Jump to content
The Wifcon Forums and Blogs

joel hoffman

Members
  • Content Count

    3,463
  • Joined

  • Last visited

Everything posted by joel hoffman

  1. joel hoffman

    Small Business Participation Plans

    Vern, I did say that using go/no-go (acceptable/unacceptable) evaluation criteria would be problematic. This was because the DFARS language in 15.304 (c)(1) describing “examples of evaluation factors” (which has been moved to the PGI at 15.304(c)(I)(A), appears to use some comparative language. I doubt that these would rise to the level of individual “factors” in real source selection plans. They are evaluation criteria. More sloppy wording. Under a “factor” for “the extent of commitment to use such firms” (those which are specifically identified?) it says “(for example, enforceable commitments are to be weighted more heavily than non-enforceable ones)”; “the complexity and variety of the work small firms are to perform”; “the realism of the proposal”; “the extent of participation of such firms in terms of the value of the total acquisition”; “the extent to which such firms are specifically identified in proposals” (note the plural word “proposals”, which may mean something or may just be sloppy). The word “extent” refers to "the range over which something extends" in one definition of extent in Merriam Webster on-line Dictionary. So I said problematic -that it is open to question or debate. Not categorically prohibited but it would seem to more naturally fit a comparative assessment. Furthermore, the whole thing is wishy washy because they are referred to as “examples” per DFARS and PGI 215.304 (c)(I)(a) says ”Evaluation factors may include-“ Does the National Science Foundation use the DFARS for its evaluation ? Note that this is a DoD requirement. I used the term “small business participation plan” because it was in the title of the thread plus I didn’t want to write “extent of participation of small businesses in the performance of the contract” every time. I hate to type - especially on a smart screen. Sorry anyway. I am rarely near a computer screen these days. 🙄
  2. joel hoffman

    Small Business Participation Plans

    And Don provided the Fed Register Entry in a quote of one of my early posts. Vern, I added the link again, above a little while ago in response to your request to Don. Sorry, Vern, I was late for a luncheon appointment and didn’t have time to search for the post, copy it, go to page 2 and paste it into my response at the time. You may have noticed the typos in my response because of my limitations with STUPID Siri or stupid voice text or stupid me...
  3. joel hoffman

    Small Business Participation Plans

    I don't think it says that exactly, but that's ok. If the subcontracting plan reflected what was in the small business participation plan, what would be the reason for incorporating the small business participation plan?  It may also have an effect on large businesses, depending on what the contract required. For example, the contractor need only make a good faith effort to comply with the subcontracting plan under FAR 52.219-9. Some contracts require that the contractor actually achieve what was proposed in their small business participation plan, good faith effort notwithstanding. I don't know. I can only speculate. When I asked contractors what they thought, they said it was a big deal. I'm hoping some join this thread to share their experience. Don, 1. The small business utilization[EDIT: participation] plan would only be separately incorporated in contracts without a small business subcontracting plan. It’s already necessary to incorporate it into the subcontracting plan. My point is that the industry had the opportunity to review and comment, per 41 USC 1707, on the requirement to incorporate it in the subcontracting plan. 2. Whatever effect it may also have on large business to incorporate the utilization [participation] plan information was covered in the 20 Sep 1998 Interim publication of the proposed rule with request for comment. As I said, the public was properly notified of the proposed requirement to include it in the subcontracting plan. Therefore, 41 USC 1707 has been considered . Im sorry that I can’t seem to get this point across. Your point is that the impacts of incorporating the utilization [edit: participation] plan in the contract haven’t been considered or allowed comment per 41 USC 1707. Well - they have - for those contracts that will have a subcontracting plan incorporated. 3. That leaves the question with respect to incorporating it in contracts with small business primes. [EDIT: small business participation includes self-performance by small business primes or SB joint venture members. The SB prime may include its own participation in contract performance.]
  4. joel hoffman

    Small Business Participation Plans

    Is this what you are referring to? Joel: Yes. I think that it is also mentioned in Part 19 or 219. Which statute? 41 USC 1707. Sorry. I was running late for lunch. Yes, what I meant is that the prep, submission and evaluation of the small business participation plan was publicized per the requirements of 41 USC 1707. Any administrative and cost burden for the rule making process for those activities would be associated with that process. That leaves the question of what significant additional administrative or cost impact would likely result from the government incorporating the plan into a contract with other than a large business. Thus, no subcontracting plan involved. The small business contractor would have to award and administer subcontracts for the work that it identified in its utilization plan regardless of its inclusion in the contract or not . If the contractor had proposed enforceable commitments to identified firms in the plan, what is the significant additional burden due to it being in the contract? If the contractor didn’t identify firms or include enforceable commitments , then what is the significant additional burden? Contract clause 52.219-8 is already included in contracts with small businesses. So any activities associated with good faith compliance with the -8 clause should not be attributed to “incorporating” the small business utilization plan. I see the practical downside to the contractor as being expected to deliver what it proposed and supposedly priced to win the award. Bid shopping is thus discouraged. It would take a “bolden” contractor to complain that it’s impact was that it had to do what it Proposed to do. In my opinion, which may be wrong, the actual incorporation has little impact. The more significant impact is having to produce and submit the utilization plan with the contract proposal. That’s probably what people are most aggravated about. And - in my opinion, bid shopping is sleazy, so I don’t give a wit about the impact of reducing, impeding or preventing a prime from bid shopping. Carl...what is the significant additional administrative or cost burden after award due to the incorporation of a small business [Edit: “participation” not “utilization”] plan that was submitted with the proposal. By additional, I mean in comparison to otherwise required contractual duties and activities. [EDIT: small business participation includes self-performance by small business primes or SB joint venture members. The SB prime may include its own participation in contract performance.]
  5. joel hoffman

    Small Business Participation Plans

    I did that way back on page 1. I provided a link. (https://www.gpo.gov/fdsys/pkg/FR-1998-11-20/pdf/98-31039.pdf) And it is described in the DFARS at 215.304 That was the Federal Register notice for the Interim rule with comment period The Final rule was adopted without change.
  6. joel hoffman

    Small Business Participation Plans

    1. The fed register notice did state that the information in the plan will be incorporated into the subcontracting plan ( large business) which is to be made part of the contract Thus, no conflict with 41 USC 1707. 2. The fed reg notice also covers the actual prep, submission and evaluation of the plan. No conflict with the Statute. 3. How about somebody advising what significant administration and cost impact is involved with incorporating the info in the plan into the subsequent contract with small business? [EDIT: small business participation includes self-performance by small business primes or SB joint venture members. The SB prime may include its own participation in contract performance.]
  7. joel hoffman

    Small Business Participation Plans

    Vern, The Notice in the Fed Register stated, for Large Businesses, the evaluated information is to be incorporated into the subcontracting plan for large businesses. I presume that is after evaluation of the subfactor. I think that go/no rating of the extent of participation would be problematic. The language states that the government will evaluate the extent of the planned participation, including the extent to which firms are identified, the relative extent of overall subcontracting, extent of commitment, overall variety and complexity of the work, overall share of total contract value, etc. it also says that enforceable commitments shall be weighted more heavily. These appear to be comparative evaluation criteria.
  8. joel hoffman

    Small Business Participation Plans

    Carl, 52.219-16 and 52.219-9 are inapplicable to small business primes. For small businesses, DoD is only supposed to evaluate the extent of small business participation as an evaluation factor or subfactor, not a Subcontracting Plan. For large business that information is supposed to be incorporated into their subcontracting plan, which is supposed to be incorporated into the contract. Are you being required to submit a Subcontracting Plan? I hope not. Edit: What information are they requiring you to submit for the source selection competition to evaluate the extent of planned small business participation? [EDIT: small business participation includes self-performance by small business primes or SB joint venture members. The SB prime may include its own participation in contract performance.]
  9. joel hoffman

    Small Business Participation Plans

    Pepe, what is the potential conflict with RFA of incorporating the Small business participation plan? Keep in mind that the requirement for the plan itself was properly publicized, comments sought, received and finalized... [EDIT: small business participation includes self-performance by small business primes or SB joint venture members. The SB prime may include its own participation in contract performance.]
  10. joel hoffman

    Small Business Participation Plans

    One last thought. The government may incorporate all or part of the proposal into the contract (yes, agreed, ji20874). How did I get sucked into justifying that? Don clarified today that this forum poll and initial discussion was only about incorporating part of a proposal into the contract. I had thought that it was also about the process for requiring proposers to prepare and submit the information As I have explained, that is clearly authorized. Game over.
  11. joel hoffman

    Small Business Participation Plans

    So, what prohibits the government from incorporating it in the negotiated contract? FAR 1.102 (d) would seem to be applicable and appropriate here if it isn’t covered or prohibited by FAR or DFARS or in violation of law or regulation and is in the best interest of the government. Are you saying that incorporating aspects of a proposal in a contract must first be publicized in compliance with 41 USC 1707 because the specific act of “incorporating” the otherwise validly required small business participation plan has a significant effect beyond the internal operating procedures of the Agencyand/or has a significant cost or administrative impact on contractors or offerors? So, the poll questions here don’t pertain to the cost or administrative impacts involved for large and small business proposers to prepare and submit the small business participation plan. It’s clear that those procedures and requirements were already publicized , comments considered and finalized years ago. I’m trying to understand what significant cost or administrative impact it would have for the contractor to actually do what it said it would do in its proposal. Are you saying that the impact of incorporating a small business participation plan that identifies specific subs is that the contractor can propose something (and price it in its proposal) but then is not allowed to bid shop for subcontractors after award? [EDIT: small business participation includes self-performance by small business primes or SB joint venture members. The SB prime may include its own participation in contract performance.] Anti-bid shopping rules are not uncommon in federal, state or local public contracting. Bid shopping is not in the public’s interest. The buyer gains nothing from bid shopping and the subcontracting community suffers from it. [An example of bid shopping is where a prime obtained bids or proposals from a sub or subs during its proposal preparation. Then, after award, the prime went shopping for lower prices, and/or pressured the sub or multiple subs to lower their prices or be replaced by other firm(s) at lower prices. Primes often reveal the price-to-beat to others. It’s like reverse bidding/auctioning. [EDIT: small business participation includes self-performance by small business primes or SB joint venture members.]
  12. joel hoffman

    Small Business Participation Plans

    Carl, the plan for small business participation applies to all offerors including those not required to provide a subcontracting plan. [EDIT: small business participation includes self-performance by small business primes or SB joint venture members. The SB prime may include its own participation in contract performance.] It is a separate requirement and appears to go beyond the generic subcontracting plan by considering every offeror’s plan to actually identify and commit to using SB/SDB’s as well as considering their past performance (not an enforceable aspect of a proposal nor necessarily even part of a proposal, of course). The policy states that enforceable commitments should carry more weight in the evaluation. There is a difference between “we intend to use Jo Blow as the refrigeration and air conditioning sub” and “we will use Joe Blow as...” or Joe Blow will be our R&A/C sub”. How do you make something “enforceable” without incorporating it into the contract? By the way, the separate subcontracting plan for large business primes is supposed to be incorporated into the contract, as I stated earlier. The use of contract requirements that require a contractor to use subs that it identified in its (negotiated) proposal isn’t a new concept. See, for instance 52.244-4 “Subcontractors and Outside Associates and Consultants” (A-E Services) For design-build construction contracts, we’ve used similarly worded clauses for nearly 30 years. These clauses do allow for approval of justifiable substitutions of those key personnel or key subs that it identified in its proposal..
  13. joel hoffman

    Small Business Participation Plans

    In observing my overall Army Command’s level of implementation of the added requirement to consider small business participation for all offerors, whether large or small as well as evaluating past performance of all offerors in this area, whether large or small, it appeared to be largely ignored. There are probably several reasons for this. The FAR and DFARS didn’t provide a cookbook for contracting officers and contract specialists to follow. It is challenging for anyone to evaluate past performance of small business primes in utilizing small and small disadvantaged business subcontractors. They haven’t been required to formally plan for or to report such information to the government. [EDIT: small business participation includes self-performance by small business primes or SB joint venture members.] Program and project managers know even less about the subject than the 1102 community and don’t necessarily care about socioeconomic policy or procedures. Many in government acquisition are challenged in reading or thinking past the literal wording in the regulations. For instance, years ago, we updated the teaching material for the source selection aspects of the life cycle acquisition process for Design-Build Construction in our Proponent Based Training D-B class to address evaluation of the separate small business participation and past performance for all offerors, large or small. In my opinion, the contracting instructors who were supposed to teach it didn’t get it. Thus, they mostly ignored it and didn’t explain it to the students. It would be interesting to learn to what extent the small business participation procedures are really addressed and used in the source selection process. In another thread in the WIFCON forum, it was evident to me that some of the regular contributors here have expressed distainment for Part 19 implementation of official government policy concerning small business contracting and subcontracting. And, in this thread, it appears to me that Don Mansfield may be questioning whether the policy is authorized or legal and whether incorporating those aspects of an offerors proposal into the contract is enforceable. I was assuming that his was the first vote. I may be wrong. If so, I apologize.
  14. joel hoffman

    Small Business Participation Plans

    That question is vague because "significant effect" and "significant cost or administrative impact" are vague. Because the question is vague, it is foolish to answer it yes or no. At most, such an answer would be merely an expression of unsupported belief in the existence of uncertain states of affairs. Yes, the question is vague. However, I don’t think that it is “foolish to answer” it no. As people are probably aware, Don has repeatedly challenged instances and questioned whether various government requirements are “legal” and authorized based upon OMB clearances, whether they have significant economic and administrative impact on industry beyond internal agency procedures, etc., etc. In this instance, both the FAR committee and DoD publicized the proposed rules that are described in both FAR 15.304 and DFARS 215.304 (agency implementionnof the FAR rule). The rules extend the consideration and evaluation of small business participation in the proposed contract to small business primes as well as to those firms who have otherwise been required to develop small business subcontracting plans. The DFARS publication of the proposed rule included a statement that it wasn’t considered to have significant administrative or economic impact on the small businesses that were newly required to develop and submit a small business participation plan. If so, then I would argue that it can be deduced that the rule will not have a significant economic or administrative impact on those large businesses, which already are required to make good faith efforts to plan for and provide opportunities for the various categories of small and small disadvantaged businesses to participate in the contract performance. It’s likely less impactful on the large businesses than it is on small business proposers. The SB firms weren’t previously required to submit evidence of efforts to provide opportunities for small and small disadvantaged businesses before award nor probably after award. Considering the above, I answered question number 1 “no”.
  15. joel hoffman

    Small Business Participation Plans

    Regarding question number 1: See, for instance, Fed Register Volume 63 No. 224/Friday November 20, 1998 Pages 64427-64429, the Interim rule, which was adopted as finalized without change. The rules under 215.314, including evaluating the extent of participation of small businesses and historically black colleges or universities and minority institutions in performance of the contract, were not expected to have a significant economic impact on substantial number of small entities within the meaning of the Regulatory Flexibility Impact Act, etc. (https://www.gpo.gov/fdsys/pkg/FR-1998-11-20/pdf/98-31039.pdf) FAC 97-07, in part (at https://www.acquisition.gov/sites/default/files/archives/loose_leaf/fac97-07.pdf) included this: Regarding questions 2 and 3: Nothing prohibits the KO from incorporating the Small Business Participation Plan into the contract - to make it enforceable. In fact, 215.304 discusses evaluating the extent to which a firm identifies and commits to use small businesses, etc. in the performance of the contract: How would you make it enforceable, when an offeror/proposer identifies and commits to use small businesses and/or specific small businesses in the performance of the contract? Note that the offeror isn't necessarily required to identify or commit to specific firms in its plan. For that matter, how do you make promises of good faith efforts to utilize small businesses under the Small Business Participation Plan mandatory? For instance, the Subcontracting Plan is supposed to be incorporated into and made a material part of the contract (See 19.705-5 (a)(4)). The government may evaluate proposals as stated below and may structure the contract to make the commitment enforceable: To me, a meaningful "commitment" involves more than flowery intentions stated in a plan. I would evaluate mandatory commitment(s) much higher than unenforceable intentions.
  16. joel hoffman

    Here we go again (maybe)

    I keep getting a certificate error for DCAA.mil from my iPhone
  17. joel hoffman

    Here we go again (maybe)

    No problem from my non- .mil/non- .gov address.
  18. Don , where did you determine that order level materials are only priced under time and materials orders? Are you saying that they can’t be included at a fixed price or in a fixed price order?
  19. Carl, Etal, i apologize for incorrectly using the term “domestic” to refer to either US made or eligible products from a participating country under Trade Agreements Act. I should have refreshed my memory. I wasn’t trying to limit allowable products to US made where TAA is applicable.
  20. I don’t think that you can find a domestic source for every replacement part
  21. If the parts are priced under a work order, what difference does it make to the contractor and what does the government say it wants? Or should I mind my own business and simply assume that this is a contract interpretation question?
  22. The law and regulations aren’t always logical. However, it would seem logical to me that the purpose of the contract is to inspect and service or repair equipmenI. If the equipment was originally “domestic”, then it ought to remain domestic after repairs or refurbishment. . If that equipment was originally purchased under the BAA and TAA, then supplying and installing replacement parts for that equipment ought to be consistent with the original equipment purchase. I’m assuming that the contract value is high enough for applicability of TAA. If the government is paying for the parts on a cost reimbursable basis, what is the issue? Price differences shouldn’t be a concern. If the parts being replaced were originally “domestic”, then they ought to remain domestic after repairs or refurbishment.
  23. joel hoffman

    Multi-year Service Contracts?

    Ok, can somebody please clarify if the great DoD Contracting Software in the Sky has a mandatory data element to identify that a service contract is a multi-year service contract? It would seem logical to me that the proponent for the legislation to provide the authority and the pilot program would certainly be able to determine what contracts are using the authority or are otherwise MYS contracts. Just curious . Edit: if not, then DoD should put out a data call, not require their contractor to. Just saying.
  24. joel hoffman

    Multi-year Service Contracts?

    Ok, thanks. By the way, I would think that there are WIFCON members and readers out there who are involved in multi year service contracting . Okay, readers, now you should know what DPAP is interested in learning.
  25. joel hoffman

    Multi-year Service Contracts?

    Okay - to clarify, you are not only looking for pilot program contracts exceeding five years, you are looking for any service contracts that are or should be specifically classified as multi-year service contracts. Is that correct? EDIT: as Bob has indicated, it isn’t clear from your posts the scope of what you are hired to study or who you are hired by. Apparently, DPAP.
×