Jump to content

joel hoffman

Members
  • Posts

    7,041
  • Joined

  • Last visited

Everything posted by joel hoffman

  1. And one should realize that non-government customers might not have any or have fewer policy restrictions on travel. The government has an established policy for travel for its employees and for many government contract personnel. The government doesn’t have to simply accept paying for upgraded travel status for contractor employees. This may sound like a broken record. The government can define conditions for travel reimbursement and/or can negotiate terms if a vendor includes upgraded travel as the basis for other direct costs or otherwise for travel.
  2. So, as it turned out the government didn’t agree that business class fare was reasonable. And the job still got accomplished, I assume. Im guessing that the proposal or quote described the basis of travel. Thus - you or somebody else analyzed that COST aspect of the proposal. Was this agreement made during the contract negotiations? Edit - added: Or was it after a contract award? Was this a competitive or was it non-competitive acquisition? “Cost analysis” can extend to evaluating the basis of reimbursable travel costs… Edit: Whether competitive or non-competitive its a negotiable aspect. If the government doesn’t want to pay for upgraded travel it has the right to negotiate it.
  3. @General.Zhukov, Did I miss where you asked how travel costs were treated on the contractor’s other government (DoD?) commercial and non-commercial contracts? Did your market analysis of government contracts show that reimbursable business class travel for similar services was predominant ? If there are examples of the same or similar type of government travel that didn’t allow the additional cost of business class fares, then it would appear that, even if they didn’t like it, they still performed their jobs. Since travel costs and travel policies affecting the eventual contract cost are significant enough for you to inquire about here, I would think that a prudent KO or acquisition professional would evaluate the proposed basis for employee travel especially If it varies from the otherwise predominant government travel policies
  4. Do you mean government travelers too, performing official business? Fat chance. Or government contractors performing business for the government? If it’s a commercial services contract, especially a quote, it should be negotiable. But I forget…that’s too much effort and one might actually have to speak to the vendor.
  5. So, is it reasonable for the taxpayers to pay extra costs for contractor employee “perks”? I flew on several flights that AL Senator Shelby was also on, between Washington DC and Huntsville, AL. Richard Shelby is a very tall man. He flew in a coach, non-exit row, window seat each time.
  6. I think that the OP has probably figured out what “notwithstanding” means. See dictionary definitions for “notwithstanding”. Here is one example: “What does notwithstanding mean in legal terms? despite, in spite of Notwithstanding legal use means creating exceptions to the rules of a contract. It also means despite, in spite of, even if, with regard to, however, in any event, nevertheless, still, and yet. https://www.upcounsel.com › notwi...”” The original question which followed was: It generally means “despite” prescriptions (or “even if” prescribed) elsewhere, if it isn’t “required in” Part 12, then the KO isn’t required to include it. It also means that if it [edit: is or] isn’t “indirectly referenced in” Part 12, then the KO isn’t required to include it. Applicable to the example peer review comments that the OP cited. The cited examples are already included by reference. The practical problem is that, apparently some government personnel don’t seem to be aware of all the Part 12 requirements contained in references and references in the references. Yet all vendors, prospective contractors and contractors are required to know all directly and indirectly referenced Part 12 requirements. And they call this “simplifying” commercial acquisitions,
  7. Yes, on occasion, a key sub would be in the room while involved in negotiation of its non-competitive subcontract. And on at least one occasion, directly with a sub off-site. A few years ago I was assigned, as a rehired annuitant to lead the negotiations on a $42 million REA for a contract to construct a new, large auxiliary spillway and control structure at an existing flood control dam and reservoir. The REA was for time and schedule impacts of numerous mods that had been settled, with those aspects reserved. In addition, the government had directed acceleration due to the criticality of maintaining the schedule. There was a high risk of flooding overtopping the reservoir which would cause major flood damages. My cost engineer and I travelled to a major subcontractor in another state who was the fabricator, supplier and installer of the lift gates, tainter gates and gate machinery, to negotiate their subcontract acceleration and schedule impact issues. Over the course of the meetings, we mutually agreed to revised subcontractor impacts and costs. The prime agreed with that approach. This overall assignment was very complex and took almost 8 months to resolve. In the process, we devised some significant changes in the contractor’s technical approach to minimize impact delays at a significantly lower cost. We settled the REA for about $25 million and the contractor agreed that the project could be completed several months ahead of its proposed impacted/extended scheduled completion date. The contract required completion date was thus revised. In response to your question and your understanding of the privity of contract and management issues, the bottom line is still that the burden of proof is on the the contractor and its subs to establish that their costs are reasonable and necessary (see FAR 31.201, etc.)…
  8. So what? Ask for “data other than cost or pricing data”. See 15.402 and 15.403-3. You can make them justify the reasonableness of their rates and price, including asking for cost information if necessary. We don’t know the nature of their pricing but you mentioned “rates”. What is the makeup of their rates? You said this is cost plus fixed fee??? Are the subcontracts FFP or CPFF?? Rates appear to refer to some type of fixed pricing. Edit-Add: By the way, I used to negotiate some subcontract prices with the subs present at negotiations. On occasion, directly negotiated subcontract pricing and schedule impacts with the sub with the concurrence of the prime, particularly for impact REA’s. And yes, we got price breakdowns.
  9. What happens if any online referenced provisions and/or contract clauses are revised ?
  10. “4.1007 Solicitation alternative line item proposal. Solicitations should be structured to allow offerors to propose alternative line items (see 4.1008 and 52.212-1(e)). For example, when soliciting certain items using units of measure such as kit, set, or lot, the offeror may not be able to group and deliver all items in a single shipment.” Here is the prescription at 12.301(b) for the provision at 52.212-1 for commercial products and services format: 12.301 (b)(1): “The provision at 52.212-1 ,Instructions to Offerors-Commercial Products and Commercial Services. This provision provides a single, streamlined set of instructions to be used when soliciting offers for commercial products or commercial services and is incorporated in the solicitation by reference (see Block 27 a, SF 1449). The contracting officer may tailor these instructions or provide additional instructions tailored to the specific acquisition in accordance with 12.302.” 52.212-1 “…(e) Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions, including alternative line items (provided that the alternative line items are consistent with FAR subpart 4.10), or alternative commercial products or commercial services for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately.” —————————————- If 52.204.22 is essentially covered in the referenced provision at 52.212-1(e), do you think it is necessary for you to reference or add the additional instructions in 52.204-22? ————————————— Comment: If the government is trying to simplify purchasing commercial items and services, I personally think that there is a whole lot more time, effort and B.S. expended by both government employees, prospective vendors, the successful contractor and government contractor administration personnel in searching for all the referenced provisions and clauses to read vs. simply including them all, as one or two attachments (provisions and clauses) or in a single linked attachment. It’s no wonder to me why nobody seems to know what is in the solicitation and in the resulting contract. SHEESH!!!
  11. Yes it is. This clause is incorporated by reference in 52.212-4 (d). I’m curious why your PEER reviewer wouldnt know that.** Advise your PEER reviewer that there is no need to separately add or reference the Disputes clause. ** Oh…yeah…52.212-4 is incorporated in both the solicitation and resulting contract by reference in the SF 1449. See my comment in my next post below. Incorporated by reference in a clause that is incorporated by reference!! For gosh sakes!! SHEESH!
  12. Did the ANC share “the work rules” with you? Can you contact the SBA directly for questions concerning the rules on future JV opportunities? Edit: Oops I overlooked the link formerfed posted above.
  13. You mentioned several times that you “simply ignore” terms and conditions (in quotes or proposals) that conflict with solicitation terms or that are otherwise objectionable. You can’t simply ignore in quotes and proposals terms and conditions that conflict with the solicitation or are otherwise objectionable. If you want to consider the proposal or quote for award, you need to call it to the vendors attention and have them remove the offensive or non-compliant language. There must be a meeting of the minds to form a contract. “FAR 12.213 Other commercial practices. It is a common practice in the commercial marketplace for both the buyer and seller to propose terms and conditions written from their particular perspectives. The terms and conditions prescribed in this part seek to balance the interests of both the buyer and seller. These terms and conditions are generally appropriate for use in a wide range of acquisitions. However, market research may indicate other commercial practices that are appropriate for the acquisition of the particular item. These practices should be considered for incorporation into the solicitation and contract if the contracting officer determines them appropriate in concluding a business arrangement satisfactory to both parties and not otherwise precluded by law or Executive order.” For example: "In reviewing protests challenging the evaluation of proposals, we examine the record to determine whether the agency’s judgment was reasonable and in accord with the RFP evaluation criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90‑1 CPD ¶ 223 at 4. An offeror has the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably when it fails to do so. Recon Optical, Inc., B-310436, B-310436.2, Dec. 27, 2007, 2008 CPD ¶ 10 at 6. Furthermore, in a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Wolverine Services LLC, B‑409906.3, B-409906.5, Oct. 14, 2014, 2014 CPD ¶ 325 at 3-4." See also, for example: https://courses.lumenlearning.com/suny-monroe-law101/chapter/elements-of-a-contract/ ”ACCEPTANCE: Acceptance by the offeree (the person accepting an offer) is the unconditional agreement to all the terms of the offer. There must be what is called a “meeting of the minds” between the parties of the contract. This means both parties to the contract understand what offer is being accepted. The acceptance must be absolute without any deviation, in other words, an acceptance in the “mirror image” of the offer. The acceptance must be communicated to the person making the offer. Silence does not equal acceptance.” With RFQ’s, the government makes an offer to the successful vendor. In the government’s offer to award, you could specifically identify the specific terms or conditions in the quote that you don’t accept. However, you may not know what the price or performance ramifications of objectionable or non-conforming terms of a quote are. Therefore you need to discuss and negotiate the final terms for the quote . It might result in a price reduction. It might result in a material change to the requirement if accepted that may affect other vendors prices. It might result in a price increase that might affect the quoter’s relative ranking among other competitors. If you are a “beginner”, I hope your organization has an attorney who can advise you about the principles of mutual understanding, not ignoring non-conforming terms and conditions in a quote or proposal, “meeting of the minds”, etc.
  14. Well, you can look at it this way then. If you simply call the contractor and ask him to lower his price, versus taking all that extra time to cough up and process another couple hundred dollars and piss off or otherwise under impress your customer, you have more time to goof off and be idle, not doing other work.
  15. Sorry to drone on. I worked with a Korean American fellow contract administrator in Saudi Arabia on mods and claims for a large construction contract with a Korean contractor. I couldn’t understand why the contractor kept proposing higher labor rates for every mod action, long after our auditors found that they were inflated. We would have to adjust the rates and hours for every negotiation. Then our contractor would agree to the lower amounts. Mr. Chong told me “You Americans are gullible and seem to accept everything at face value. We Koreans bargain for everything, even loaves of bread…” 🤪 I still remember that 40 years later. Edit: One last thought. Do you notice that when you are buying a new or used vehicle from a car dealer, the sales person generally always asks you to “make an offer”, then takes it to the sales manager, who either accepts or rejects it? The sticker or window prices are effectively considered to be a quoted price. I haven’t ever been able to get a salesperson to offer me their best or even a lower price first. But the latest and expanding practice is now “no haggle” pricing. I haven’t bought a vehicle under those pricing arrangements yet…
  16. Here, you would actually be negotiating with your government partner. It sounds better here to say the same thing to the vendor.🤠
  17. It occurred during the second semester of my night classes pursuing a second degree, in Business Administration - soon after learning what I mentioned earlier. We moved to Saudi Arabia about four months later and sold the car. Fortunately, new Hondas were almost impossible to find at dealers back in 1983. Demand greatly exceeded supply. I think we sold it for what we paid for it. Edit: I discovered in Saudi Arabia that the European versions of new Hondas and other car and small truck brands cost a whole lot less than in the US. I could have bought a used, classic Rolls Royce for about $10,000 in 1987. But it was too much trouble to arrange shipping and import modifications and tariffs, etc. plus we were relocating to Germany. 🤪 (I could also have bought a slightly used, late model D-9 Caterpillar dozer in Riyadh for about $10,000 - 35,000 Saudi Ryals - too.🤠)
  18. “It depends upon the conditions”. If there are one or more reasonably competitive offers/quotes in the running, it may make sense to negotiate/bargain with them. But, let’s live in fear of a protest and play it “safe”.
  19. I bought my first new Honda Accord back in 1983. I learned afterward when the bank sent me the loan papers and conditions that the first payment was due 60 days later. That meant that I was initially paying an extra month’s interest plus residual interest on that interest for the remaining 36 month period. I went back to the dealer to claim breach of the written sales contract and the advertised loan. The dealer said that was the bank’s terms, not theirs. I replied that the dealer was, in effect, an agent for the bank, so they and the bank were both liable for false advertising. I then went to the bank and told the bank manager the same thing. The bank rewrote the loan agreement to make the first payment 30 days after my purchase.
  20. If you are a beginner, let me suggest that you learn how to negotiate and bargain and then practice it. And learn how to respond to QUOTES. It likely takes more of time, effort and labor cost for you and the other government organizations, offices and personnel to contact the end user to demand $200 more to award a purchase order, then have the end user request the funds, someone process and send the funds to your organization, then your organization processing them - than to call (oh no! “Talk” to them?) or even to email them to bargain for a $200 reduction or discount. I was told several times by contractors that they often don’t initially quote or propose their bottom line best price, especially when subcontractors are involved, depending upon the level of expected competition, market conditions, etc. Why request “quotes” if you don’t think that you have the ability to bargain for better price and/or terms and conditions. The GOVERNMENT is the party that makes an offer to the vendor, after all! AND don’t ever ignore a cancellation penalty or any other objectionable term or condition in either a quote or condition!! It may be a standard term or commercial condition but it’s a conditional quote or offer. When the government responds to a quote, it’s making the offer to the vendor to form a contract… Yes, “it depends upon the situation”. Edit: I learned in a Business Law college course over 40 years ago and in negotiation courses and readings that almost everything is negotiable, especially quoted prices and terms and conditions and even printed and posted sticker and price tags. You can bargain for better terms and prices - even if the quote or offer otherwise meets “acceptable” evaluation criteria.
  21. I really need to understand the intent and purpose for providing draft plans and specifications to the proposed contractor and what if any response you are asking for. Asking a prospective contractor to perform a design review or provide design review comments would not be appropriate in my view.
  22. What reaction to the draft solicitation and draft plans and specifications does the customer expect from the proposed contractor? Is it simply in order to provide general information during the site visit? In the mid 2000’s, for the last two of nine DoD Chemical Weapons Demilitarization Plants*, the government shared draft solicitations with the very limited universe of interested contracting teams and sought their feedback. Then we conducted one on one meetings with each of them before finalizing the RFP’s. There were no plans and specs for those draft solicitations or for the final RFP. The Program Executive Office and partnering government agency teams considered the industry input when finalizing the RFP’s. The Systems Contracts at those two sites were for design, construction, systemization, pilot operations, final operations and closure, using task orders. Both Systems contracts were in the order of $2-3 billion. *These last two plants are under the Assembled Chemical Weapons Alternatives (ACWA) Program Executive Office.
  23. Thanks for reminding me, Carl. This is another reason not to use the term “discussions” with Part 13 , simplified acquisition methods. See 52.215-1 (a): “…Discussions are negotiations that occur after establishment of the competitive range that may, at the Contracting Officer’s discretion, result in the offeror being allowed to revise its proposal.” I can’t believe that contracting officials don’t know how to, orally or in writing, communicate with vendors, without referring to the term “discussions” or following the cookbook, Part 15 discussion procedures…
  24. Because you are still referring to the term “discussions” which is formally detailed in Part 15. Call it anything you want to. I recommend one of the synonyms. I like “bargaining” . bargaining implies the ability to give-and-take.
×
×
  • Create New...