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joel hoffman

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Everything posted by joel hoffman

  1. joel hoffman

    We Cannot Explain Our Requirements

    You might also consider whether or not to use the consultant as a technical advisor during the source selection process.
  2. joel hoffman

    We Cannot Explain Our Requirements

    If the in-house using activity doesn’t have the expertise to write the performance work statement and you think that a consultant could write a clean, coherentt and pretty good PWS in a week, what are you waiting for? You have an answer, so the team should move out ASAP and hire a consultant, who won’t be interested in competing for the resultant contract.
  3. If the contract already provides for a price redetermination for Phase 2 production in Phase 1 , then it would seem that this is within the terms of the contract and could still be done.
  4. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    That's not what the original poster stated: The OP should do as you advised earlier. The solicitation doesn't appear to comply with the policy stated in 41 U.S.C. § 1126 (2016). What the word "accepted" means is anyone's guess. It is apparently the OP's description or interpretation of the supposed answers to questions, whatever all that means.
  5. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    I’m not following you. Requiring a specific type of past performance source of rating that is only available for firms that were primes on government contracts signifies to me that only subs who are or have been primes on govt contracts and who have CPARS rating(s) will be considered. That might be pretty restrictive. There are other ways to obtain past performance information on subs than through CPARS . I used to evaluate certain key subs’ experience and past performance in most all construction and design-build source selections or task order competitions. The prime could provide assessments of previous experience with the firm(s) as subs to them. The subs could identify references for previous projects to contact, etc. My guess is that the reason the govt would only be evaluating CPARS PP information for subs is for a sub’s experience to qualify the prime in the event that the SB prime has no relevant CPARS ratings to qualify or to be higher rated on their own . Not enough info to tell what the reasons are.
  6. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    However, it does not prohibit some type of subcontractor performance evaluation, either.
  7. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    I did see where the sub or the prime would likely have to be or have been a prime on anther contract in order to have a CPARS rating. That might or might not be overly restrictive and might or might not be grounds for success in a protest of the RFP terms. But it would seem to me that requiring a CPARS rating at all to qualify is even more restrictive and might violate the favorable/unfavorable rule for firms without a record of past performance. EDIT: See, for instance, 41 U.S.C. § 1126 (2016): Title 41 - Public Contracts, Subtitle I - Federal Procurement Policy, Division B - Office of Federal Procurement Policy, Chapter 11, Establishment of Office and Authority and Functions of Administrator, Subchapter II - Authority and Functions of the Administrator Of course, this isn't the "whole story" concerning applicable law, regulation or case history. At any rate, requiring only CPARS past performance information might be overly restrictive. Don't know the whole context and consulting with competent attorney is advisable.
  8. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    Good advice. If time permits, asking the agency first is a good idea here.
  9. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    At first read, looks restrictive to me.Please clarify. 1. Is the government separately evaluating subcontractor past performance? Or does the RFP state that past performance of the prime contractor’s proposed subcontractor(s) may be used to qualify under the past performance evaluation factor? 2. Is this a very specialized project scope of work such that only firms with recently completed US government contract work experience can successfully perform it? It is generally true that offerors without a record of relative past performance must be evaluated neither favorably or unfavorably. The rule cited above implements Statute - which specifically refers to the term "past performance". FAR Part 2 defines it: "Past performance means an offeror's or contractor's performance on active and physically completed contracts (see 4.804-4)." However, the government might be allowed to separately require that a firm or its proposed subcontractor possess relative “experience” on similar type work. Many agencies have been combining the experience and quality of performance under one factor, especially since DoD has been using recent, relative experience in its two step “confidence rating” system. For the DoD’s Version of past performance or “confidence” factor, the relevance of project experience is used, recognizing that past performance records on contracts that were related in experience to the instant one are generally more relevant in assessing the overall “confidence” of a firm. When experience is a separate factor from past performance, the government has been able to use it as a qualifier, thus avoiding the so called favorably/unfavorably rule. However, when an agency mixes experience and the quality of that experience under one “past performance” factor, I think that they can run afoul of the rule when they require a past performance record to qualify or when they require experience to qualify under a "past performance" factor. Regardless how, when possessing a past performance record becomes go/no go criteria rather than comparative criteria, I think the agency is not complying with the favorable/unfavorable rule. Before and when I was using the DoD confidence rating system, I evaluated recent relative experience under a separate factor. We were able to use experience as a qualifying factor when seeking firms with related experience as a discriminator among many offerors. This was particularly important as a discriminator in Phase One on Two Phase source selections for design-build single award projects or for establishing multiple award design-build ID/IQ pools. As an example where a sub could be used on an SB set aside to qualify the team under recent, relative experience, we had a project to construct some new Air Force airfield pavement. The contract included quite a bit of ancillary site work, subgrade, excavation, etc. That would be enough work for a non paver small business prime to satisfy the minimum of 15% self performed work requirement with a subcontractor performing the concrete paving. This was a government designed project. It was critical that the firm which would actually be performing the concrete paving have recent, relative (and acceptable) experience in concrete highway or airfield paving. So we established that, as go/no go experience evaluation criteria. Either the prime or a paving sub could qualify the team. It didn’t have to be on US government or DoD contracts, as there are few such projects these days. (Of course, we didn’t want the SB prime to just be a “front” for the paving sub, which would probably also have previous experience as a prime on highway or airfield projects. There were separate evaluation criteria under other factors used to disqualify obvious front type arrangements. We successfully weeded out several teams, including the lowest priced offer, who lost an agency protest of its disqualification. ) I cant tell from the limited information presented here why the government is using past performance ratings on government contracts as a qualifier or if past performance of a sub can be used for an overall past performance assessment. But it seems like a narrow window. They might be flaunting the prohibition on unfavorable treatment of teams without a government quality of performance record. By excluding an offeror's performance on active contracts (without yearly ratings, etc.) , it looks to me that they are using experience as the qualifier and combining it with a record of performance.
  10. Yes, the conversation went farther. The original poster clarified, on Tuesday at 5:54 PM (CDT), that he or she was referring to a situation where 1) the agency encourages offerors to submit lower prices than the schedule prices and/or 2) the task order includes additional classifications of professional personnel that are not covered by contract established rates. My first reply, on Wednesday at 5:54 AM (CDT) was in response to that clarification by the original poster. In the specific situations described in the clarification, the government would request task order proposals from multiple award task order contract/MACC/Schedule/pool members/etc. contract holders. If the vehicle is a single award task order contract, the government would also request a proposal, although There wouldn’t be competitive pressure to “wage slash”. I am on the road today so cannot take the time to research the reference. However I believe it is DOD acquisition policy that, when using the GSA schedules or another ID/IQ contract vehicle, the government should encourage or request discounts from the schedule/ID/IQ contract rates. I believe that it is or was part of the “Better Buying Power” Initiative *. It doesn’t matter so much to me how it’s done but the government should be concerned about the possibility of wage slashing for professional employees when recompeting for existing services. EDIT: here is one example of DoD policy concerning seeking discounts when using the GSA Schedules: https://www.acq.osd.mil/dpap/policy/policyvault/USA004263-15-DPAP.pdf *This wasn’t necessarily part of “Better Buying Power”. Having refreshed myself somewhat concerning the Better Buying Power initiative, those policies do not necessarily make things easier for the acquisition force...
  11. joel hoffman

    Probability Problem #2

    I am sure that Hoffman won’t protest 😄
  12. joel hoffman

    Probability Problem #2

    I’d hire Edwards and select the method that would justify it.
  13. Ok with me. But if the FAR uses a method developed by NASA for recompetes using a C-Type contract, why not use it for recompetes using a task order under an ID/IQ , D-Type contract? Just for simplicity’s sake? Not arguing. Just asking.
  14. I’m sure that Congress passes too many acquisition statutes. However, it seems to me that there was and could be a real problem with “wage busting” for professional employees, who aren’t covered under the Service Contract Act. NASA was concerned and developed procedures to discourage it. The DAR picked up on it and it was adopted in the original FAR. In my years with USACE, I dealt with many professional employees of service contractors for our client Installations, who had worked for many years at the installation, for various contractors, depending upon who won the follow-on contracts. These engineers and scientists generally have a deep sense of duty and loyalty to the mission and the installation and possess vast institutional knowledge. This is extremely valuable during development of design criteria and lessons learned for new design, design-build and construction programs/projects and in providing technical advice during source selections. In my opinion, it is good public policy to protect them from wage busting during recompetes. To me, the type of contract vehicle used for the recompete contract for those contract employees shouldn’t matter - whether by task order or a stand alone competition. I would want to discourage wage busting
  15. Ok, I investigated the links that Vern provided this morning, traces the origins of the policy and procedures concerning anti-wage busting to win service contracts and recompetes of services. As Vern indicated, NASA developed procedures; The GAO reported on the NASA procedures and successes; Defense Acquisition Regulations incorporated procedures that were similar in intent to NASA’s. The language is similar to the current provision. I suspect that the language, still used today, predates common usage of task order contracts to acquire professional services or to recompete existing services.
  16. Thanks, Vern. I saw that there were earlier references than 1992 but I couldn’t access the 1992 FR background language I was trying to trace the source of the disconnect between the language in the provision and that in the prescription. I’m not a student of the background of the timeframe that ID/IQ’ task orders have been used for acquiring services or for recompeting existing services. The language in the prescription is essentially the same as it is now, since December 1992. I will study your citations if I can but am otherwise tied up the rest of today..
  17. Note: I was composing my above post while Vern and the others were posting during the past hour or so. I agree that the CO should use their head to compose appropriate language to meet the intent of the policy if the application would not fit the wording of the provision. The disconnect between the policy and the provision goes back to at least the 1996 FAR.
  18. The general policy and prescription at 22.1103 “Policy, procedures, and solicitation provision” don’t align with the language in the Provision at 52.222-46, which seems to concern re-competing services that include meaningful numbers of professional employees. Nonetheless, the expressed policy would logically seem to be applicable to other than IFB acquisitions -at least for recompeting services (and maybe for new services) -whether they be for a new stand-alone contract or for a task order under an ID/IQ contract. Why would the government not be equally concerned about the realism of compensation plans for professional employees for a new contract as well as for a task order? Granted, there are disconnects between the prescription at 22.1103 and the language in the Provision but the policy concerning realistic compensation plans and the stated concerns In the provision for recompeted services would seem to be valid for a task order or for a C-type separate contract. So, should a contracting officer merely literally read and follow the FAR or try to understand the intent of the labor policy and reasonably apply it? Not having access to a law library or to LEXIS, etc., I tried to follow the regulatory trail of the prescription and the Provision. I wasn’t able to view the older Federal Register volumes that cited in my various hardbound FAR’s. My oldest is from 1996. The Provision dates back to 1993 and the FR pages are dated 12/21/1992 (which I couldn’t download). The language and paragraph organization of the prescription in the 1996 FAR varies somewhat but still references similar scope of the policy.
  19. I wasn’t sure what the original question was. The OP apparently rewrote it after several responders questioned it.
  20. The language of the provision at 52.222-46 Evaluation of Compensation for Professional Employees, appears to only be applicable when re-competing for existing services. It doesnt seem to fully line up with the broader policy stated in in FAR 22.11. However, it seems that the policy in FAR 22.11 or the procedures therein for evaluating proposed compensation for professional employees could be as important or applicable in a task order as it would be for re-competing services for a new stand alone service contract. This would be applicable where not all professional compensation is pre-priced in the base ID/IQ contracts or where the competing firms may offer discounted pricing, In such situations, the government would be soliciting* a proposal or proposals for a task order, not simply “issuing an order”. I don’t see why it would be inappropriate to include the provision at 52.222-46, Evaluation of Compensation for Professional Employees (or similar evaluation language) in such a solicitation*. *The definition of solicitation in FAR Part 2 says, in part: “Solicitation means any request to submit offers or quotations to the Government. “ I think that this is what MAY-D-FAR is referring to in his/her last post.
  21. Moreover, it it were a large overhead sign for a federal installation, exceeding the simplified acquisition limits, I doubt if that federal government agency would be allowed to directly purchase and install it in the R.O.W. either. The State DOT would still likely install it. Think of the safety, standard design and engineering requirements and the potential for damage or injury to the public if an accident, wind damage, maintenance issues, etc. were to occur. But the State DOT would likely acquire and/or manufacture and install or have signs within the R.O.W. installed. That much seems entirely reasonable to me. As for ethics - State agencies have their own regulatory and statutory procurement requirements plus is covered in: 2 CFR 200 - UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS https://www.gpo.gov/fdsys/pkg/CFR-2014-title2-vol1/xml/CFR-2014-title2-vol1-part200.xml#seqnum200.201 It, in part, covers grants, agreements or contracts with State governments. Sorry for all the edits...
  22. See 13.106-1 Soliciting Competition Note that “e.g.” means "for example". It’s not all inclusive. I don’t think that you must post notice of the solicitation at the FBO for a simplified acquisition under $15k per FAR 15.101 (a)(2) do you? Since you can't directly purchase or install the signage, is there any federal business opportunity? It's the State DOT's responsibility to provide the signage. It's probably covered in the US DOT CFR's. The Federal Highway Administration's "Manual on Uniform Traffic Control Devices" provides the design and installation standards for roadway signage and markings, etc. Beyond all that, it is perfectly logical and reasonable to me that the State DOT should and does retain the responsibility for manufacturing and installing traffic and informational signage within State highway rights of way. This is for uniformity and adherence to highway signage regulations. You apparently don’t have the right to install such signs within State Highway rights of way. Traffic signage might remain the property of the State DOT. Sorry for all the edits...
  23. Just show it in the remarks column and be done with it. The public bidding process is meant to be just that - “Public” for transparency. Will that alleviate your concerns? Are you looking for a specific FAR or Agency prescription to do it or to allow you to do it? The FAR doesn’t prescribe how to do it. I would suggest then, use your head. If the bid opening and recording process is meant to be public, then show how you determined who won the contract award.
  24. joel hoffman

    Proposal Preparation Costs

    You also indicated that you intend to investigate how far behind DCAA is. That should be relatively easy to determine by contacting them for info and also for info concerning the additional requested costs involved. I am assuming that this is an ongoing contract. Is that correct?
  25. joel hoffman

    Proposal Preparation Costs

    Tenacious, what does the release language specifically say? Does the contract place boundaries on what type of proposal preparation and negotiation costs are reimbursable and/or when they can be incurred ? This is the language described in FAR 43.204 (c) (2): “CONTRACTOR'S STATEMENT OF RELEASE In consideration of the modification(s) agreed to herein as complete equitable adjustments for the Contractor's ________ (describe) _________ “proposal(s) for adjustment,” the Contractor hereby releases the Government from any and all liability under this contract for further equitable adjustments attributable to such facts or circumstances giving rise to the “proposal(s) for adjustment” (except for __________ ).” Since you didn’t state that the proposal prep and negotiation costs are settled at FFP, I assume that it is a cost reimbursement CLIN. You are also not clear whether the request for price redetermination would exceed the applicable limitation of costs .
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