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joel hoffman

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    Sounds like a good job to assign to the (current) GAO to figure out, huh? 🤓🤓🤓

    Check this GAO Report out (see page 6) for a description of the prohibition on buying office furniture for Presidential appointees exceeding $5,000, as it existed between 1986 and 1992 by way of Annual Appropriations Acts. https://www.gao.gov/assets/220/216417.pdf
  3. ???? That isn't what the clause says or requires. I don't know what is usual for you, Boof, but it wasn't "usual" for me to "give time but not money" for impacts due to a differing site condition..
  4. For references regarding my above post, please contact your friendly contract law attorney or read Administration of Government Contracts, Fifth Edition, By John Cibinic, Jr., James F. Nagle , Ralph C. Nash, Jr. (or any previous edition of that book). Chapters 5 and 6 should cover it in detail. There are many other textbooks that also cover it, as well as Boards of Contract Appeals Decisions.
  5. The Differing Site Conditions Clause (52.236-2) states, in part (emphasis added) : The KO has an obligation to make an equitable adjustment to the contract terms and conditions. If the KO recognizes that the DSC has affected the contractor’s time to perform the work, then the KO must decide whether or not to issue a time extension but must recognize that the contractor is entitled to additional time to complete the work. The KO should determine whether the delay is fully or partially concurrent with other government and/or contractor delays. If concurrent with contractor delays, then it (probably) becomes excusable but non-compensable. If concurrent with other government delays, then it will be excusable and compensable. If non-concurrent with any other delays, then it will be excusable and compensable. The KO needs to determine whether or not circumstances will allow a slippage of the completion date for the work that has been delayed. If yes, then the KO should extend the completion date of that work and/or of the project completion. If, for some reason, circumstances don’t allow a slippage of the completion date, the KO can deny a time extension and require that the work be completed within the current contract period. However, this will likely create an “acceleration” of the project schedule to complete the impacted work without the time that is due the contractor. If such an acceleration causes the contractor to have to expend additional cost, such as overtime, hiring additional resources, additional shifts, expediting delivery of materials, etc., then the contractor may claim or request an equitable adjustment for those additional costs and any other unavoidable impacts to either the changed or unchanged work affected by the acceleration. The short answer is that obligation of the government is to leave the contractor in the same position that it was when the differing site condition was discovered. You mentioned a price adjustment for the “changed work”. The contractor may also be entitled to an equitable adjustment for any increased or decreased cost of the unchanged work impacted by the DSC. Then, of course, also due an equitable adjustment for additional costs for a compensable time extension or acceleration costs due to a denial of an excusable time extension.
  6. PBP Milestone - Mulitiple Payments

    I’m not an expert on this. However, a plain reading of both clauses would appear to me to support additional payment requests not to exceed incurred costs up to the negotiated value of the milestone or activity and no more frequently than monthly.
  7. PBP Milestone - Mulitiple Payments

    Is this a fixed price contract that provides for full payment for an item or items upon full delivery and acceptance but provides for performance-based financing payment(s) upon completion of a milestone event(s)? Is FAR Clause 52.232-32 Performance-Based Payments also in this contract or order?
  8. PBP Milestone - Mulitiple Payments

    252.232-7012 “ ...(b)(i) At no time shall cumulative performance-based payments exceed cumulative contract cost incurred under this contract.” “232.1001 Policy. (a) As with all contract financing, the purpose of performance-based payments is to assist the contractor in the payment of costs incurred during the performance of the contract. Therefore, performance-based payments should never exceed total cost incurred at any point during the contract. See PGI 232.1001(a) (DFARS/PGI view) for additional information on use of performance-based payments.” Are you asking if the contractor can obtain additional payments as the costs catch up?
  9. Proposing Wage Rates higher than Wage Determination

    Agree. “FAR” appears to have conflicting goals. One is to allow or encourage proposers to proposal escalation above anticipated low wage decision updates (based upon observed history) , in order to retain or somehow treat personnel fairly.. “FAR’s” other goal or approach is to use LPTA for the selection criteria due to the routine nature of the work. An LPTA approach doesn’t allow the government to pay any more for performance or qualifications than that which would meet the solicitation’s minimum requirements, in the selection of the successful offeror. If the Gov’t wanted to require or encourage annual pay raises, it would have to define the minimum requirements that would be both measurable and directly comparable between offerors/proposers.
  10. Proposing Wage Rates higher than Wage Determination

    From the jist of the original post, I gleaned that FAR is concerned that the Wage Decision updates don’t provide for much, if any increase in compensation. Yet the organization wants to use Low Price Technically Acceptable basis of award due to the routine nature of the work. Such an approach would not incentivize any firm to exceed the “floor” or minimum for the Base year or any outyear schedule,
  11. Real Contracting Pros

    I read that comment to an article in Defense News, too. It concerns the fact that airplane manufactures retain the data rights to certain airplane components and systems. The author wondered why the Air Force couldn’t contract or compete production contracts with several manufacturers to build or even assemble the same plane, when the Air Force has supposedly paid 100 percent of development costs for the aircraft. I am certain that that issue is way higher than the paygrade of any contracting official.
  12. Real Contracting Pros

    Speaking of airplanes, where is Boeing’s new KC-46 Tanker? Experiencing more delays, they still haven’t delivered the first acceptable plane. https://www.defensenews.com/air/2018/03/07/another-kc-46-delivery-slip-puts-pressure-on-boeing-to-meet-contract-obligations/ In the meantime, the “new”Airbus assembly plant in Mobile, AL (completed in Sep 2015) has announced that they plan to increased production of the A-320/321 series (first plane delivered in 2016) from 4 planes to 6 planes per month. Airbus recently announced that they will build a second plant in Mobile under a limited partnership agreement with Bombardier to assemble their C-Series airliners. https://www.google.com/amp/s/articles.al.com/news/index.ssf/2017/10/airbus-bombardier_deal_mobile.amp I’m sorry for Witchita, KS after Boeing closed its Witchita Plant in 2014-2015, shortly after winning the Air Force Tanker competition with the political help of the Kansas Congressional delegation. Boeing Witchita was supposedly going to be part of the KC-46 production plan. Hopefully, the Air Force will get their FIRST new Tanker late this year but it’s looking like it will be Spring of 2019. Thats a period longer than the US combat involvement than World War 2... The loss of the AF Tanker contract to Boeing ended up being a great blessing for Mobile and Airbus, who was able to establish an aircraft production presence in the US, despite the heavy opposition from a certain manufacturer and its political supporters. EDIT: I brought this up here because the AF Tanker competition has a tortuous history, where some high level Government and industry acquisition officials lost their jobs and worse over attempts to lease tankers. The saga then continued through an extended competition, protest and reprocurement process. The DoD told the public and Congress that the final competition would involve an LPTA selection. What they didn’t explain - or if they did, what the public didn’t understand was that the initial awarded contract for the first four planes. was a fixed-price incentive contract, not a FFP contract. Within a few months after award, the awardee announced that there would be massive cost overruns beyond the target and price ceilings, some of which the taxpayers will end up paying. LPTA...right...
  13. Real Contracting Pros

    Further to what Vern said, aerospace Defense companies are masters at spewing political “talk” to further their interests. The Lockheed opinion appears to be a typical negotiation tactic in my opinion. H2H, I think that you once worked for a certain huge Defense contractor, so you likely know how that works. This is not to impune you in any way- just reminding you how the “Military Industrial Complex” system, both inside and outside the Government, works. I have the utmost respect for YOU. I had to deal with several of the “big ones” for the last ten years of my full-time government employee acquisition duty, including “a certain one”.
  14. Price Proposals for A-E IDIQ Contracts

    My impression here is that the instant process apparently would have the government evaluating a preliminary proposal and “negotiating, as necessary”, as though they were purchasing a commodity. Aside from that, the industry has made it abundantly clear to our agency and in various professional associations (e.g., DBIA and AIA, SAME) that A-E firms don’t have deep pockets for routinely preparing detailed design price proposals unless they are reasonably assured of being hired to perform a design for a client. Most (small business) A-E firms dont have the same B&P or Business Development resources that construction companies have for chasing work. The instant process involves preparing a price proposal for every qualifications based task order selection competition. Yet, apparently the firms here have agreed to the task order competition process. Perhaps they are padding their proposals enough to recoup some of their costs on the task orders they don’t win. Perhaps the ID/IQ’s are used for small projects with uncomplicated designs. We don’t know. Is it “prohibited’? Perhaps not specifically. Is it a sound practice for contracting for professional design services? Not, in my opinion, for anything other than small, non-complex designs. That’s from my perspective of having been the government client and having been a professional engineer in a consulting firm. Can it be wasteful? Possibly. Can it lead to risks and misunderstandings between the parties after award? Probably.
  15. "Legitimate Need"

    It appears to me to be a little strange that someone in the “program office” would not know why the acquisition is being set up the way it is. I would think that the Acquisition office works with the program office in acquisition planning. It Would also seem to me that the justification and approval for the exclusion from competition would be self-explanatory.
  16. "Legitimate Need"

    Thank you, Matthew. That answers my basic question.
  17. "Legitimate Need"

    So, will this solicitation exclude the vendor that has been historically awarded sole source contracts from the competition? Are you planning to sole source with another firm or sole source multiple contracts with other firms?
  18. Has strategic sourcing gone too far?

    Hmmm, reminds me of the time that our field office needed a 90 HP outboard motor and, based upon mandatory use of GSA contract and lowest price, The contracting office had to accept a Chrysler outboard. It ran approximately two weeks before the lower end failed. We sent it to a shop under warranty. Weeks later, it came back and lasted one more week. We couldnt figure out how our Operations Division could buy Evinrudes and Johnsons and we got stuck with a Chrysler. Ops explained some special requirements language that allowed them to avoid Chrysler. An employee brought his own boat and motor to work while we waited for a reprocurement action. Before joining the Civil Service, I lived in Hartford, Wisconsin, two blocks from the Chrysler Outboard factory. My neighbor was a carburetion engineer there. He got fed up with the poor quality of their products (their “engineering design” was largely based upon buying other brands, stripping them down and copying or adapting the designs). He told me to NEVER buy a Chrysler outboard - that their lower ends were notoriously prone to failure. So much for my first taste of mandatory Federal agency sourcing and buying on the basis of lowest price. Then there was the GSA automobile fleet of the late 70’s early 80’s...ARRGH! Lowest priced technically (un)acceptable clunkers.
  19. "Legitimate Need"

    What is the purpose of the Justification and Approval? For other than full and open competition
  20. Price Proposals for A-E IDIQ Contracts

    You normally ask for a price proposal after conducting discussions with the selected firm to gain a mutual understanding of the design approach and scope, sometimes conceptual approach. The government should identify the construction cost information and the parties discuss fee limitations and what design work is subject to the limits, etc. also what other work will be required, if any, such as soil and foundation studies, surveys, topos, etc. We aren’t talking about a proposal for labor and technology unit rates here. We are talking about negotiating a FFP task order to design a specific project. The approach used here is apparently an attempt to save the step of asking for a proposal after tying down the scope and methodologies, etc. so that the A-E can prepare a detailed, meaningful proposal. The problem to me is that it appears that they are skipping the critical step of mutually agreeing on the details of the specific plan for design approach, project scope , etc. by asking for a FFP proposal during the qualifications based selection process. Its one thing to contract by looking for contracting instructions. “What does the FAR say literally?” A clerk can do that. To properly negotiate a design contract requires that both parties understand what and how the design is going to be performed and what has to be done to produce it. If I were to guess, from the information given, here the government prepares an independent estimate, the firms prepare a proposal based upon the limited information known from the RFTOP, the government compares its estimate to the selected firms proposal, then either accepts it or negotiates if it is too high (or maybe too low). Successfully negotiating A-E and construction contracts require mutual understanding of the scope of work, not only of the amounts, labor rates and types of efforts, but of the specific scope of work to be designed and the design approaches, etc. A government estimate is just an estimate and an early proposal may simply be similar to a rough order of magnitude estimate, padded for unknowns. Those are my opinions. EDIT: note that the base ID/IQ might or might not include established unit prices for various labor categories and technology, OH, etc.
  21. Price Proposals for A-E IDIQ Contracts

    Carl, the government is supposed to identify and rank at least three firms that are initially determined to be the most qualified for the task order. The government conducts technical discussions with those firms as described in. FAR 36.6. Then, beginning with the top ranked firm, seek to negotiate a fair and reasonable price and award the order to the firm. If the parties are unable to negotiate a fair and reasonable price, you move on to the next most highly qualified firm. If that doesnt work out (a sign that the government’s pricing or basis of pricing might not be realistic), move on to the third. The order should be priced when awarded.
  22. I’m with you, h2h.
  23. Unfortunately, I’ve witnessed a couple of situations where the Air Force OSI and or Army CID got involved in what were fairly obvious defective pricing situations and turned them into criminal actions, only to later lose them due to inability to prove intent. In the meantime we couldn’t proceed with any defective subcontract pricing actions. After the investigative agencies totally screwed up the criminal cases, our KO’s got cold feet and wouldn’t pursue the defective pricing issues. I’m sure that both the primes and their subcontractors incurred legal costs in defending themselves. In addition, in both cases, Feds (?) entered their offices and seized files related to the contracts and subcontracts. Likely disrupted their contract performance. So, even if defective pricing technically isn’t a crime, that doesn’t guarantee that overzealous Federal criminal investigators can’t make life difficult for the prime or its subs. Of course, when it isn’t your one million recoverable dollars, you don’t have to worry much about it. One of the purposes of the Truth in Negotiatiins Act was to provide an administrative process to be able recover costs without having to prove criminal intent.
  24. Price Proposals for A-E IDIQ Contracts

    Rookie, what are the range of magnitudes for the task orders and what types of project designs are involved? When do you establish the project cost limitation and fee limitations, etc.? Your original question was "Is this task order process non-compliant with the Brooks Act?" You didn't limit your question to only requesting price proposals before determining which is the most highly qualified firm.