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joel hoffman

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Blog Comments posted by joel hoffman

  1. Sometimes, industry lobbying groups propose legislation concerning their specific areas of interest, which is poorly conceived or drafted, without a full understanding of the bill's impact or ramifications.  The Congressional staffers often don't understand the subject matter, either.  When the DoD and/or civilian agencies' so called subject matter experts weigh in during coordination reviews of the legislation, it sometimes backfires on the industry originators.  

    A couple of years ago, industry initiated legislation intended to limit the use of the "One Step, Turnkey Design-Build" method in 10 USC 2862.  However, after the DoD's engineering and construction agencies responded to the draft language, it ended up expanding the allowed use of One Step D-B for more types of projects beyond new construction, such as repair and renovation projects.

    Recently, industry D-B lobbyists have been pushing again to limit the dollar limits of projects that could use the one-step method.  However, they are proposing to impose the limits under Title 41, which doesn't even authorize the use of the one-step D-B method.  By adding the limitation language under Title 41, it would effectively introduce its use under that Title!! When I asked one of the staff members of the industry coalition group proposing the legislation why it was drafted for application under Title 41, he said that the coalition had been working with congressional members and staff under one of the Civilian committees or subcommittees, rather than the Military side, where the authority for one step design-build is specifically authorized.  One or more agencies, such as the Coast Guard have been able to obtain specific authorization for One Step D-B under a Title or Titles other than Title 41 but it hasn't been mentioned under that general Title before.

    In another instance, the NDAA for FY 2018 included language under Section 823, "Exemption from design-build selection procedures".  It amended section 2305a of Title 10 to exempt solicitations issued pursuant to an indefinite delivery/indefinite quantity contract from the statutory limitation on the number of offerors that may proceed to step two of the procurement selection process when that D-B process is used.  It was drafted by a House Committee staffer who used to work for one of the Military Services' engineering and construction agencies.   (Sorry about the Font change)

  2. Requiring PPQ's is the lazy way out for the government procurement office in my opinion.  Having been bombarded by requests for PPQs, even for the same information on the same firm for other source selections, that is ridiculous. Yes, the FAR should be changed. However, the change should be a requirement for a repository of those questionnaires or to use the past performance rating assessments that are already required and are filed, in lieu of a separate PPQ. 

    We used to provide a form for providing relevant experience, including any performance rating received by the owner and a reference to contact in the event that we needed to verify information.  We reserved the right to contact the reference but did not commit to, if we already knew the information  we also used the contractor ratings in our database.  The offeror could submit rating information from non-government projects.  

    It is stupid to keep requesting the same information time and again from previous customers.

    Worked fine  


  3. Here are some quotes that I had previously copied from some GAO decisions.


    Matter of: North Wind, Inc.; Earth Resources Technology, Inc.

    File: B-404880.4; B-404880.5; B-404880.6

    Date: November 4, 2011

    …In summary, while we note that NASA downgraded Navarro's proposal because it did not specifically state [REDACTED], NASA's willingness to essentially waive the BOE requirement for Navarro, without disclosing this willingness to all of the offerors and providing them an opportunity to submit revised proposals, was prejudicial to the offerors who provided the required BOEs within the page limitation imposed on the mission suitability proposals. See Electronic Design, Inc., at 10-11 D&M General Contracting, Inc., B-252282.4, Aug. 19, 1993, 93-2 CPD para. 104 at 3. In this regard, it is a fundamental principle of government procurement that competition must be conducted on an equal basis; that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals. Electronic Design, Inc., at 10."


    SeaBox, Inc. , B-405711.2, Mar. 19, 2012, 2012 CPD ¶ 116. The fundamental principle of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria, is equally applicable to simplified acquisitions.

    GAO will review allegations of improper agency actions in conducting simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition and with the terms of the solicitation.


    It is a fundamental principle of government procurement that competition must be conducted on an equal basis; that is, offerors must be treated equally and provided with a common basis for the preparation of their proposals. Systems Mgmt., Inc.; Qualimetrics, Inc., B-287032.3, B-287032.4, Apr. 16, 2001, 2001 CPD ¶ 85 at 8. When, either before or after receipt of proposals, the government changes or relaxes its requirements, it must issue an amendment to notify all offerors of the changed requirements and give them an opportunity to respond. Diebold, Inc., B-404823, June 2, 2011, 2011 CPD ¶ 117 at 4; Systems Mgmt., Inc.; Qualimetrics, Inc., supra; see Cardkey Sys., B-220660, Feb. 11, 1986, 86-1 CPD ¶ 154 at 2 (If it becomes apparent that the contract being negotiated differs significantly from the requirements stated in the RFP, the contracting agency must amend the RFP or, at the least, advise offerors of the change during discussions and seek new offers.) We will sustain a protest where an agency, without issuing a written amendment, materially alters the solicitation’s requirements to the protester’s prejudice. See Systems Mgmt., Inc.; Qualimetrics, Inc., supra

  4. Hi, Joel!

    You think that spot checks are OK and I agree with you.

    The oversight regime thinks that spot checks are not OK. They could very well be correct- I just don't understand why because they do spot-checks themselves. I don't know their business well enough to criticize too strongly, I just never understood this discrepancy.

    (However, I part ways with you a little on self-certification. Unwise or not, we rely on the information they provide in their reps and certs like size status.)

    Apso, i was referring to government quality assurance concerning BAA and related Legislation.

    Before coming to work for the Federal government,I learned from my boss, who owned an engineering consulting firm, never to trust or simply rely on self-certifications from contractors or from suppliers. He wouldn't accept any certification from "sales engineers" or "sales departments". He required a certification to be signed by an an official who was responsible for engineering or the manufacturing of a product. To be frank, he said that he "distrusted" (he used stronger language) sales engineers and the like. That was 37 years ago. I found his "concerns" to be well founded.

    A very good Chief Executive once said "Trust but verify."

  5. Don't put requirements in contracts that you don't intend to enforce or if you don't iintend to perform a quality assurance role, to some extent - whether that be spot checks for compliance or 100% verification or something else.

    Simply looking the other way, relying on certifications or other promises or implied compliance is unwise - in my estimation.

  6. Bob, your article jogged my memory concerning government contracts with ( I think), John Ericsson for Monitor Class ironclads, later during the Civil War. As I recall, the terms were rather draconian in some respects. I think the article was in "the American Heritage of Invention and Technology Magazine that I subscribed to for a long time. After reading your article, I looked up some really interesting stories about Ericsson and the Monitor. Although there are conflicting dates and timeframes involved, the Monitor was built in response to spy leaks from loyalists working in the shipyard that was converting the salvaged hull of the USS Merrimack info the ironclad steamer gunboat CSS Virginia during the summer of 1861. The USS Monitor story is very interesting. The actual construction period was very short, depending upon which source one reads. The design was so radical that the terms of the contract included a clause that essentially required perfect performance or zero pay. But the U.S. was facing probable Naval Blockade disaster that could have allowed the Confederate Navy to directly attack Washington DC. Times were extremely tenuous for the Union during this period...

    Thanks for your article.

  7. Relevancy can be considered in both factors. Check out the DoD two step procedures for evaluating past performance. As part of the first step, the government determines the relevancy of past experience to the instant task or contract scope. In the second step, in evaluation of past performance information, they assess the level of "confidence" that the firm will successfully complete the contract. Past performance on projects with more relevance to the instant project are weighted more than those with less relevance.

    Thus a fantastic baker may not necessarily make a fantastic ship builder in a ship building contract.

    Project experience should still be a separate factor.

  8. Perhaps the most interesting term is one I elected not to use, "procuring contracting officer" (PCO), which appears only once in the FAR (i.e., FAR 3.104-4(d)(1)(I). That makes it one instance out of 5,465. According to FAR 2.101, the correct term is "contracting officer," unless you need to specify either "Administrative contracting officer (ACO)" or "Termination contracting officer (TCO)."

    Procuring Contracting Officer is defined in the DAU Glossary of Defense Acquisition Acronyms and Terms and is used in the DoD Procedures, Guidance and Information in several instances and in numerous Defense Agency supplements or other publications. Without taking the time to research my old DFARS, I'd venture to say that the PGI language was probably in DFARS before they moved it to PGI. (Jan1, 1997 DFARS at 204.201 uses it, for instance).

  9. Bob, thanks for fixing the link I tried to send you a message to let you know but your profile says you cant accept any more messages. At any rate, I wasn't trying to critique, just let you know that the link wasn't working. I figured that something had changed or was broke at the web site.

    Please also note that the link to the Blog on the WIFCON Home Page refers to "A little Christian Doctrine for you", even though the latest article is the above, not the Christian Doctrine. Keep up the good work! Thanks.

  10. Bob, I can't get the link at Thomas F. Neenan, as Trustee of the Thomas F. Neenan, Sr., Revocable Trust, v. U. S., No. 11-733C, August 22, 2013, to work.

    I'm getting the following :

    "Page Not Found

    Sorry! The page you were looking for no longer exists. We redesigned our site and many of the pages have changed.

    Please visit our Website and Technical Issues page for more information on about the United States of Federal Claims website, or use the search box on the left side to locate the webpage that you were linked too."

  11. Bob, WIFCON.com has been my home page since you you volunteered to offer a forum after an old DoD forum site disappeared or notified that it was going to disappear. I check the home page every morning, then my email - sometimes the other way around. But WIFCON has always been the first Internet site I go to. Generally scan the Home page for news and good stuff then hit the Forum button. You have ammassed a wealth of daily news, data and contracting knowledge at WIFCON.com. At this point in my life, WIFCON is the primary and one of only a few sites I still go to. I'm addicted.

    We haven't always agreed on everything. But this is STILL the best site to keep up with federal contracting news and issues. You are fantastic and I thank you from the bottom of my heart. As another 64 year old, I applaud your continued dedication to WIFCON and your self-less service to our Nation. Thanks again, Bob.

  12. vecchia, the Army has been using this pricing scheme for at least 25 years for Job Order Contracting ("JOC" contracts). And JOC contractors have been complaining about it for almost that long. There are some provisions for pricing non-covered work, which contractors have also tried to maximize the use of. In addition, I'm not positive but the contractors often but not always propose the quantities of unit priced work to be performed. You can do a search under "army job order contracting guide". At one site you can view a video that a friend of mine at USACE made back in 1987. It is mostly still applicable today.

    Someone told me last week that one of my old USACE organizations is using a similar method to contract for ID/IQ's for the Air Force, using the Means Estimating Guides instead of the Army's source estimating book. I think that the USAF also uses Means for their SABRE contracts. I didn't look it up this afternoon to verify. Busy...

  13. Bob, I want to say that I really appreciate you and your efforts over the years. You seem to be uniquely qualified and dedicated to develop and maintain this outstanding site. As I have told many folks, if you are involved with federal contracting, this ought to be your Homepage. I know that I have complained to you several times over the years, but I applaud you and appreciate the high quality of the site! Happy Sails! Joel

  14. Bob, in my latest "Consumer Reports" magazine, in the "Selling It" monthly feature, there was a report of a firm that offers some type of rebate for a high customer survey score.

    My suggestion to you is to respond truthfully to the surveys, so that these firms or persons don't fool themselves. Make them EARN the high satisfaction survey scores. If you aren't totally satisfied, maybe the persons need replacing by someone who really wants a job and who will do what it takes to satisfy customers, so that they can keep it.

  15. Don,

    Why not add a subpagraph (iv) to FAR 15.403-4(a)(1) something similar to:

    "?Unless an exception applies, cost or pricing data are required before accomplishing any of the following actions expected to exceed the current threshold or, for existing contracts, the threshold specified in the contract:

    "(iv) The issance of a task or delivery order under an indefinite-delivery, indefinite quantity contract, where the price is negotiated."

    Or better yet, add the clarification to (i):

    "(i) The award of any negotiated contract, including task or delivery orders under indefinite-delivery/indefinite-quantity contracts (except for undefinitized actions such as letter contracts)."

    I realize that the existing language may be based upon the TINA statutory language, but why can't the FAR council add clarifying language, assuming that the courts and boards "commonly understand" that task and delivery orders are considered to be contracts for this specific purpose?

    I dont think that it would be wise to simply directly add task and delivery orders to the definition of a "contract" at 2.101, because there are instances where the base contract already covers or complies with certain FAR requirements applicable to "contracts", that dont have to be repeated each time a task or delivery order is issued.

  16. For five years as a military officer, four years in private practice, 27 years as a government civilian employee, and now as a rehired annuitant for the past 2 1/12 years, having been involved involved in acquisition and federal contract administration, I sought to learn beyond what the regulations say. Try to find out the background of them, how they stand up under caselaw and other challenges, how they are applied, how to effect change, etc.

    If an organization can spend millions or even hundreds of thousands of dollars on acquisition, it can afford to purchase certain basic tools and references for continuous learning by the acquisition staff. The staff should take advantage of subscriptions and reference books, such as the various "Nash and Cibinic" books, free Internet sites, such as Claims Courts, Appeals Courts, Boards of Contract Appeals, Nash and Cibinic Report, Federal contracting periodicals, professional organizations, etc. I also personally bought engineering and acquisition books and subscriptions over the years. I bought many books as a relatively poor up and coming engineer with a family to support. Anyone who simply relies upon the Federal Acquisition regulations and supplements without aspiring to obtain and use other references and sources is intellectually lazy. Expand your horizons and insist that your agency subscribe to as many periodicals and professional pubs as possible. Use the Internet - it is superior to the sources I had while climbing the ladder...

  17. Vern, I personally think that Congress overlooked the distinction between past performance and extent of experience, when drafting the legislation. It appeared that they wanted new companies to not be shut out of competition from my past reading of the background of the legislation.

    However, the FAR clearly distinguishes between PP and extent of experience by describing PP as it relates to the quality of experience, not the extent of experience. Since Congress used the term in the legislation as already defined, it has effectively distinguished past performance from extent of experience.