joel hoffman

Yes I saw that in the proposed rules.

I’m glad to see that the DoD puts some limitations on amounts that similarly situated subs may subcontract, at least at the first tier level.

I’ll answer for Don. The Class Deviation only applies to DoD, not to all federal contracts. https://www.acq.osd.mil/dpap/policy/policyvault/USA003103-18-DPC.pdf I can’t access the DoD FARSITE from my non-gov computer anymore. That site has traditionally updated the FAR to annotate deviations to FAR that only apply to DoD. It’s probably highlighted in blue type, also - correct?

Lotus, Why not try to answer this yourself. Have you been on a source selection evaluation team? If so, did you have 100% knowledge of everything you were reviewing and evaluating? How many hours did it take to read and evaluate each and every proposal?

Hard bids with public bid opening strongly encourages sharpening the pencil. And once bids are opened, everyone knows everyone else’s price.

Or construction... Agreed.

A debatable theory, which also is Predicated on the Proposition that “competition”, by definition in a regulation, will Probably assure best value technical and Pricing with initial Proposals. P. Poor Prior Planning, not Providing Plenty of time Period to Prepare Proposals in resPonse to a rushed rfP, will Provide Puffed up Prices and Probably less than Premier Performance.

Not so. I once worked for a consulting engineer firm whose standard work week was 45 hours (9 hours per day.). Unfortunately, I wasn’t told that little fact until the first day of work - after we sold our house in one town and moved 112 miles to the new town.

I think I knew Company 2, H. Unfortunately, it wasn’t amusing...

I agree. Sorry, I overlooked the Beginner’s category and was releasing some frustration with widespread practice. Its not local to my organization. The tone and flavor of some posts and threads in the WIFCON Forum over the years also reveals some of the problems that I referred to.

Why, specifically, does “not requiring discussions make[] sense”? Are you saying “not requiring” or “not conducting” discussions? I don’t have a huge problem with leaving the possibility open to award on initial offers. My problem is with avoidance of discussions and assuming that, because there is competition, youre getting good proposals, good pricing, clear mutual understandings, etc.

Deleted by author. Re-inserted by Author after reading some of the comments hereinafter There are several reasons from my observations why government personnel are averse to conducting discussions with Offeror. Some prefer to cut corners to save time, preparation efforts, and simply award a contract, if the money is available. It may be that the schedule has slipped, it may be that the KO or whoever is conducting the discussions doesn’t know what to discuss. This is particularly true where the primary problem is high prices. KO’s and some PM’s on construction contracts are often not subject matter experts. Those personnel don’t know what or how to find the root cause of high prices, or price anomalies or possible disconnects in understanding requirements or bad specs, dumb specs or specs that cause subs and primes to put risk and contingencies in their prices, etc. I’ve seen PM’s just go back for more money to award than figure out how to bargain or mutually fix problems. KO’s have told me that their District policy is that if a proposal meets the minimum requirements, they aren’t allowed to discuss objectionable features, weak aspects of proposals, can’t try to bargain down high prices, bargain for better performance, etc. Some of that thinking goes back to the pre-1996 FAR 15 re-write. Many of the old-timers didn’t “get it” and, being the seniors or in charge, passed the old ways down to newcomers of defensive methods to avoid saying much in fear of a protest. The old FAR 15 did not encourage bargaining. Instead it focused on avoiding “technical leveling” and other more proactive discussion techniques. I have seen much of that. Compound all that with a generation that tends to avoid oral communications (face to face, telephonic) in favor of computer generated text, emails, etc. A Korean co-worker once exclaimed to me “You Americans are so gullible. You are willing to accept anything at face value and pay proposed prices without negotiating. We Koreans don’t even buy a loaf of bread without negotiating! “ Contractors have told me that it is stupid not to conduct discussions because they seldom get the best pricing initially, due to time constraints, sub’s that have questions or need clarifications, etc., etc., etc. As a reminder, Shay Assad has pushed policy that conducting discussions should be the default approach. Guess what - he was on the contractor side of the house and knows. uggh!

Is GSA eBuy Schedule 56 buying “construction” as a Commercial Item for Supplies without mandatory construction clauses or any design related requirements? In a recent appeal of two ASBCA cases to Federal Court of Appeals for the Federal Circuit, the appellate Court concluded that two Army task orders using GSA Schedule 56 for Pre-engineered/prefabricated buildings were construction contracts and that requirements for performance and payment bonds were incorporated by operation of law. The Army used Schedule 56 for two contracts to procure and install two (pre-fabricated? Pre-engineered?) metal buildings from K-Con, who provides pre-engineered and pre-fabricated/modular buildings. Two task orders were issued using SF 1449 Solicitation/Contract/Order for Commercial Items without including any requirement for bonding. The Army required the contractor to provide bonds before issuing an NTP, which delayed start of the jobs for two years, until K-Con provided the bonds. K-Con submitted claims for delays and increased cost, which were denied and appealed to the ASBCA, which ruled for the Army. K-Con then appealed to the Court of Appeals for the Federal District. The contracts (task orders) did include Davis -Bacon Act requirements for applicable parts of the work. The Decision didn’t elaborate on whether the buildings were pre-fabricated in a factory or pre-engineered/site assembled from pre-fabricated materials and parts. The contractor argued that the contracts were contracts for commercial items, not construction, that the (formerly referred to as ) Miller Act bonding requirements weren’t applicable and alternatively, the contracts contained no requirements or clauses requiring bonds. The Case is found here: https://cases.justia.com/federal/appellate-courts/cafc/17-2254/17-2254-2018-11-05.pdf?ts=1541435554 I haven’t read the ASBCA Decisions yet. However, what the Appellate Court decision didn’t say raises several questions for me. How is GSA contracting for pre-engineered/prefabricated buildings and building materials? Do the schedules address or why don’t the schedules address A/E services and construction aspects for orders that include more than buying a delivered pre-fab building or building materials. Is a commercial item task order appropriate when the project includes or is for designed aspects and construction? Do GSA and agencies using the schedules know the difference between supplies and construction (or A/E services for that matter)? Since pre-engineered metal buildings usually are shipped as parts, which require assembly on-site, it would be very unlikely that the government would simply purchase them for delivery without provision for on-site erection (construction) and interior construction and the other building systems (construction). The military might buy a building that way for erection and construction by its military engineer teams. Prefab buildings can be bought for delivery to the site but if any related on-site construction is to be provided by the seller, the task order would have to cover those construction aspects. I found two websites that provide some interesting perspectives one is a GSA presentation at a construction conference. The other is the K-Con website for its GSA Schedule 56 Contract, which includes the GSA SIN numbers and descriptions. The SIN description appear to assume that these are not contracts involving A/E or construction (with some exceptions), even when design and building assembly, installation of materials and systems, and site work is included in the order. When construction is specifically included, the SIN acknowledges Davis-Bacon and other unspecified construction requirements. I’m not familiar with the Schedule contracts, so didn’t search for the entire contract format to see how those are addressed. K-Con advertises design/build as part of its services. GSA presentation: http://www.modular.org/documents/document_event/07gov_gsa2.pdf K-Con (this has been updated in 2018, since the contracts in question but the contract SIN descriptions may be the same) https://kconinc.com/wp-content/uploads/2018/03/KCON-GSA-Brochure.pdf When I was a consulting engineer many years ago, even the pre-engineered metal building manufacturers used registered architects and licensed professional engineers to supervise or perform designs and to stamp designs for their buildings.

https://www.doi.gov/ethics/restrictions-on-post-government-employment https://www.oge.gov/Web/oge.nsf/Resources/After+Leaving+Government http://ogc.osd.mil/defense_ethics/resource_library/pgser_nonsenior.pdf https://www.google.com/amp/s/www.fedweek.com/issue-briefs/guidance-issued-post-employment-restrictions/amp/ From what you said, you want to somehow advise industry, including certain firms that are currently subcontractors on projects that you were involved with. The restrictions there are primarily on representing entities on matters which you were personally involved with or supervised - for instance, generally advising a sub on contracts that you were personally involved with or directly supervised prior to award or after award. The restrictions would also apply to seeking employment (I think that would include seeking them as a future client before you leave government service). You might not be restricted from advising a firm on other matters or contracts that you weren’t personally involved with. Of course, you will obtain written advice from YOUR agency ethics advisor. Be sure to have them address your specific intentions and circumstances. Good luck on your future endeavors. How senior government employees land jobs with firms on their proposal teams for projects that they were involved with before leaving govt service baffles me. A friend of mine did just that. It was part of a protest of award of a huge contract a few years ago for infrastructure improvements for flood damage protection infrastructure. He was on the initially selected JV’s team and it was alleged conflict of interest and insider knowledge. The GAO pretty much took the government’s word at face value when the organization said that he wasn’t personally involved with that project for a period of a year before the source selection...........uh huh....... Sincerely, “A Monkey’s Uncle” EDIT: ahhhhh, I forgot an important detail that probably has something to do with the ultimate opinion by GAO that there was no conflict of interest. He was a GS-15... No personal offense but your chances are probably pretty good.

Good luck to you. On my last major defense acquisition program, it seems like there was a revolving door from the army and DOD program offices where GS 14 and 15’s, program level managers, program site managers and the like - and even SES level agency chiefs went to work for the Major Defense Contractors on the same program. Heck, even an Army Colonel who was our Program Director went to work for one of the successful Systems Contractors on their proposal team for those systems contracts. All of these were supposedly cleared by the Ethics attorneys in the DoD organizations, including our organization. Seems like a far cry from what we were constantly trained in ethics classes, as far back as my college days at the Air Force Academy, to avoid. Based upon what I witnessed on that Program, Id be surprised if you were told “no”.

Is DCMA awarding $1 contracts? Do they have warranted KO’s with a $1 authority limit? And one of my earlier comments concerned the qualifications of someone who only is trusted to obligate the government for $1. The FAR as well as GAO and Court Decisions have numerous requirements that the PCO making the source selection exercise their judgement, independently of the recommendations of others involved in the selection.

Then don’t award $100 million dollar contracts. Anyway, that is a side issue. The example contract here isn’t legally valid. It doesn’t even pass the common sense test in my opinion.

In this scenario, there is no binding contract. The nominal amount of $1 “minimum obligation” **is not legally sufficient consideration*** to form a binding contract for up to $100 million of goods or services. It doesn’t represent the minimum amount that the agency could order. [**$1 is 1/100,000,000 of the maximum contract amount and there is little probability of any order being made at the amount. Thus it is a meaningless obligation. It doesn’t matter whether the amount is “only for illustrative purposes”. That is the amount stated in the original question. ] [***As GAO explained in the below Decision, “...to provide adequate consideration for a binding IDIQ contract, an agency must establish a guaranteed minimum that is more than a nominal amount and reflects the amount the agency is fairly certain to order.”] See B-318046, Library of Congress—Obligation of Guaranteed Minimums for Indefinite-Delivery, Indefinite-Quantity Contracts under the FEDLINK Program, July 7, 2009 “Matter of: Library of Congress—Obligation of Guaranteed Minimums for Indefinite-Delivery, Indefinite-Quantity Contracts under the FEDLINK Program File: B-318046 Date: July 7, 2009 DIGEST The Library of Congress uses indefinite-delivery, indefinite-quantity (IDIQ) contracts, against which agencies place orders for library and information products and services, in support of its Federal Library and Information Network (FEDLINK). FEDLINK is a voluntary program, and the Library states that it cannot accurately anticipate use of an IDIQ contract. The Library proposes using a standard amount of $500 as the guaranteed minimum for these contracts regardless of the maximum ordering limitations or total contract value, which amount would be obligated at the time it awards the IDIQ contract. To provide adequate consideration for a binding IDIQ contract, an agency must establish a guaranteed minimum that is more than a nominal amount and reflects the amount the agency is fairly certain to order.” Read the Decision at : https://www.gao.gov/decisions/appro/318046.htm The conclusion in this thread ought to be fairly obvious, based upon a reading of the above cited GAO Decision. There is no binding contract here. “No” is the answer to the original question. It isn’t a binding contract. I answered the question last week, on 21 November. The other reasons cited here are likely valid, too. But consideration, being one of the necesssary elements of a valid contract, is missing here. We often read in protest decisions where the jurisdiction didn’t need to decide other issues, where one issue provides the basis for the decision. We know that at least a few attorney Forum members read the WIFCON Forum. I am not an attorney. I don’t have access to Westlaw or other online resources and wasn’t trained in legal research. I don’t know if the above cited decision is current. I am disappointed that licensed(?) government or non-government attornies don’t offer many opinions or input on threads like this one. Im pretty sure that the elements of a legal contract are part of one of the early classes required for law degrees. I remember this being included the the Business Law class that I took in night school at then Mississippi University for Women in circa 1982.

The clause states at paragraph (f) that “The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after receiving a new wage determination unless this notification period is extended in writing by the Contracting Officer. The Contractor shall promptly notify the Contracting Officer of any decrease under this clause, but nothing in the clause shall preclude the Government from asserting a claim within the period permitted by law.” You have no justification to deny it simply because it is a future cost impact. In addition to what I said in my earlier post concerning justification for the proposed adjustment, paragrapgh (f) also requires the contractor to include “any relevant supporting data, including payroll records, that the Contracting Officer may reasonably require.”

An equitable adjustment includes an allowance for profit. A cost adjustment does not include an allowance for profit. The pertinent clause at 52.222-43 (g) specifically states that “any adjustment will be limited to increases or decreases in wages and fringe benefits as described in paragraph (d) of this clause, and the accompanying increases or decreases in social security and unemployment taxes and workers' compensation insurance, but shall not otherwise include any amount for general and administrative costs, overhead, or profit.” Since it is the Contractor’s responsibility to justify its proposed cost increase, I suggest asking the contractor to provide time sheets or actual numbers of hours for each employee or position included in the calculation. And then have it show you how it developed it’s calculated increase. See paragraph (g) of the clause at 52.222-43: “(g) The Contracting Officer or an authorized representative shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor until the expiration of 3 years after final payment under the contract.” You should be able to validate the proposal or develop your own prenegotiation objective as an alternative. If you don’t understand how they developed the numbers, make them provide all the data necessary to determine it and don’t settle for a generalized narrative.

If they have alternative means, then get the alternative means to award the contract.

It ought to be obvious the a KO with a One dollar warrant is essentially useless. Can’t provide oversight to real KO’s; isn’t trustworthy enough to have a higher warrant; their judgement on whom to award Base IDIQ contracts to would be suspect in my mind; they can’t administer the contracts as a PCO, etc., etc. Please tell me that the government hasn’t stooped to issuing such fake warrants these days . Arrrrrrrrgh!!

I didn’t find an ethical problem but the JTR did say in one place that contractors should provide their own resources to perform the contract and that normally, contractors shouldn’t drive govt vehicles. The real problems, in my opinion, would be liability, as mentioned herein before, and in separation of funding and accounting for the costs involved. In addition, how would one government program reimburse the Air Force’s flying and maintenance costs, GSA or DOD O&M appropriations for ground vehicles, etc. ? it would be a complex, and govt intensive logistics exercise to determine, account for and reimburse various other accounts for the cost of travel in govt conveyances. Contractors, if allowed to fly on govt planes, may well be standby. Who are they going to bump? What happens if the plane doesn’t fly or is delayed (a common event in my Air Force and government employee experience flying “USAF Air”, Space- A. For other than duty in a War Zone, I would expect the govt to say “Buy your own tickets; we don’t want to be responsible for determining costs or for delays, injuries or death to contractor employees”.

DoD has some rules about the subject. Is this a DoD contract?

1. This would be a Cost Reimbursement contract or non-competitively negotiated FFP contract if there will be a contractor purchasing team review (44.303 Extent of Review). If C&P data are required of prime or sub for initial awards of subcontracts, the contract must include those applicable clauses for cost or pricing data. (52.215-10 and 52.215-12). 2. For a FFP contract that was competitively negotiated or an IFB, it’s not the government’s business what price the contractor subs it’s initially awarded contract priced work for , except when a modification is involved. The only C&P clauses clauses in the contract concern pricing of modifications. The government has no recourse for Defective pricing of the initial subcontract price for the contract between the prime and it’s subcontractor, unless the subcontract was issued for a modification that is subject to C&P data. 3. The only C&P Data clauses in the instant contract in this thread are those involving pricing of modifications (52.215-11 and -13). Thus it appears that the contract is FFP (competitively negotiated). Please don’t over complicate this thread.