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joel hoffman

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Everything posted by joel hoffman

  1. 'So, there ya are', as they say. At any rate, I'm guessing that DAU doesn't provide training on the policies and procedures, if any, to administer the current contract terms for subcontracting plans.
  2. Don, with respect to the above quote and to my question to you, I noticed that the clause at 52.219-9 (which was revised over 1 1/2 years ago) added sub-paragraphs (d) 12-15, as well as some other revisions. It would seem to me that these revisions, as well as the other steps that are referred to in the article at https://www.natlawreview.com/article/new-rule-finalizes-small-business-subcontracting-changes - the "government" is creating disincentives for contractors to act this way. FAR 19.708 (b) prescribes including the clause at 52.219-16, Liquidated Damages - Subcontracting Plan, in all solicitations and contracts containing the clause at 52.219-9, Small Business Subcontracting Plan, FAR 19.708(c)(1), allows the KO to include a subcontracting program incentive clause at 52.219-10. Don, what are some government created incentives that you referred to which are in conflict with these policies? Of course, the workforce would have to be aware of the revisions and would also have to supportive in practice for the policy to have any effect. I'm not aware of the extent of knowledge of the revisions. With respect to the extent of federal workforce support of the policies and procedures intended to help promote small business participation and treatment by primes, I have doubts...
  3. REA'n Maker posted on June 21: From Frankjon June 22:
  4. No, not necessarily. It does appear to me from some of the comments here that many government personnel may not be aware of the statutory changes or of the revised clause at 52.219-9. Don Mansfield, is DAU addressing in its teaching curricula for Small Business Subcontracting Programs attempts to increase the accountability of primes for what they say they are going to do in their bids or proposals (or associated subcontracting plans) ?
  5. Hope it helps you, 76fj40. Congress tends to respond to small business and subcontracting industry complaints. But they keep expecting bureaucrats who don’t have privity of contract with subs and don’t have all the facts concerning disputes or business relations between primes and subs, to police internal contractor team relations. In addition, many don’t understand the internal business operations or processes of the various businesses/contractors. They don’t have time to get involved in many internal contractor team affairs. Government acquisition personnel and project manager performancei evaluations are often based upon making awards and getting contracts completed, not necessarily upon the costs involved or on extent of harmony within a contractors’s team. In practice, the office that doesn’t bring issues to higher level management as long as the contract gets done are the favorites of those higher level managers. Consequently, they often overlook strict scrutiny of some administrative or non-technical contract requirements, taking a hands off approach. At least that’s my observation and experience within my organization from a field level, multi-District, Multi-Division and Command-Wide perspective. And it is apparent to me that service contracting contract administration is even more hands off than A/E and construction contracting from my involvement and from participating in this Forum site for many years.
  6. Darn, I didn’t read or forgot an earlier post of yours that made the contractor responsible for obtaining the applicable wage decision to establish menu prices. That will affect my post earlier with regard to a possible mutual mistake. I suggest that you get a lawyer to help you but I don’t think that the contractor can ignore a clear requirement to obtain and use the applicable wage rates, then claim that the government approved the menu prices that weren’t based upon the applicable wage rates .
  7. On the basis of what information? Cost or pricing data with calculation showing how the prices are determined?? You also didn’t answer my earlier questions from 4/5/2018...
  8. This may or may not be the same situation as in another current thread, where specific site concessions were to be arranged with the forest service’s reps at the site locations. If so, Both parties should have known that there must be an SCA Wage decision applicable to the negotiation of the specific site concession. It could be a mutual mistake in the formation of the site specific agreements. I don’t necessarily buy that the government could get away with being ignorant and negligent but not the concessionaire. I also assume that the government isn’t paying for the labor - the concessionaires fees or sales would probably be covering labor costs. That might make a big difference in the criteria for determining responsibility. Vern has advised in both threads that you consult a knowledgeable contracts attorney to advise you. I agree with him.
  9. As to the some of the generalized arguments here, such as big business is more efficient, lesser cost, that’s not necessarily true in all cases. The biggies priced themselves out of several source selections that I led. On some others, they were unaffordable or exorbitant in pricing modifications. And I have seen a fair share of large business firms go out of business or otherwise fail to complete construction projects and be replaced. Have dealt with several of the top ten construction companies who are no more. In one instance, I endured three years of total misery and near extortion by a top five Defense Contractor who thought they could branch into design and construction - buying up several successful design and construction companies. They were losing hundreds of millions of dollars on FFP contracts, which were contrary to the parent firm’s corporate culture, mentality and core business. They dumped that business off on another successful A/E/C firm, which caused that firm to soon declare Chaper Eleven bankruptcy, although they recovered. They sued the big aerospace firm that sold them the A/ E/C business for not disclosing the magnitude of losses on the big FFP projects. I don’t buy into the nation’s labor force practically having to work for one of those big businesses, either.
  10. How about this? https://www.natlawreview.com/article/new-rule-finalizes-small-business-subcontracting-changes The National Law Review article is dated as July 2016 and the latest clause 52.219-9, as of July 23, 2018, is dated Jan 2017 .https://www.ecfr.gov/cgi-bin/text-idx?SID=39ef558d62d2d8bfdbe19c63bf9feae0&mc=true&node=pt48.2.52&rgn=div5#se48.2.52_1219_69 I noticed that the date at the top of the page at the National Law Review website is July 25, 2018. I’m guessing that is related to the currency of the article under “45 New Articles” but I don’t know. It looks like more tools are available to the government in its oversight and enforcement role, if the KO and contract administrators are active and proactive and if the latest clause is in the prime contract. It might be toothier but is toothless if the government isn’t more active/proactive in its oversite role than in my prior experience. Other members are free to offer their opinions, especially the current 1102 community. For instance, see this recent discussion thread: There might be something newer concerning Subcontract Plans but that National Law Review article and that version of the Subcontracting Plan clause are what I found. See also where subs can discuss matters directly with the government. Good luck to you!
  11. Also- Will you probably have to certify the following as part of your SBIR certification? ”(10) During the performance of award, it will perform the applicable percentage of work unless a deviation from this requirement is approved in writing by the funding agreement officer (check the applicable line and fill in if needed):  SBIR Phase I: at least two-thirds (66 2/3%) of the research.  SBIR Phase II: at least half (50%) of the research.  Deviation approved in writing by the funding agreement officer: % (11) During performance of award, the research/research and development will be performed in the United States unless a deviation is approved in writing by the funding agreement officer. Yes No Waiver has been granted (12) During performance of award, the research/research and development will be performed at my facilities with my employees, except as otherwise indicated in the SBIR application and approved in the funding agreement. Yes No” Edit: The funding agreement program office should have the criteria available for determining compliance and considering waiver requests.
  12. To be as clear as possible, ”isn’t available” doesn’t necessarily mean “isn’t the lowest priced subcontract” available.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    However, it does not prohibit some type of subcontractor performance evaluation, either.
  19. 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.
  20. joel hoffman

    Pre-Award Protest - Subcontractor CPARS

    Good advice. If time permits, asking the agency first is a good idea here.
  21. 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.
  22. 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...
  23. joel hoffman

    Probability Problem #2

    I am sure that Hoffman won’t protest 😄
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