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joel hoffman

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Posts posted by joel hoffman

  1. 33 minutes ago, ji20874 said:

    Sure, why not?  Several years ago, I simultaneously held an unlimited contracting officer's warrant in the Defense Department and an unlimited contracting officer's warrant in the Commerce Department, and awarded contracts under the jurisdiction of both departments.

     

    17 hours ago, lawyergirl said:

      By "serve at" I mean "works at".  Does this help?

    ji, did you work at two different Departments? That implies that you were simultaneously employed by two different Departments.

    Or were you employed by one Department but performed KO duties for the two different Departments?

  2. 17 hours ago, lawyergirl said:

    Hi there, thanks so much for your reply!  This is a recompete RFQ for work at a civil agency.  By "serve at" I mean "works at".  Does this help?

    I don’t think that one KO can work at more than one agency at a time. A KO, working at one agency, can award a contract or an order under a contract to support another agency or a contract that can be used by another agency.

    I’ve occasionally seen contracts that were transferred from one agency to another agency. I think that is rare. 

  3. 15 minutes ago, Sam101 said:

    B-421307

    Thanks, Sam. From that decision, in response to the original question:

    “While the solicitation in this case does not expressly explain how vendors who lacked relevant past performance would be evaluated, our decisions have generally concluded that vendors in FAR part 13 procurements who lack a record of recent, relevant past performance may not be treated favorably or unfavorably on that basis. See, e.g., Jacqueline R. Sims, dba JRS Staffing Services, B-409613, B-409613.2, June 16, 2014, 2014 CPD ¶ 181 at 4-5 (concluding that an agency is not permitted to evaluate a firm’s lack of relevant past performance either favorably or unfavorably in a FAR part 13 procurement, even in the absence of solicitation language to that effect); see also SSI Tech., Inc., B-412765.2, July 13, 2016, 2016 CPD ¶ 184 at 5-6.”

    This is consistent with my post above, citing applicable law that doesn’t limit the requirement to Part 15 acquisitions or procedures.

  4. Here is the Title 41 US Code coverage for past performance and evaluation of same:

    “41 U.S. Code § 1126 - Policy regarding consideration of contractor past performance

    (a) Guidance.—The Administrator shall prescribe for executive agencies guidance regarding consideration of the past contract performance of offerors in awarding contracts. The guidance shall include—

    (1) standards for evaluating past performance with respect to cost (when appropriate), schedule, compliance with technical or functional specifications, and other relevant performance factors that facilitate consistent and fair evaluation by all executive agencies;

    (2) policies for the collection and maintenance of information on past contract performance that, to the maximum extent practicable, facilitate automated collection, maintenance, and dissemination of information and provide for ease of collection, maintenance, and dissemination of information by other methods, as necessary;

    (3) policies for ensuring that—

    (A) offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, other departments and agencies of the Federal Government, agencies of State and local governments, and commercial customers; and

    (B) the information submitted by offerors is considered; and

    (4) the period for which information on past performance of offerors may be maintained and considered.

    (b) Information Not Available.—

    If there is no information on past contract performance of an offeror or the information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance.

    (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3689.)”

    Notice that it doesn’t distinguish between Parts 15, 12 and 13 contract awards or evaluations of past contract performance.

    And notice that it doesn’t mention or extend these requirements to relevant “experience”.

    Edit: The degree of relevance in evaluating confidence in future performance can consider the amount and relevance of experience associated with  a past performance record. 

    Edit: The term ”Neutral Rating” was superseded many years ago by the “may not be evaluated favorably or unfavorably” language.

  5. Are you referring to the performance record (how well the firms performed)?

    Or are you referring to previous experience performing relevant efforts?

    “Past performance” with respect to FAR 15.305 refers to the record of how well the firm performed ( the quality of performance) as distinguished from the amount of experience a firm has in performing the same or similar work. See 42.15.

    The courts and boards have upheld the government’s right to require a minimum, reasonable amount of previous, relevant experience where deemed necessary and/or to use comparative ratings for the amount of experience.

    Try this Google Search: “wifcon experience vs. past performance” for instance.

  6. 39 minutes ago, lawyergirl said:

    Does anyone know if it's typical for a panel of evaluators on a particular federal agency's RFQ (Agency A) to be partially made up of personnel that work at other federal agencies (Agency B and Agency C)?

    It depends upon the type of acquisition, if the acquisition is an action under an existing contract or if this is for a new contract, which agency is awarding the contract or action under an existing contract and who the ultimate user agency is.

    Can you provide any clarification?

    42 minutes ago, lawyergirl said:

    Also, can a CO serve at more than one agency at a time?

    Please clarify what you mean by “serve at”. 

  7. For routine acquisitions, the Air Force has preferred using price and “past performance” as evaluation factors. The “past performance” incorporates recent, relevant experience as evaluation criteria.

    13 hours ago, formerfed said:

    Years ago, there were some saying experience and past performance might be all that’s needed for many acquisitions.  One very convincing advocate felt past performance done the easy way - sending surveys to offeror references (or “friends of the offeror) and use of CPARS was mostly a waster of time.  He went on saying the contracting team needs to find instances of offeror performance and personally question those customers to get meaningful data.

    I agree with the “very convincing advocate” that “the east way[s] of having the contractor contact references or the government sending the survey to references is mostly a waste of time” and ineffective. 

    My preference was to use standardized forms for prime, key subs (and for design-build, the design firm’s) project experience and having them provide customer references. We reserved the right to contact and interview the references, using a standardized question format to verify the claimed experience and claimed past performance quality for those recent, relevant projects..

    We also used CPARs as a reference and reserved the right to consider other sources, including personal knowledge of project experience and performance.

    i hate requiring references to fill out and return the information especially when it was repetitive for multiple acquisitions.

    I found the best information was gained by TELEPHONICALLY INTERVIEWING the references. Never had any protests concerning such reference INTERVIEWS.

    We kept the written record of interviews for future project SS references where necessary and applicable.

    Of course, using documented, TELEPHONIC, ORAL COMMUNICATIONS isn’t “the easy way”…

  8. @Seeking2Award, what didn’t you understand in reading this earlier thread at 

     

    You said that the schedule extension would not benefit the government. This implies that there may be some. Additional cost, undesirable delays or other damages to the government. Does the KO simply want to waive the default and establish a new delivery date? Or does the KO want to obtain some consideration for extending the delivery date due to damages or other impact to the government for the delay?

    EDIT: The OP posted the following  comment while I was posting this comment. Original. Post is resolved.

  9. The KO should send the technical portions of the winning proposal applicable to contract performance to the contract admin office/team along with the consensus evaluation minus any ratings.

    This is for construction**, design-build construction** and certain service contracts.

    In addition, we identified any proposed betterments which exceeded the solicitation requirements and which were accepted and incorporated at award.**

    —————————————————

    Footnotes:

    **We normally incorporate applicable portions of the technical proposal into the contract award for construction and design-build contracts. It usually corresponds to proposed key personnel, specific proposed material or equipment, building systems etc. for construction. For D-B, it also includes proposed design features.

    There was an order of precedence clause. Not the FAR Order of Precedence clause, which is only applicable to and appropriate for the UCF format.

    The Army Corps of Engineers uses the Construction Specification Institute, CSI format for construction and design-build construction contracts..

    The CSI format is more suitable for Federal construction and design-build construction contracting than the UCF.

    The UCF is suitable for service and supply contracting.

  10. On 3/1/2024 at 1:22 PM, Voyager said:

    I think Joel is just sensing that a lack of government-unique terms and conditions does not mean the government, as an enormous buyer entering a commercial market, cannot leverage its purchasing power to get terms and conditions favorable to its shareholders (taxpayers).  That has always been the focus of DOD in the post-FY16 NDAA era.  One of the main precepts they train is "Be a Prudent Businessperson", along with "Understand the Competitive Market Conditions" and "Have Reasonable Knowledge of the Marketplace".

    Yes- and the government and some commercial customers may have different quality, cost, budget and schedule goals and objectives than other commercial customers.

    Many commercial clients will tradeoff higher initial cost (and probably not be overly concerned about travel costs) vs. shorter time to start or resume production, get their products to market, and/or quality and reliability, for instance. Return on investment.

    Many commercial customers often have continuing relationships with their vendors, I.e., little or no competition involved. True best value…

  11. On 3/1/2024 at 12:38 PM, Retreadfed said:

    Joel, Z said the contract was for commercial services.  If the contract is a T&M contract, it is governed by FAR 52.212-4 Alt I which does not incorporate the cost principles from FAR Part 31.  

    Retreadfed, I agree that 52.212-4 Alt I does not incorporate the cost principles from FAR Part 31.

    Z said that “travel [is] a reimbursable ODC on a T&M Line Item” in a fixed price contract. And Z said “ Business Class jumped [off] the screen when the CO looked at the proposal's travel cost estimates”. In other words, the KO analyzed the basis for and/or amount of the proposed flying cost.

    That constitutes cost analysis, which is addressed in subpart 15.404 and is applicable when requiring and/or evaluating data other than certified cost or pricing for commercial services in 15.403.

    Per 31.103 (a),  The cost principles and procedures in  subpart  31.2 and agency supplements shall be used in pricing negotiated services contracts whenever cost analysis is performed as required by 15.404-1(c)” [“Cost analysis”].

    As I mentioned above, 31.103 (b) (ii),  addresses using the cost principles and applicable procedures in Part 31 for cost reimbursable aspects of time and materials pricing.   

     

     

  12. 16 hours ago, Salus said:

    Some of the pertinent information that would have been more easier to find had the ownership information been included was that the small business member of the JV was founded by a director level employee and another senior manager of the large business while they were still employed by the large business, which would have raised a flag regarding potential affiliation.

    Have you tried contacting the SBA? If you think that there is evidence of misrepresentation of small business status involved in a contract award, I would think that you could discuss it with the SBA and/or the contracting agency, without filing a protest..

    it See for instance, this link from the WIFCON.com homepage: https://www.justice.gov/usao-edva/pr/government-contractors-agree-pay-39-million-resolve-claims-misrepresenting-women-owned

    i googled “Department of Justice misrepresentation of small business status”.  This was was one of several hit that came up

    https://www.insidegovernmentcontracts.com/2022/06/doj-settlement-underscores-the-significance-of-incorrect-small-business-representations/

    Here is another one referring to the SBA’s Code of Federal Regulations at 13 CFR 121.108:

    https://www.law.cornell.edu/cfr/text/13/121.108

  13. 3 hours ago, Retreadfed said:

    Vern, how would your system handle those rare situations where the SSA acts unethically or criminally such as in the Darlene Dryun case or the situation that occurred years ago at DLA's Personnel Support Center in Philadelphia where the CO was demanding kickbacks from the winning contractor on competitive procurements?  In the former case, as I recall there was no evidence that Boeing colluded with Darlene, while in the DPSC situation, the contractors clearly did collude with the CO.

    @Retreadfed, you don’t have to protest in the event of such criminal activity.

  14. On 2/29/2024 at 12:03 PM, Retreadfed said:

      In the former case, as I recall there was no evidence that Boeing colluded with Darlene,

    Retreadfed, there was evidence…

    Michael Sears — chief financial officer at Boeing. Negotiated Druyun’s post-retirement employment with Boeing. Convicted for role in the scandal, served a four-month prison sentence.

    Phil Condit — chief executive officer of Boeing. Forced to resign as a result of the deal.

    See https://sites.tufts.edu/corruptarmsdeals/the-boeing-tanker-case/#:~:text=The case stemmed from a,Department of Defense (DOD).

  15. 4 hours ago, General.Zhukov said:

    when the CO looked at the proposal's travel cost estimates, and was never going to get into the contract. 

    Thanks for the clarifications, General Z. So, some costs were indeed analyzed (“cost analysis”) for the reimbursable aspects of the Time and Materials portion.

    See 31.103 Contracts with commercial organizations.

    “…(b) In addition, the contracting officer shall incorporate the cost principles and procedures in subpart  31.2 and agency supplements by reference in contracts with commercial organizations as the basis for-

    (1) Determining reimbursable costs under-

    …(ii) The cost-reimbursement portion of time-and-materials contracts except when material is priced on a basis other than at cost (see  16.601(c)(3));”

    Edit: However, see also 12.301:

    “…(d) Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial products or commercial services, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial products or commercial services.“

    But also:

    12.213 Other commercial practices.

    “It is a common practice in the commercial marketplace for both the buyer and seller to propose terms and conditions written from their particular perspectives. The terms and conditions prescribed in this part seek to balance the interests of both the buyer and seller. These terms and conditions are generally appropriate for use in a wide range of acquisitions. However, market research may indicate other commercial practices that are appropriate for the acquisition of the particular item. These practices should be considered for incorporation into the solicitation and contract if the contracting officer determines them appropriate in concluding a business arrangement satisfactory to both parties and not otherwise precluded by law or Executive order.

  16. On 2/25/2024 at 7:35 AM, C Culham said:

    Yes!

    I hope no one uses this statement as market research as I would suggest it really depends on the company, and even for a individual company it might depend on the employee and purpose of travel.  

    it also depends upon who the customer is. A commercial customer may have other priorities than quibbling about the cost of travel and/or may not have strict travel protocols/policies.

    Many commercial customers place priorities on getting their products and services to the market with less emphasis on the initial cost of associated services or development costs. There may or may not be competition involved in providing services to non-government, commercial customers.

    The government generally does have policies and is mindful of travel costs. Has been at least since 1980, when I joined the Civil Service. Travel costs comprise a major Federal cost.

    The federal government isn’t necessarily bound to adopt every commercial practice, as some here have suggested.

    It is important to consider some principles regarding reasonableness of costs or prices, including commercial products and services. Such as the definition of commercial services in 2.101 and whether they were priced competitively,  31.201-3 Determining reasonableness and 15.4 regarding commercial services.

    In addition, many companies have direct,  overhead or G&A rates that may include costs that are not necessarily illegal, but unallowable on Government contracts.

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