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joel hoffman

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  1. Construction multiple award ID/IQ’s can already be set up for price completion at the task order level rather than require FP at the contract level. That was implemented years ago.
  2. Sorry but these are questions to ask the IRS and/or any tax advisors that you employ…
  3. How about a Freedom of Information Act request to the agency for the applicable registration details? You mentioned the contract ombudsman…
  4. Protest isn’t necessarily the only avenue applicable to allegations of misrepresentation of business size/status.
  5. Yes- and the government and some commercial customers may have different quality, cost, budget and schedule goals and objectives than other commercial customers. Many commercial clients will tradeoff higher initial cost (and probably not be overly concerned about travel costs) vs. shorter time to start or resume production, get their products to market, and/or quality and reliability, for instance. Return on investment. Many commercial customers often have continuing relationships with their vendors, I.e., little or no competition involved. True best value…
  6. Retreadfed, I agree that 52.212-4 Alt I does not incorporate the cost principles from FAR Part 31. Z said that “travel [is] a reimbursable ODC on a T&M Line Item” in a fixed price contract. And Z said “ Business Class jumped [off] the screen when the CO looked at the proposal's travel cost estimates”. In other words, the KO analyzed the basis for and/or amount of the proposed flying cost. That constitutes cost analysis, which is addressed in subpart 15.404 and is applicable when requiring and/or evaluating data other than certified cost or pricing for commercial services in 15.403. Per 31.103 (a), The cost principles and procedures in subpart 31.2 and agency supplements shall be used in pricing negotiated services contracts whenever cost analysis is performed as required by 15.404-1(c)” [“Cost analysis”]. As I mentioned above, 31.103 (b) (ii), addresses using the cost principles and applicable procedures in Part 31 for cost reimbursable aspects of time and materials pricing.
  7. Have you tried contacting the SBA? If you think that there is evidence of misrepresentation of small business status involved in a contract award, I would think that you could discuss it with the SBA and/or the contracting agency, without filing a protest.. it See for instance, this link from the WIFCON.com homepage: https://www.justice.gov/usao-edva/pr/government-contractors-agree-pay-39-million-resolve-claims-misrepresenting-women-owned i googled “Department of Justice misrepresentation of small business status”. This was was one of several hit that came up https://www.insidegovernmentcontracts.com/2022/06/doj-settlement-underscores-the-significance-of-incorrect-small-business-representations/ Here is another one referring to the SBA’s Code of Federal Regulations at 13 CFR 121.108: https://www.law.cornell.edu/cfr/text/13/121.108
  8. @Retreadfed, you don’t have to protest in the event of such criminal activity.
  9. Retreadfed, there was evidence… Michael Sears — chief financial officer at Boeing. Negotiated Druyun’s post-retirement employment with Boeing. Convicted for role in the scandal, served a four-month prison sentence. Phil Condit — chief executive officer of Boeing. Forced to resign as a result of the deal. See https://sites.tufts.edu/corruptarmsdeals/the-boeing-tanker-case/#:~:text=The case stemmed from a,Department of Defense (DOD).
  10. Thanks for the clarifications, General Z. So, some costs were indeed analyzed (“cost analysis”) for the reimbursable aspects of the Time and Materials portion. See 31.103 Contracts with commercial organizations. “…(b) In addition, the contracting officer shall incorporate the cost principles and procedures in subpart 31.2 and agency supplements by reference in contracts with commercial organizations as the basis for- (1) Determining reimbursable costs under- …(ii) The cost-reimbursement portion of time-and-materials contracts except when material is priced on a basis other than at cost (see 16.601(c)(3));” Edit: However, see also 12.301: “…(d) Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial products or commercial services, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial products or commercial services.“ But also: 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.
  11. it also depends upon who the customer is. A commercial customer may have other priorities than quibbling about the cost of travel and/or may not have strict travel protocols/policies. Many commercial customers place priorities on getting their products and services to the market with less emphasis on the initial cost of associated services or development costs. There may or may not be competition involved in providing services to non-government, commercial customers. The government generally does have policies and is mindful of travel costs. Has been at least since 1980, when I joined the Civil Service. Travel costs comprise a major Federal cost. The federal government isn’t necessarily bound to adopt every commercial practice, as some here have suggested. It is important to consider some principles regarding reasonableness of costs or prices, including commercial products and services. Such as the definition of commercial services in 2.101 and whether they were priced competitively, 31.201-3 Determining reasonableness and 15.4 regarding commercial services. In addition, many companies have direct, overhead or G&A rates that may include costs that are not necessarily illegal, but unallowable on Government contracts.
  12. 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.
  13. 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.
  14. @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
  15. 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.
  16. 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.
  17. 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,
  18. 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.)…
  19. 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.
  20. What happens if any online referenced provisions and/or contract clauses are revised ?
  21. “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!!!
  22. 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!
  23. 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.
  24. 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.
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