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joel hoffman

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Posts posted by joel hoffman

  1. 17 hours ago, Vern Edwards said:

    then I think that the government could refuse to pay only for the ones for which performance was unacceptable.  How the parties would come up with the value of each task is something they would have to work out.

    I agree, assuming (per the described scenario) that it is too late to perform those tasks now. 

  2. I disagree, WifWaf. If the contractor fails to perform or adequately perform services and it is not possible to re-perform or perform the services, the government doesn’t have to pay for the non-performed services, assuming that the following clause is in the contract.

    “52.246-4 Inspection of Services - Fixed-Price.

    As prescribed in 46.304, insert the following clause:

    Inspection of Services - Fixed-Price (AUG 1996)

    (a) Definitions.Services, as used in this clause, includes services performed, workmanship, and materialfurnished or utilized in the performance of services.

    (b) The Contractor shall provideand maintain an inspection system acceptable to the Government covering the services under this contract. Complete records of all inspection  work performed by the Contractor shall be maintained and  made available to the Government during contract performance and for as long afterwards as the contract requires.

    (c) The Government has the right to inspect and test all services called for by the contract, to the extent practicable at all times and places during the term of the contract. The Government shall perform inspections and tests in a manner that will not unduly delay the work.

    (d) If the Government performs inspections or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties.

    (e) If any of the services do not conform with contract requirements, the Government may require the Contractor to perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in services cannot be corrected by reperformance, the Government may (1) require the Contractor to take necessary action to ensure that future performance conforms to contract requirements and (2) reduce the contract price to reflect the reduced value of the services performed.

    (f) If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with contract requirements, the Government may (1) by contract or otherwise, perform the services and charge to the Contractor any cost incurred by the Government that is directly related to the performance of such service or (2) terminate the contract for default.”

    The question that begs to be asked is, what did the COR do to assure that the contractor was performing the required services, since he/she knew that they didn’t perform all the services?

    The government QA/CA team should raise the issue to the contractor and COR after the first incidence of non-performance. There were multiple incidents and repeated incidents of non-attendance at IPT meetings.

    One needs to know and use the contract administration tools available.


  3. 7 hours ago, Vern Edwards said:

    As contracting offices award ever more support services contracts so the government can avoid hiring more civil servants, they are functioning as personnel offices of sorts, and they are looking for ever more adaptable contractual devices…

    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…

  4. 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.



  5. 6 minutes ago, Former_DCAA said:

    I was not around at the time, but my understanding is that it's directly from our proposal to the gov't and they just copy and pasted it into the Task Order. 

    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”…

  6. 59 minutes ago, Former_DCAA said:

    I agree, this is my first time seeing a table of hours by category in the task order. 

     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…

    1 hour ago, Former_DCAA said:

    It's strange, its just hanging out there on its own page with no reference to it. 

  7. 12 hours ago, Former_DCAA said:

    On a T&M task order, where a table of hours and rates by labor category is incorporated into the task order, what is the procedure for transferring hours between labor categories (while still staying within the overall budget)? The project was started in 2020 and due to turnover, the hours mix will be different, but the overall cost will remain the same and the work will get done. 


    However, the contracting officer is giving us a hard time about the change, without pointing to any guidance. I've reviewed the IDIQ, task order and FAR 52.243-3 and don't see reference to hours changes.



    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. 

  8. 51 minutes ago, here_2_help said:


    I've always found that the best approach is to make my work product as close to perfect as I can get it, prior to review by another. Do I always meet expectations in that regard? No. But I strive for it.

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

  9. 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”. 

  10. 22 hours ago, RunDMC said:

    Yes, CR Analysis for Competitive cost-reimbursement contract.  Legal is saying we have to accept the rates as proposed because they provided Payroll SS or LOI's.  

    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. . 

  11. I agree with ji. 

    1 hour ago, RunDMC said:

    Legal is saying we have to accept the rates as proposed because they provided Payroll SS or LOI's. 

    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 

  12. 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.

  13. 8 hours ago, ji20874 said:

    Joel, No one here has suggested contradicting treaties or other country-to-country agreements, so your posting seems non-sequitur.  I'm all in favor of careful use of available flexibility -- aren't you?

    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. 

  14. 4 hours ago, ji20874 said:

    There are a lot of areas where the FAR provides flexibility, but where contracting officers should be careful in using that flexibility.  I hope HCAs and contracting officer chiefs will help guide contracting officers in the careful use of the available flexibility, rather than removing the flexibility.

    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.

  15. 20 minutes ago, ji20874 said:

    I am okay with the response in the Federal Register.  The rule is written to provide maximum flexibility to contracting officers.  As I have previously shared, I am okay with that flexibility, but I now that many here are not okay with it.

    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.

  16. 30 minutes ago, Don Mansfield said:

    This has been all cleared up by the FAR Councils. From today's Federal Register


    So we all know what this means now, right?

    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? 


  17. 16 minutes ago, Vern Edwards said:

    Could it be possible that the CPSC is sending a message to Congress about shutting down the government?

    The employee might be in on it.

    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.)

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