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joel hoffman

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  1. Phased evaluation processes and multiple phased, down-select quote or proposal submission processes are different, distinct processes. I believe that govt2310 was initially referring to a phased submission approach, not a phased evaluation approach. One must be careful not to confuse the two, separate processes In my opinion, if preparing an offer/proposal or quote requires significant time, resources and expense, then requiring full proposals in a phased evaluation with the primary intention to simplify the government’s workload can be onerous and unfair to industry. This is particularly onerous and aggravating in construction and even more so in design-build (D-B) competitions. Both require significant time, resources and expenditures to compete and prepare technical and price proposals. A construction or D-B firm must first plan and organize a team, solicit subcontractors (who also have to invest time and resources to participate). There are significant cost estimating efforts required to develop price proposals for both construction and D-B competitions. In D-B, there is significant effort and expense by both the prime and design firms/teams to develop preliminary designs and price proposals. Fortunately, due to significant industry involvement (including Professor Ralph Nash, I believe), in conjunction with the government agencies then using the onerous DoD one step design-build approach, the two-phase D-B process (FAR 36.3) was adopted by Congress. Phase 1 was specifically aimed at using a performance capability based short-list selection process, with no design development or pricing requirements. Phase 1 was intended to have some similarity to the quality-based, Brooks Act A-E selection process. The short-listed firms them compete for contract award(s) in phase 2. Multiple Award Task Order, ID/IQ contracts can offer less expensive competitions for both industry and government for services or construction. A relatively simple and economical two phase, down-select task order process could be used where there are large numbers of contract holders (e.g., the various GSA schedules). The referenced Central Care, Inc. GAO decision is an example of this approach. Agency construction MATOCs should and Agency design-build MATOCs must purposely have small pools of contract holders to provide attractive, yet effective competition for task orders. Then, there should be no need to use multi-phase evaluations.
  2. For a go/no go, phased down-select, the process should describe the standard for the determination of the minimum for a go, since firms are going to invest their time and resources to respond to your action. ”Keep it Simple” doesn’t mean to say nothing at all. But the bottom line with this method is that it might not result in a manageable number of vendors for phase 2, rather it would include all “qualified” vendors or at least those vendors that the government has some stated minimum level of confidence in. If the object is limit the phase 2 participation to some manageable range or number, then one should at least explain the range or upper limit (maximum number) and that only the most highly rated vendors, based upon… (relevant experience? Past performance of that experience?, confidence of successful performance, etc.?) would be invited to participate in phase 2. “I’ll know it when I see it” level of simplicity isn’t fair to the universe of a schedule vendors, in my opinion.
  3. govt2310, since this is a “hypothetical” situation, did the solicitation state that the basis for the phase one “mandatory down-select” is “go/no-go” and describe a minimum standard of acceptability (“go”)? You said the circumstances were “very similar” to the Central Care, Inc. Decision. In that Decision, the solicitation stated that it was a best value, trade off process, with only the highest rated vendors in phase one invited to proceed with the submission of phase II quotations. Those vendors that were not amongst the most highly rated would be eliminated from the competition.
  4. If this I hypothetical is very similar to Central Care, why are you asking? The agency assigned the protestor’s experience factor low confidence , thus not one of the most highly rated phase 1 proposal submissions. Who says that “experience” isn’t a technical factor? It’s not a price factor. Experience has been a common technical (non-price ) factor. The Corps of Engineers used it for many years in hundreds of single phase and two-phase competitive acquisitions. Past performance is also a technical factor, which some agencies have combined with experience for a “confidence” rating. There are numerous protests denied for lack of or very little relevant experience. This topic has been discussed over the years in this Forum. The point of two phase processes or multi-step evaluations is to down select in phase (or step) 1 using discriminators, such as relevant experience. Probability of successful performance…
  5. Could one of us be able to call or otherwise contact the staff office for ASBCA to inquire?
  6. The DoD PROC funds are multi-year funds available for obligation for three years (5 years for ship and aircraft outfitting, etc.), correct? Adding scope to an existing contract might or might not require out of scope justification. But in-scope mods extending the time to meet the scope of the contract would seem to be allowable. What is the purpose of the contract and the extension? See, for example, https://www.dau.edu/acquipedia-article/procurement-funds#:~:text=The Procurement appropriation is used,for operational use or inventory. ——————————————— We used PROC funds from multiple appropriation years for the acquisition, installation and systemization, training, etc. of process equipment for Chemical Weapons Demilitarization (Chem-Demil) Plants during and after construction of those plants under the decades long Chem-Demil Program. The Chem-Demil Program was a Major Defense Program, with Systems Contracts (Services with Construction or design-build phases) for nine plants at separate locations in the US and Johnson Island and one plant in Russia for the Russian Federation. Each plant used multipke funding types (e.g., PROC, MILCON, Army and DoD O&M, etc. The Process Equipment for the majority of the plants was Government Furnished, under multiple contracts and installed by the Systems Contractors.. (Some plants were design-bid-build, systemization, pilot ops, operations, closure phases. Other plants used Design-Build in-lieu of government furnished design. There was a mix of Cost Plus and FFP used.) Some Systems contracts were simply phased, others were single award, task order, ID/IQ.
  7. Since I was initially administering awarded contracts, I first read, studied and frequently referred to the first edition of Administration of Government Contracts. Our Corps of Engineers District provided a copy to every Resident Contracting Officer (after 1984 renamed ACO) Office. I used it and kept current with the later editions on every subsequent job assignment/promotion. Later, when I also became involved with new competitive source selections and negotiating sole source contracts at the District Office Level, I did the same thing with Formation of Government Contracts. It probably depends on which aspect of the acquisition life cycle your current job is most relevant to… I also managed to have whatever office I was assigned to subscribe to monthly editions of Construction Claims Monthly and other contracting periodicals (e.g., The Nash and Cibinic Report) - pre-Internet. After we had Internet access, I checked daily for protests and Disputes. I had access to our District Office Law Library, to visit at least once a week.
  8. In the commercial world, companies are largely allowed to contract with whomever they want , based upon business decisions as well as established business relationships or to foster new business relationships. During the era of predominantly sealed public bidding processes, the government had very little choice regarding who won the contracts and there was little incentive for most firms to even get along with their government counterparts and vice versa , let alone develop positive working relationships. We kept getting many dirtbag, low bid construction contractors, especially among the small businesses. I often dreaded attending or conducting post award meetings with unpleasant contractor reps. I was only involved in about three construction protests, one service protest and no design-build protests in the 90 or so source selections that I either conducted, oversaw or otherwise participated in after we moved to competitively negotiated acquisitions. We managed to prevail or eventually prevail in those protests And - virtually all the dirtbags that previously haunted us either disappeared or shaped up!
  9. When you said it is a negotiated contract, does that mean competitively negotiated or sole source negotiated contract? The FAA can probably set the terms and conditions as desired. If you can accept that, fine. If you can’t - no contract.
  10. If the original poster is referring to construction contracts, then far 31.105 is also important. The contractor can charge whatever it wants and the owner can agree to, when applicable, for G&A for commercial market contracts or contract actions that aren’t subject to the cost principles in FAR.
  11. Per the Payments for Fixed Price Construction clause at 52.232-5, the prime must certify that it won’t retain funds from the progress payments due subs for performance, that it has paid the subs from previous progress payments and that it will timely pay the subs (within seven days after receipt) among other requirements It must identify in the progress payment invoice, among other things, “i) An itemization of the amounts requested, related to the various elements of work required by the contract covered by the payment requested. (ii) A listing of the amount included for work performed by each subcontractor under the contract. (iii) A listing of the total amount of each subcontract under the contract. (iv) A listing of the amounts previously paid to each such subcontractor under the contract. (v) Additional supporting data in a form and detail required by the Contracting Officer.” And as previously stated, the prime must pay its subs within seven days of receipt of payment by the government. i don’t know whether government employees understand all the ramifications and requirements. I suspect not. I don’t think that the author of the article at the website that Neil referenced earlier does, either. The contractor can withhold payment from a sub’s progress if consistent with the subcontract terms but it can’t ask for payment of or retain such withholding from progress payments. The government must not pay the contractor for withheld subcontractor earnings. This was a huge change resulting from the Prompt Payment Act (PPA) Amendments of 1988, implemented through an OMB Circular, effective in April of 1989. I was responsible for providing the policy and guidance to all of my District’s ACO offices back then. I developed and included forms for contractors to include in their progress payment requests. I still have my PPA file folder, which is several inches thick,
  12. The referenced article isn’t completely accurate concerning progress payments for construction contracts. In accordance with the Prompt Payment for Construction Contracts clause at Federal Acquisition Regulation 52.232-27, the prime contractor isn’t allowed to be paid retainage from subcontractor progress payments. The contractor must inform the government of any retainage withheld from subcontractor progress invoices. The government is then supposed to subtract such retainage from progress payments and hold them until the prime releases the retainage. That was implemented in the Prompt Payment Act Amendments of 1988, in response to subcontractor complaints to Congress of prime contractors traditionally withholding retainage from government prime contractor progress payments for subcontractor earnings to reduce the primes’ contract financing costs. The government is now supposed to hold such retainage- not the prime. This was done to disincentivize widespread prime contractor practices of using retainage from government progress payments for the purpose of financing prime contractors’ contract costs at the expense of their subcontractors.
  13. A contractor doesn’t have to absorb all of its G&A overhead costs. For instance, there is an indirect cost pool (numerator) and a cost of sales pool (denominator) when G&A uses cost of sales for the determination basis. in that case, I don’t see the government subsidizing the contractor’s commercial work. Regardless of what the contractor is charging other contracts for G&A, the government shouldn’t be paying any more than what the supported G&A rate would be. Am I wrong? Edit: Many construction contractors include various construction equipment costs, such as amortization of capital equipment, shops, mechanics, etc. in their G&A pools. But FAR 31.105 I’m in a requires a contractor to remove such costs from indirect cost pools and treat them as direct costs when a rate schedule is required/used for owned construction equipment. Thus, the effective G&A rate should be different (lower) than the company’s normal” rates that may be used on commercial, non-government work.
  14. If you are referring to “if time permits the solicitation, submission and evaluation of sealed bids” language, I believe that the time primarily referred to the time for publicizing the action, preparation and submission of sealed bids. A minimum of 30 days allowance for preparation and submission of bids (especially for construction contracts) was generally prescribed: “14.202-1 Bidding time. (a) Policy…A bidding time (i.e., the time between issuance of the solicitation and opening of bids) of at least 30 calendar days shall be provided when synopsis is required by subpart 5.2.” Bob is correct that it was a cut and paste job from the predecessors to FAR. Back in 1983-1984 time frame, Competitive bidding with public bid openings for most domestic construction and many other types of acquisitions was the normal or predominant method used in Federal (and also in State and local) government purchasing. The bid evaluation time wasn’t normally a long process…unless bids greatly exceeded the government estimate and/or available funding to the extent that they prevented award. Bidders would/will sometimes challenge the accuracy of the government estimate, which then invokes processes to review, justify or change the estimate. If the government agreed, then it might find the additional funds and/or justification to make an award. If it didn’t agree, then it may have resulted in a bid cancellation and/or bid protest and the government would have to justify its estimate. It might have required revising the design or requirements of the solicitation, then resoliciting. I was tasked several times to convert construction IFBs with busted bids to competitive RFPs to allow discussions/negotiaton techniques. That, of course, brought its own complications and frustrated the bidders - especially the lowest bidders, since the original bids had been publicly opened and shared…
  15. Here is a link to a Naval Postgraduate School presentation concerning “Price Analysis on Commercial Item Purchases Within the Department of Defense” It also specifically mentions the generality within FAR 13.1. https://www.dair.nps.edu/bitstream/123456789/1180/1/SYM-AM-14-122.pdf
  16. Price construction projects at the task order level and include the first task in the competition for base award. There is too much price/cost variation and market volatility to pre-price a variety of and/or multiple construction task orders for the same design. I think that it is equally applicable to both single award and multiple award Indefinite Delivery/Indefinite Quantity, task order contracts. Effective competition has been shown to produce reasonable pricing for construction task orders. The Army Corps of Engineers extensively used multiple award ID/IQ construction and design-build contracts, especially during the 50+ Billion dollar Army MILCON Transformation and Base Realignment and Closure Programs from around 2007-2016 era.
  17. If one is buying something for themself, they would normally do at least some “simple” form of “price analysis” to determine that the price is affordable and reasonable. If one is a government professional buyer, it would seem obvious to me that they have a responsibility to their employer as well as them self and other taxpayers to perform at least some “simple” form of price analysis for purchases using simplified acquisition procedures. One shouldn’t have to dig through the regulations to determine if they have such a responsibility. Even some form of cost analysis as “simple” as dividing the offered or quoted cost by an estimated number of hours to perform a service, then estimating the makeup of the price isn’t that hard to do. If a buyer can’t do any of those “simple” procedures, then they are in the wrong occupation as far as I’m concerned. It reminds me of a very recent thread in the Forum that addresses the order of acquisition procedures in the FAR, e.g., general requirements before specific requirements. Read the beginning of Nash and Cibinic books or the FAR for example. What are the basic responsibilities of government acquisition officials in the course of meeting the mission? During my career and lifetime, I’ve read books on successfully negotiating, which included the ideas that almost anything is negotiable. In one of my night school business law courses, I was taught that most listed prices are not set in stone and may well be negotiable if you bother to find someone in the company to negotiate with. in many cultures, bargaining is the custom. One co-worker in my office in Saudi Arabia, who was Korean, once told me that Americans are too gullible and don’t bother negotiating, when almost any price is negotiable. For crying out loud, how hard is it to search for sample pricing on the Internet… seems “simple” enough to me.
  18. That works. I don’t know if it is necessary to use ID/IQ with orders for unit priced services or which is less complicated but ID/IQ wil work. Don’t know how this work is ordered or otherwise individually authorized under the scenario described. At any rate, unit-priced line items for specific services are a form of fixed-price contractiing.
  19. As long as the unit prices are fixed with estimated quantities and you only pay for actual quantities provided, it can still be a FFP contract under Part 16. I’d separately describe in the specs that the quantities are only estimates, that additional line item quantities mght be required (and contractually added/adjusted as necessary) , that there could be underruns of line item quantities, that payment will be made for actual quantities provided during the contract period and specify the billing periods (e.g., monthly, bi-weekly, weekly, etc.) for progress payments.. When closing out the contract, your contracting system might require you to reconcile final quantities, administratively adjust the final line item quantities and finalize the total contract cost.
  20. You can use a FFP contract with fixed unit prices for line items with estimated quantities that can vary depending upon usage. more details available if you understand the basic concept. See for instance FAR 36.207. You might have to include language regarding a range of quantities. The quantities can be increased by mods if necessary. But this type pricing is still considered a FFP contract type.
  21. I think so, concerning the execution of an acquisition. One may well select a specific, special category of contracting up front to execute but many of the GCR would likely apply to the execution processes. It’s not so much of a question of “Chronological Order” as general and/or overarching principles and procedures often preceding separate, specialized topics and procedures.
  22. Inasmuch as this is part of an awarded vessel refit contract, I suspect that there might be already a warranty of systems clause in the contract. Otherwise, why is Guest asking questions about “systems”? It should be obvious that a warranty only applies to the work performed. Unless the contract identifies what “systems” are within the contract scope and excluded bottom paint as a system, I consider the bottom paint protective coating system to be a system. A protective coating system starts with surface prep and includes primer application, any further surface prep and one or more applications of bottom paint. If the contract requires an inspection, marking and repair of the bottom paint system and the contractor misses some areas that a reasonable govt inspection failed to note at the time of identification and making the repairs, then the contractor “might” be responsible for additional repairs - within the warranty period if any. EDIT :You normally cannot make a contractor responsible for additional work areas under warranty that couldn’t be determined during the contract performance or that failed after the original contract oerformance. It depends upon the contract requirements when read as a whole.
  23. Are you the technical rep or contracting? Is this spot painting a steel hull I.e., sanding and prepping and repainting and (if in salt water) applying bottom paint? Those are typical repairs for steel hulled boat paint. From a contracting aspect, this is normal maintenance and repair (rust removal and patching the protective coating and bottom paint, if any). The contractor would only be warranting the extent of its work. From the technical perspective, check with the Navy or Coast guard to see how they do it and what type of warranty they get. Lastly, from the info you shared, it would be foolhardy not to set it up so that the government can inspect each phase as performed, e.g., after all grinding, sanding or sandblasting; after priming; after each coat of paint; after each coat of bottom paint, etc. You could call this a “system” or not. Protective coating paint system, bottom paint system, whatever. But it is simply a repair to any such system. As ji said, some market research is necessary.
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