joel hoffman

Yes, “at least in theory”.

Yep. There are some advantages to personal services and similar type contracts. Among them are reduced retirement burdens, flexility in numbers of employees and relative speed and ease vs. the civil service hiring, promotion and relocation processes. The government employee retirement system doesn’t directly incur long term retirement pension burden/liability for non-civil servants. Temporary workers provide workload and assignment flexibility, vs. hiring and retaining permanent employees. One reason for (or one effect of) replacing CSRS with FERS was to make it easier for civil servants to move in and out of government employment. Using non-civil servants is a step beyond that. The civil service selection and hiring process is laborious, complicated, time consuming and costly, especially costly for relocations. It was much less burden and time consumption for me, as a supervisor, to use contract employees for special purposes and as augmentation for temporary assignments. There are some disadvantages, too…

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As I understand it, the LB sub wants G&A on the travel but doesn’t want the prime to know the rates. Therefore, they must be thinking of invoicing the contractor some type of lump sum amount for travel. The amount would be based upon the government reviewed, detailed travel costs plus G&A = the LS invoiced amount. This makes the government responsible for reviewing, verifying and approving (AKA auditing) the actual subcontractor travel, which is the prime’s responsibility. If the sub provided the prime the direct cost information to verify and approve, the prime will know what the difference in payment to the sub for the travel is (reflected in the total cost to the contract) vs. the direct travel costs.

Unfortunately, the government writers often neglect to write a mod or task order so that those other than the original participants can readily know what was understood by the original participants. I’ve often seen that over the years.

It won’t be “ambiguous”, if the TO formation process provides the context. You may have to look beyond the wording of the actual RFP.

The question still is what is the context of the table?. The TO-RFP should provide some answers. The task order ought to but might not say that it is “ incorporated”. IMO, you really need to find out what happened before “you were around”…

Which party generated the table of hours? Was this provided by the government in the task order proposal request or did you, as the contractor, propose it? It had to have come from somebody. If the government provided it in the TO-RFP, did the RFP describe what it was for? i find it difficult to believe that it just appeared in the task order without any context. If you originated it, somewhere in the task order it should probably be mentioned, if only as being incorporated. If the government generated it (or the content in it), it should have at least been described in the TO-RFP. There must have been some basis for pricing the task order proposal…

If the table of hours and rates by labor category is part of the contract, you could propose a change (contract modification), showing how it will not increase the cost and explaining how it will get the work done.

How did it work out Tzarina? 🤠

Totally agree. And I had a close working relationship with my attorneys.

Which created a contracting do-loop. Which comes first- the chicken or the egg?

Me_Box, in addition to what Vern said - which is spot on - the overall past performance rating would also take into consideration how recent and relevant the experience is to the instant project. One can be the best at what they do but if it isn’t very recent and/or relevant experience, the overall “past performance” rating might not be as strong as another [edit: solid] performer with more recent, relevant experience. By chance are you with DoD? The DoD source selection procedures combine experience and past performance under one “confidence assessment”.

Is this a contract for new effort or a follow on contract? If there is an existing contract, is there a clause requirement to offer first rights of refusal to current employees? Of course, nothing prevents a contractor from offering lower compensation to the current work force. If they decline to accept, then it can backfill with the proposed employees and compensation plan. .

I agree with ji. Perform the realism analysis and develop a probable estimated cost. Discuss with the offeror as he said. You might find out that the proposed rates might be realistic. Or not. If legal is saying that you must accept and consider the rates for the probable cost, then they are wrong. The proposed rates would be used in the award price but not necessarily for comparison and basis of selection, assuming that the solicitation includes cost realism analysis

Can you please elaborate? What is “sub-task order level”? What regulations are you referring to? What kind of contracts are you referring to? There is no context to your one sentence question… Thanks in advance.

For those wondering what kind of analysis and discernment are necessary to decide whether or not to apply FAR Part 19 to an foreign contract, I suggest a close reading of the Comments and FAR Council responses to the Final rule. The comments acknowledge some criteria and circumstances that would likely make it challenging, difficult, impractical or almost impossible to apply Part 19. In particular, DoD installations and activities in foreign countries often involve country to country agreements (e.g.,assistance agreements, Status of Forces Agreements, Treaties, etc.). We are foreign guests operating in others’ Home countries and communities. Our operations affect the local populations, business communities and work forces. Applying Set-asides that might affect or shutout local contractors, workforces , skilled labor, manufacturers, supplier sources and relationships should be considered. Logistics should be considered. Financing and currency factors must be considered. There was very good discussion of various constraints and hurdles to consider and overcome for construction projects, such as design standards, laws, ordinances, codes, materials, cultural issues, geography, environmental, means and methods, labor forces, suppliers and trade subcontractors, continuing responsibilities such as warranty support, etc. These risks, challenges and considerations are particularly applicable to any small business, especially to US small businesses and emerging small businesses attempting to operate in many foreign countries. If the acquisition team isn’t familiar with or able to assess such considerations, then they have no business imposing US Socioeconomic business policies and procedures in host nations.

If you are and have been proposing using the current rates for each entire task order, then it appears that your interpretation agrees with the current government interpretation.

Having worked overseas on two continents for 6 1/2 years and leading source selections for, negotiating contracts for and overseeing work In Central and South America for seven more years, I’m not in favor of using FAR 19 set-asides outside the US and it’s territories, etc.

HCAs and contracting officer chiefs can’t remove the flexibility if it contradicts a treaty or other country to country agreements, e.g., foreign assistance agreements, NATO, etc.

I don’t have a problem with the flexibility [it is discretionary], provided that the KO’s have sense enough to use it. I have a huge problem with the practicality of it and some of the responses and implications of those responses to the public comments.

It was interesting when a comment mentioned the inequity of not allowing local foreign owned small businesses in a foreign area from competing against small US based businesses in a FAR 19 set-aside in their own country. The Council essentially said that foreign owned businesses can apply to be classified as small businesses. ”b. Rule Excludes Small Foreign Entities Comment: A respondent commented that, since non-U.S. businesses are not considered “small,” applying small business size standards outside the United States excludes foreign entities and limits competition to U.S. companies only, contrary to CICA. Response: As explained in the response to the comment under category 10a, SBA's regulations allow “non-U.S. businesses” to be considered small business concerns for the purposes of FAR part 19 procurements if they meet the criteria at 13 CFR 121.105. The Councils note that CICA provides an exception that allows agencies to exclude from competition other than small businesses in furtherance of sections 9 and 15 of the Small Business Act (see 10 U.S.C. 2304(b)(2) and 41 U.S.C. 3303(b)).” Thus, we are now permitted (discretionary) to use set-asides to hire foreign owned small businesses. Awards to such firms would also count toward Small Business award “goals”… And if the foreign entity could meet the requirements as a Small Disadvantaged or other small business category… The Councils did recognize that overseas construction, A/E and many service contracts are subject to [many] considerations that are unique to the overseas environment. Thus the acquisition team needs to determine [use discretion] whether or not to set-aside such contracts. Is all that within the scope and Intent of Small Business Administration Part 19 Programs? Since when has the SBA and its programs decide to apply to foreign owned small businesses. And what is a minority or disadvantaged owned business entity in a foreign country anyway? Can qualifying foreign owned firms from any country compete in other countries under set-asides?

Maybe? But the employee must be awfully dedicated to take a three day suspension without pay* to make the point! And it would be Shame on CPSC to make an employee a scapegoat to send the message. *3/10 or 30% of a bi-weekly check, plus earned leave and retirement credit? (As an example of how the employees fringe could be affected, when I transferred from Germany back to the US or maybe from Saudi Arabia to Germany, the Europe Pay Office was on a one week different pay cycle from the other pay office. I was docked fifty percent of my earned leave and sick leave for transferring mid-pay cycle of Europe.)

Hmm, so you essentially propose using the current years rates for the entire task order, correct? There appears to be some apparent inconsistency or missing context to the scenario here…