joel hoffman

I will say that I would send the winner and the other firms in the competitive range their evaluation and rating sheet** with comments as an attachment to the notice of award and offer them a written or oral debriefing if they wished. Brave or foolhardy, I guess. But we had five or less finalists, usually. Edit: (** we removed the actual assigned numerical or adjectival ratings from the evaluation and rating documentation). Forgot that little detail originally. This was mostly for construction and design-build competitions. Caddell Construction once requested a debriefing and asked to see the awardee’s design proposal, which was incorporated at award to the contract, as part of the debriefing. The Caddell corporate proposal team (all of whom I knew) brought their architect and sat him at the end of the table in the conference room. I let them review the drawings as they grilled their designer. They told me that they were disappointed but understood and agreed that the winner beat them... We never had a protest using that method. Lucked out.

I will add that each situation must be evaluated based upon the circumstances, regardless of sovereignty rules. There is no “one answer” that fits all situations. One must determine which Fed, state and local laws and regulations are “applicable” .

Another clause with similar effect for construction contracts: 52.236-7 -- Permits and Responsibilities (Nov 1991) “The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work...” Note that the contract clause wording would have a higher precedence than a conflicting specification or statement of work per the Order of Precedence Clause at 52.217-8 , which is applicable when your contract uses the Uniform Contract Format (UCF).

Yes, All APPLICABLE laws, fed, state and local.

The plot thickens as information dribbles out. Good luck, Newto.

Excellent advice. ji, that is a very plausible guess. I would ask what they meant though in the list of questions, to verify.

Newto, I am going to assume here that you aren’t planning to contest your evaluation rating based upon the point scoring. I’m assuming that you are questioning the reference to procurement integrity. Not sure if there was any explanation or more specific wording in the “denial letter”. Your original post doesn’t clearly describe the timing (“At one point...”) of your communications with the engineering director or whether you are competing for inclusion in an ID/IQ contract or if this is a task order under an ID/IQ. Based upon my limited understanding of the specifics, my advice is to ask the government to explain what they mean by the subject reference to procurement integrity and what definition of a word or term they are referencing in 2.101. Unless there is more explanation in the KO’s letter, you can’t “see [these] specific clauses”. Please note that those subject references are not “clauses” and they are not “specific” . They are titles of subparts and sections. They might not want to elaborate at this point during the on-going competition. If it is a competition for award of a contract, you can ask for a debriefing.

For DoD, it is considered in the weighted guidelines method of estimating a profit factor. See the PGI and DFARS under 15.404-71.

See for example, 52.212-4 (q): “ Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.” The instant example involves violations of federal law, so may not address the original question of compliance with state laws. However, the above commercial contract clause requires the CONTRACTOR to comply with state laws and regulations that would be “applicable to its performance under [the] contract. “ The original question is complex of course. I believe the question concerns whether the federal government could be liable for contractor violations of state law. Off installation work would surely be applicable to compliance with state and local laws. One question there would be - does the federal government also have liability for its contractor violating state laws off site? The contract requires the contractor to comply but is the fed government then contracting for work that is directly in violation of state laws? On site compliance is more complicated because applicability of state laws on-site may depend upon the specifics of the situation. The provided example of polluting a stream or ground water actually involves violations of not only state but Federal law.

In the instant example, I would definitely check with the lawyers. Beyond non-compliance with state law, there would likely be violations of the Clean Water Act and perhaps RCRA and CERCLA for contaminating groundwater and/or waterways. I will also say that federal employees aren’t necessarily exempt from civil or criminal violations of RCRA or CERCLA that occur on Federal Property. Top civilian management employees at Aberdeen Proving Grounds or Edgewood Arsenal were arrested, prosecuted, fined and some served prison sentences back in the late 80’s or early 90’s for improper storage and discharge, leakage, etc. of hazardous chemicals that they claimed they weren’t even aware of. And the Federal Government wasn’t allowed to even pay for their legal expenses. And a contractor would not be immune from violations of those laws.

I agree.

L.C., A possible problem with communicating with one firm at the initial screening stage that didn’t address the specific announcement response requirement is that there may be other firms that also didn’t address something which might have allowed them to advance in the qualifications based competition. Of course, another factor might be the extent of competition and how much separation there is between this firm and the rest of the respondents.

In my opinion, it would be a sham to give or take credit for a small business subcontractor who isn’t a small business subcontractor even before award of the task order, regardless of the rule. Ah, the bureaucracy...

This is an A/E contract , not phase 1 of two phase design-build, correct?

Check out the selection procedures in USACE EP 715-1-7 . https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_715-1-7.pdf?ver=2013-08-22-094139-520 They address similar circumstances.

Agreed. The doors and copiers are government property but are not transferred to the contractors as government furnished property.

Bob and Daisy, I think that this post is under the wrong thread.

Thanks, Rocco

Neil, there are various types of government property furnished to contractors. Often it is materials to be incorporated into a product, facility, equipment, etc. or otherwise consumed by the contractor. Other times it may be something that is turned over for repairs, modifications, re-build, etc. then returned to the government. I’m simply saying that I don’t think that all GFP is removed from the government’s property records and inventory, such as the Oshkosh Snow removal equipment and perhaps a wing to an aircraft being repaired or modified. I don’t think that the location of the contract work matters for purposes of retainage on the DoD’s property records. I’m not familiar with the APSR though.

The trucks weren’t “consumed” during performance of the contract. They were overhauled. Same frames, cabs and other usable parts were retained...

The Air Force Strategic Air Command had hundreds of large Oshkosh snow plows and Snow blowers on heavy trucks. They had contracts with Oshkosh Truck company to do depot level complete overhauls/rebuilds after 10 years or probably more of service. AF would ship them to the factory at Oshkosh, WS and they would come back, refreshed and updated, with new fleet numbering on the cab (the prefix year was updated but truck retained same fleet number). ji, are you saying that the Air Force removed each vehicle from its property records while it was in the Factory for rebuild? I don’t think so. Not a logistician or property specialist but I’m pretty sure that they were always on the USAF property books and part of the Air Force Strategic Air Command’s inventory. The fleet at KI Sawyer AFB had almost 60 Oshkosh trucks in its fleet. Biggest in the AF to my knowledge. They ran 16-24 hours per day on a three shift operation in the winter time (November into May) .

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

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.

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”.

Glad to help. 😃