The database is also localized for the applicable site. It RECOMMENDS using a sample task order "to be awarded later" under the contract. Competitors will individually perform quantity takeoffs and apply the coefficient factors to determine the price of the task. I assume that this helps the AF to visualize the effect of at least the first year's proposed coefficient(s) on the project price for price comparison purposes. Unless another policy applies, the sample task with binding quantities and price is only a recommendation in the IG. At any rate the process uses binding coefficients, which ought to partially answer Retreadfed's question. I can see some real advantages to using binding sample task vs. negotiating the first task after award. Regardless, the organization should have skilled estimators and negotiators for subsequent task order negotiating Are you still engaged here, Anon?
  6. I can vouch for Vern's mention of the use of Fixed Price with Award Fee before it was mentioned in FAR. My office was using FFP with award Fee around the 1989-1990 timeframe. The various Design-Build Construction contract authorizations specifically mentioned in law and FAR, which are exceptions to the Brooks Act procedures for obtaining design services through Qualifications Based Selection, all describe single award contract actions. Organizations have adapted the two-phase method in FAR 36.3 for awarding base Multiple Award Task Order contracts, using a seed task order in Phase 2. This was challenged ten years ago or so in one of the Courts, which upheld its use. The practice of not establishIng fixed prices in the MATOC competition was also mentioned in several cases but was not objected to by the Courts. In those instances, prices for each unique D-B task order are established by task order competition.
  7. Establishing the Competitive Range: The Part 15, Source Selection procedures before the 1997 rewrite discouraged eliminating proposers in narrowing the range. The wording said to the effect that all offerors with a reasonable chance for award should be included -when there is doubt, keep them in the comp. range. Most of our KO's were very conservative, fearing protests. I discovered that firms often did not really want to be dragged through an extended award process if they weren't a top contender for the award. Firms would ask me, the negotiator, if I could give them any indicator of where they stood because their bonding capacity was being tied up. One construction company on a large design-build competition said they were really interested in some big school system projects coming up in the Miami area near the Air Base where our project was located. Their project manager wanted to know if they were a top contender on our acquisition and wanted my advice on what to do. This was also before the 2 phase D-B short-listing process was added to FAR. I simply told him that if it were me, I'd go after the other job. They thanked me profusely - but I asked them not to mention why they were withdrawing... I was the first in our organization to aggressively pursue narrowing the competitive range. I was usually successful under one KO but could seldom convince the other KO to eliminate all but the most competitive proposers. Even after the 1997 Part 15 Rewrite encouraged paring of all but the most highly rated proposals, it was like pulling teeth with the timid KO. Now, we know that industry usually welcomes being released as early as possible so they can pursue other work. Multi-Step Proposal Evaluation Processes: I think that multi-phased or multi-step proposal evaluation processes used in the past couple of years have pushed the envelope, too. Vern can better fill in the details (plus I am on a plane with no Internet access) . But there has been some reluctance by organizations to more efficiently pare down the field before evaluating all portions of the proposals, including price. A narrow reading of the FAR is a stumbling block for some organizations or individuals.
  8. H2H, I don't disagree with you! I agree with that presumption.
  9. I think it seems to presume that the persons to whom the order is given are not capable of voluntarily reducing regulations or regulatory costs. I think that is a reasonable presumption. In my Command, there was and is a systematic thought process to make decisions based on "lessons learned" on contracts without any requirement for the originator/author to perform or provide a root cause analysis. The problem may have occurred only once, once in a hundred projects or even once in a thousand projects. It may have been caused by personality conflicts between contractor and government, human error, etc. I'm not speaking of life safety issues. The organization then is eager to implement new standards, regulations or technical specification requirements that affect ALL future contracts or projects, seemingly without regard to the life cycle cost impact or cost/benefit ratio. There are often other ways to avoid the problem identified in the lesson learned. Although these are not usually the "regulations" targeted by the E.O, it demonstrates an example of the decision making mentality that can manifest itself in an Organization.
  10. The Final Rule updating the SBA's CFR's with respect to Limits on Subcontracting may address your question. The SBA initially proposed to require prime contractor and first tier subcontractor reporting of compliance efforts. After reviewing the public comments, the SBA concluded that this would have been too burdensome on small businesses. It was deleted in the Final Rule. The detailed invoicing requirements for progress payments in construction contracts was codified in the 1988 Amendments to the Prompt Payment Act and the FAR. The contractor must identify what amount of each billing is attributable to actual or prospective payments to subcontractors, identify those subcontractors by amount, state the previous payments to subcontractor and the amounts, if any that have been retained and the amount of the subcontract. We got some complaints from primes when that went into effect in 1990-1991 but not so much about the administrative impact. The primes complained about the impact on project financing. The purpose of the PPA invoice reporting requirements is to help subs get paid on time from government progress payments and to prohibit primes from personally holding retainage from progress payments to their subs. It just happens that the information is also useful for monitoring compliance with the limitations on subcontracting. It will be more useful when the L.O.S. clause is updated to be consistent with 2013 NDAA and the SBA's 13 CFR's. And the information that all primes (not just construction contract primes) have to post in the System for Award Management per clause 52.204-10** should also be useful for service contracts after the L.O.S. clause is updated. But the reporting wasn't specifically required for the purpose of monitoring compliance with the limitations on subcontracting. Construction contracts already require that the contractor notify the government of all subcontract awards for acknowledgment of the contract's Labor requirements. . **Per contract clause 52.204-10, prime contractors are required to report first tier subcontract awards of $30k and up, including name, the amount and the purpose of the subcontract. This doesn't include subcontracts for transportation and some other costs. Kumbya!
  11. Per the 2013 NDAA, the Final Rule updating the SBA's CFR's with respect to Limits on Subcontracting was published in the Federal Register on May 31, 2016 at : It addresses your question.
  12. I re-read the FR Notice of Final Rule implementing the 2013 NDAA in SBA's 13 CFR's. The Report stated that, per contract clause 52.204-10, prime contractors are (even now) required to report first tier subcontract awards of $30k and up, including who, what for and the amount of the subcontract. This doesn't include subcontracts for transportation and some other costs. If the LOS clause ever gets updated, the measures of limitation of subcontracting will change from "cost of labor" basis to amounts subcontracted (less materials) to firms other than similarly situated SB firms. The emphasis (to the limited extent of possible monitoring) is intended shift to what the prime and similarly situated subs will actually perform themselves or further sub to similarly situated 2nd tier subs. There is no reporting requirement below first tier. This should provide "some" resource assistance to the government in monitoring compliance for service contracts. And the LOS would be applicable to the predominant purpose of the work contracted for in hybrid/combined scope contracts, e.g., services/supply. Its not an air-tight monitoring mechanism, of course. I haven't read the entire revised CFR on this IPhone at my camp. However, I do remember reading in the old 13 CFR that, for purposes of negotiating sole source prime contracts, if the amount of subcontracted materials isn't identified in the sub's proposal, it was counted as subcontracted labor for LOS purposes. Carl - I hope that I didn't give you the impression that I don't care about the LOS. There is also a "Performance of Work by the Contractor" clause for unrestricted construction contracts that pre-dated the later LOS clause for SB preference type contracts and orders. I was/still occasionally am a contract negotiator, contract administrator and was the lead for conducting all of our District's source selections for a period of years. I was extremely concerned about the various ways that primes could be awarded or attempted to be awarded unrestricted or special preference program contracts, either for themselves or as a "front" or "broker" for another firm, then subcontracted or passed-through the work to other firms. During my first assignment in the Air Force as a civil engineer at base level in the early 70's, I wondered why the second low bidder on many of our minor construction for building additions and maintenance and repair contracts ended up performing the work and why I never met or even saw the prime. I didn't know to ask but suspected that something was fishy. Then, later as I negotiated contracts and conducted source selections, I learned many of the tricks that firms will attempt to use to broker or front for others over the years. I even had one firm that was one of the "mafia-type" local cartel member in one geographical area call me by mistake one day to discuss participating as a sub on a project. We had taken the project out of an 8(a) or HubZone sole source program because we couldn't agree on a reasonable price. It was a civil works, local sponsor cost shared bridge replacement and that sub was behind the "front" prospective prime. We had just advertised for full and open competition when he called. The conversation went something like "Hey, do you remember that bridge project that we were working together on? It's on the street now and I was wondering if you're still interested in working for us." Imagine his surprise when I told him that I was with the Corps, not a sub! Rather embarrassed sounding, he quickly ended the conversation. OK, so I cared deeply and still do. But it doesn't seem that many others do. Perhaps because they haven't been exposed to or in the dark about how much of that goes on... i developed means and methods to dissuade such tactics and to help determine compliance. My staff and I were able to reject and get SBA concurrence on numerous offered primes then get them replaced. We were able to get successfully removed or otherwise rejected those teams in source selections that were brokers. We prevailed in the one Agency protest on an LPTA set-aside that we faced. Carl, as contracting policy analyst, don't give up. Find ways to enforce the laws and CFR's. Good luck.
  13. "Easy"????? No such "claim" made by me here. Old and irrelevant experience? Ok, but so is your even older experience. As far as either the Air Force or the DOE are concerned, I was in the Air Force in construction and engineering and in contract admin. I was involved with the AF as their construction agent (USACE) at numerous Bases for almost 20 years and am somewhat familiar with their current organization and how they administer construction contracts. DOE? I am familiar with some of their big construction projects and how they (recently) administer contracts. I also consulted on a couple of their projects and have USACE friends who are or were loaned to DOE. I don't doubt that either Organization would find it difficult to determine LOS compliance on FFP contracts. We both made the point that there is little or no guidance for enforcement and I indicated that , for the most part, few KO's, ACO's or COR's care -as long as the work gets done. Over and out.
  14. My staff and/or I negotiated the sole source contracts so we knew what the contractor said they would do to comply. I was very familiar with the clause and it's interpretation of cost of personnel and no materials, etc. I also coordinated with the SBA Regional Office to develop forms for set-aside RFP' source selections to determine what the proposers intended to self perform. Materials were excepted because primes were "buying" (paying the bills for) materials for subs and "borrowing" construction equipment to meet the requirements of 52.219-14. My discussion above of the SBAs intended shift from focus on cost of personnel to what work is subcontracted refers to the FR Notice of Final Rule for updating their FR. I don't think the FAR clauses have been updated consistent with the revised SBA Regs. I mentioned the shift in focus because it , as well as why reporting is not required, possible enforcement, etc. were explained in detail in the FR Notice. I don't know if anyone here read it or not. It's on my home computer. 'm not at home. Regarding the length of time to determine the cost of performance , these are small business set-asides and relatively small sole source construction contracts, which were usually closed out within a few months of completion. You have the right to disagree with me, that's fine. My original post began with the words "That's not necessarily so..." in response to what I read as "the government can't determine whether the contractor is complying with LOS ".