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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. ji’s approach may be more practical than an award fee where the contract is dirty enough to have other causes for delay. Then, when other impacts arise it could delay the contractually required completion date that you pick, you can effectively accelerate the contractor by paying them mor during settlement of the various modifications e not to be delayed
  2. You can use FFP contract with an early completion award fee incentive (for other than military construction). There is a risk however, that if contractor encounters delays during performance, it will try to show that it would have completed early, thus is owed the award fee anyway.
  3. What clause or wording within a clause are you referring to? I also didn’t understand what you meant about “and at some point after” and the “contractor caused some delay dealing with the defective specs”. Was there a Bilateral modification to adjust the contract, then a later delay? What was the delay about? What delay was “concurrent” with ( at the same time as or on separate schedule paths as to Act concurrently) the some later delay? Two delays that happen at different times on the same path are not “concurrent”.
  4. I haven’t even started to discuss the problems and challenges in using go/no-go factors to “pre-qualify” bidders or proposers. Pre-qualification on a go/no-go basis necessarily involves use of “responsibility factors” . Edited: As stated above, Part 14.5 precludes responsibility type information in step one of a two-step sealed bidding method. We’d have to really know what your overall objectives are for the triad mentioned above. It would probably help us to understand better if you could describe what you DONT want or are trying to avoid by using a pre-qualification step. I’d be glad to discuss off-line with you.
  5. Batman, Batman, using go/no-go criteria in phase one is incongruous with the objective of getting the “best qualified contractors”. Did you mean “best qualified [bidders] [offerors] will compete in phase 2? Edited paragraph: If phase two will be an IFB , there is already a two-step Sealed bidding method in Part 14. See subpart 14.5. I was involved in an Air Force, 2 step sealed bid design-build project in 1971-1972 and the Navy used to use that method for their design-build projects many years ago. Edited: However, In reading through 14.5, it states that step one is not for determination of responsibility - pre-qualification based upon abilities. Looks like it would have to be a Part 15 process. If phase 2 will be an RFP, what non -price factors are you going to evaluate?? If phase 2 will be RFP, what is more important, price or non-price (qualifications?, or ?? considerations?)? The methods chosen depend upon the acquisition objectives. I really don’t understand why one would use a two phase process for a straight construction contract, when you can consider both quality and price in one step trade-off. You don’t necessarily get the “best” contractor in a go/no-go competition and why would the BEST firms compete solely on price? Id be glad to discuss orally off-line with you. EDIT: Even the best firms have their A-teams and B-teams. You won’t get their A-team with a go/no-go gate to qualify for phase 2. This doesn’t look like it makes sense to me. You need to develop objectives for cost, time, and quality, then decide why a two step or two phase process is necessary for a construction contract for a “regular building”. But decide the acquisition process based upon desired objectives and priorities.
  6. Batman, what do you mean by “pre-qualification”? What are the objectives or reason to pre-qualify firms for construction of a “regular building”? Will there be a limited number of firms being qualified? Or is it going to be qualification based upon some go/no-go criteria - such as what??? We’d have to know what the reasons or objectives are to require pre-qualifications. In my opinion, that would not constitute full and open competition. It may be unduly restrictive. Yes, we do use a two phase selection procedure for design-build but that is specifically authorized/required/preferred by law and implementing regulations. Can you please elaborate?
  7. I should have added that SBA must approve the JV Agreement. However, how can the 8(a) be the managing partner for the JV and a subcontractor under a GSA schedule contract for performance?? Answer: It can’t. But ask the SBA.
  8. Actually the term “repricing” is described in various court cases and board decisions, including “Victory Construction Co. vs US.* ( https://casetext.com/case/victory-construction-co-inc-v-united-states ) when they distinguish between the two methods. If you think about it, it has been Court and Board actions that defined or refined various terms or bases of price and time adjustments. “Price realism” is another term where the Decisions have carved out the idea that “price realism” focuses on underpricing, while “Fair and Reasonable” focuses on overpricing. Neither term is clearly defined thusly from a reading of the FAR. Another one is “unabsorbed home office overhead”. The Courts have defined the parameters to establish unabsorbed HOOH. *Victory Construction Co Inc v. United States, 510 F.2d 1379 (Fed. Cir. 1975)
  9. I agree that the JV is not the GSA schedule contractor. And how can the actual 8(a) firm on an 8(a) set aside be in control of anything under the JV agreement related to the GSA schedule if it isn’t the GSA schedule holder? It can’t. It appears that the 8(a) firm is just along for the ride to try to qualify for a set aside. That is specifically addressed in the SBA regulations. But - you should ask the SBA your question...
  10. Retreadfed, I meant repricing of the remaining nine CLINs for current market conditions would be improper, as Vern described. Yes, if there are fixed costs that were originally apportioned to ten CLINs, for instance, the mod could include the unabsorbed fixed costs that were in the deleted CLIN as a separate, new CLIN or it could spread the cost among the nine remaining CLINs. That’s not “repricing” - it only provides for an (equitable) adjustment of those remaining CLINs. There is a technical difference between adjusting the CLIN price to reflect impact costs and “repricing” , which means abandoning the old price and re-pricing it for current conditions. The former would involve adding each CLIN’s proportionate share of unabsorbed fixed cost, for example. The latter means a new bottom up price. Bottom up repricing doesn’t leave the contractor whole - good or bad. Simply adjusting the price for the impact of the change does leave it whole. As an example of the difference, pricing of an adjustment for unit priced overruns outside of the range described in a Variation in Estimated Quantities Clause is supposed to be done only to reflect the difference in unit cost to the contractor to perform the quantity within the range and outside the range (the 1975 “Victory Construction vs US” Claims Court Decision principle). Note that this assumes that no additional quantities of the unit priced items have been added by change. Any new or additional quantities added by changes to the work can be separately unit priced. In the late 1980’s, the Engineer Board of Contract Appeals embraced the concept of re-pricing overruns beyond 115% of the estimated quantities (the 1989 ENgBCA “Bean Dredging” decision method) but ASBCA disagreed, as did the Court of Claims a few years later (1993 Foley Construction Co. vs US) , which set the matter straight, reverting to the Victory Construction Co. interpretation of the VEQ clause. The Eng Board had strayed from the Victory Construction principle in “Bean Dredging”. Indeed, the Corps and Eng Bd had tried to reprice the overrun in the earlier 1975 Victory Construction decision but were reversed by the Claims Court. Thus, we generally** don’t “reprice” overruns based upon actual cost. We would only adjust the unit price to reflect the DIFFERENCE in the contractor’s cost to perform work within and outside the VEQ range, if any. **See a 2018 article at http://www.long-intl.com/articles/Long_Intl_Construction_Claims_for_Variation_in_Quantity.pdf The above article covers VEQ clause adjustments and the recent cases named above. Probably more information than necessary but I tend to use terms that I’m used to using. Sorry.
  11. I am assuming that this is a construction contract (some or all non-commercial services involved in the change). The KO is within her rights to ask for cost breakdown information for non-commercial related costs) because the price adjustment for a Change is based upon the increases and/or decreases in the cost to perform the work as changed. “15.403-3 Requiring data other than certified cost or pricing data. (a)(1) In those acquisitions that do not require certified cost or pricing data, the contracting officer shall— (i) Obtain whatever data are available from Government or other secondary sources and use that data in determining a fair and reasonable price; (ii) Require submission of data other than certified cost or pricing data, as defined in 2.101, from the offeror to the extent necessary to determine a fair and reasonable price (10 U.S.C. 2306a(d)(1) and 41 U.S.C. 3505(a)) if the contracting officer determines that adequate data from sources other than the offeror are not available. This includes requiring data from an offeror to support a cost realism analysis; (iii) Consider whether cost data are necessary to determine a fair and reasonable price when there is not adequate price competition...” In addition, if it is the first mod involving labor, materials, equipment, etc., I found it necessary and helpful to determine what and how various common aspects of pricing changes would be based, such as how indirect costs are treated. Better to get that out of the way or understood up front, rather than re-inventing the wheel each time. As for cost analysis, you misinterpreted the FAR guidance, ignoring subparagraph (4) below: “404-1 Proposal analysis techniques. (a) General. The objective of proposal analysis is to ensure that the final agreed-to price is fair and reasonable. (1) The contracting officer is responsible for evaluating the reasonableness of the offered prices. The analytical techniques and procedures described in this section may be used, singly or in combination with others, to ensure that the final price is fair and reasonable. The complexity and circumstances of each acquisition should determine the level of detail of the analysis required. (2) Price analysis shall be used when certified cost or pricing data are not required (see paragraph (b) of this subsection and 15.404-3). (3) Cost analysis shall be used to evaluate the reasonableness of individual cost elements when certified cost or pricing data are required. Price analysis should be used to verify that the overall price offered is fair and reasonable. (4) Cost analysis may also be used to evaluate data other than certified cost or pricing data to determine cost reasonableness or cost realism when a fair and reasonable price cannot be determined through price analysis alone for commercial or non-commercial items.” Since the equitable adjustment is “cost based” (effect on the contractor’s cost) and the fact that equitable adjustments include an allowance for profit on costs and profit on deductions, asking for the direct and indirect cost basis and the profit basis is reasonable in order to mutually arrive at an overall reasonable “price”. I cant speak for NAVFAC and their internal policies but I negotiated changes for Air Force in the 1970’s and for the Corps of Engineers on contracts for Army, Navy, Air Forces, civil works and for FMS work at home and overseas for over thirty years and typically obtained and evaluated detailed proposals, such as what the Navy is asking for. Realize too, that you won’t have to repeat the effort to familiarize the KO with how indirects are costed/priced for every subsequent mod.
  12. That case doesn't affect the above conclusions. The KO completely restructured the contract option for production, which the ASBCA said was beyond her authority under the Changes clause and was a Cardinal change, outside the scope of the contract. The Board made that clear but since the Contractor accepted by continuing performance, presumably because it wanted the work rather than having re-compete for it, etc., the Board did not address the legality of the action. It was a very complex scenario, an example of what Vern was cautioning against in his 2011 post and reinforces what I was talking about. I started copying relevant points in the Decision but it runs for pages. One can read for themselves. In this case, the Contractor had to re-price the work due to the Cardinal Change to the contract option, which reduced the required quantity from 12 to 5 units.
  13. How about a link please. Tried search for that on iPhone iPad and computer. No luck.
  14. Jamaal, I take it that your solution is to abandon further years of this contract and re-procure for next year. There is no need and no funding for one of the portions of services. Even if there were funds but not the need, it would involve unnecessary extra work, be wasteful of resources and costs to exercise the entire option then delete the work by change or partial termination for convenience. Work it out ahead of time, within the scope of the competition. Sorry your heart hurts.
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