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joel hoffman

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Posts posted by joel hoffman

  1. 4 hours ago, ji20874 said:

    If I contract for a locksmith to come into a Government office and install or repair a lock on a Government-owned door, or on several doors, or a copier repairman to repair a Government-owned copier, or several copiers, with the contractor responsible for providing all labor and materials, I’m not going to classify all the doors or the copier as GFP.  Others here might — different strokes for different folks.

    Agreed. The doors and copiers are government property but are not transferred to the contractors as government furnished property. 

  2. 16 hours ago, Daisy DuBose said:

    I am preparing a solicitation with four year option.  There are two types of funding associated with each CLIN.  There are 4 CLINs.

    How do I set up the CLINs and Sub-Clins for the base and the 4 option years?

    This is what I have, but I am not sure it is correct.

    Base year

    CLIN

    00001

    0001AA

    0001AB

    00002

    0002AA

    0002AB

    00003

    0003AA

    0003AB

    00004

    0004AA

    0004AB

    Option Year 1

    00005

    0005AA

    0005AB

    00006

    0006AA

    0006AB

    00007

    0007AA

    0007AB

    00008

    0008AA

    0008AB

    I proceeded with the remaining option years the same as above.

    Is this correct?

    Daisy DuBose

     

    Bob and Daisy,  I think that this post is under the wrong thread.

  3. Neil, there are various types of government property furnished to contractors. Often it is materials to be incorporated into a product, facility, equipment, etc. or otherwise consumed by the contractor.

    Other times it may be something that is turned over for repairs, modifications, re-build, etc. then returned to the government. 

    I’m simply saying that I don’t think that all GFP is removed from the government’s property records and inventory, such as the Oshkosh Snow removal equipment and perhaps a wing to an aircraft being repaired or modified. 

    I don’t think that the location of the contract work matters for purposes of retainage on the DoD’s property records. I’m not familiar with the APSR though. 

  4. The Air Force Strategic Air Command had  hundreds of large Oshkosh snow plows and Snow blowers on heavy trucks. They had contracts with Oshkosh Truck company to do depot level complete overhauls/rebuilds after 10 years or probably more of service. AF would ship them to the factory at Oshkosh, WS and they would come back, refreshed and updated, with new fleet numbering on the cab  (the prefix year was updated but truck retained same fleet number). 

    ji, are you saying that the Air Force removed each vehicle from its property records while it was in the Factory for rebuild? 

    I don’t think so. Not a logistician or property specialist but I’m pretty sure that they were always on the USAF property books and part of the Air Force Strategic Air Command’s inventory. 

    The fleet at KI Sawyer AFB had almost 60 Oshkosh trucks in its fleet. Biggest in the AF to my knowledge. They ran 16-24 hours per day on a three shift operation in the winter time (November into May) . 

  5. 20 minutes ago, MAY-D-FAR-B-WIT-U said:

    ji20874,

    would you need a D&F for this type of contract per FAR 16.401(d)?

    ji’s  approach may be more practical than an award fee where the contract is dirty enough to have other causes for delay. Then, when other impacts arise it could delay the contractually required completion date that you pick, you can effectively accelerate the contractor by paying them mor  during settlement of the various modifications  e not to be delayed

  6. You can use FFP contract with an early completion award fee incentive  (for other than military construction).

    There is a risk however, that if contractor encounters delays during performance, it will try to show that it would have completed early, thus is owed the award fee anyway. 

  7. 22 hours ago, Supra 1 said:

    If contract includes a concurrent delay provision (only allowing a time extension, but no money for concurrent delay), and the Govt. is found to have provided defective specifications that cause delay (and at some point after initial breach by Govt for defective specification, contractor causes some delay dealing with the defective specification), does the Spearin Doctrine trump the concurrent delay clause?  

    Thoughts?

    TIA

     

    What clause or wording within a clause are you referring to?

    I also didn’t understand what you meant about “and at some point after” and the “contractor caused some delay dealing with the defective specs”.  Was there a   Bilateral modification to adjust the contract, then a later delay?  What was the delay about? What delay was “concurrent” with ( at the same time as or on separate schedule paths as to Act concurrently) the some later delay? 

    Two delays that happen at different times on the same path are not “concurrent”.

     

  8. I haven’t even started to discuss the problems and challenges in using go/no-go factors to “pre-qualify” bidders or proposers. 

    Pre-qualification on a go/no-go basis necessarily involves use of “responsibility factors” .

    Edited: As stated above, Part 14.5 precludes responsibility type information in step one of a two-step sealed bidding method. 

    We’d have to really know what your overall objectives are for the triad mentioned above.

    It would probably help us to understand better if you could describe what you DONT want or are trying to avoid by using a pre-qualification step. 

    I’d be glad to discuss off-line with you.

  9. Batman, 

    20 hours ago, IAMBATMAN said:

    @joel hoffman Basically they want to do a  two phase selection procedure for design-Bid-build. Their rational is that  the process would result in the best qualified contractors. It would be go/no factors.

    Batman, using go/no-go criteria in phase one is incongruous with the objective of getting the “best qualified contractors”.  

    Did you mean “best qualified [bidders] [offerors] will compete in phase 2?  

    Edited paragraph:  If  phase two will be an IFB , there is already a two-step Sealed bidding method in Part 14. See subpart 14.5. I was involved in an Air Force, 2 step sealed bid design-build project in 1971-1972 and the Navy used to use that method for their design-build projects many years ago.

    Edited: However, In reading through 14.5, it states that step one is not for determination of responsibility - pre-qualification based upon abilities. Looks like it would have to be a Part 15 process. 

    If phase 2 will be an RFP, what non -price factors are you going to evaluate??  

    If phase 2 will be RFP, what is more important, price or non-price (qualifications?, or ?? considerations?)? 

    The methods chosen depend upon the acquisition objectives.

    I really don’t understand why one would use a two phase process for a straight construction contract, when you can consider both quality and price in one step trade-off. 

    You don’t necessarily get the “best” contractor in a go/no-go competition and why would the BEST firms compete solely on price? 

    Id be glad to discuss orally off-line with you. 

    EDIT: Even the best firms have their A-teams and B-teams.  You won’t get their A-team with a go/no-go gate to qualify for phase 2. This doesn’t look like it makes sense to me.  

    You need to develop objectives for cost, time, and quality, then decide why a two step or two phase process is necessary for a  construction contract for a “regular building”.  

    But decide  the acquisition process based upon desired objectives and priorities. 

  10. Batman, what do you mean by “pre-qualification”?  What are the objectives or reason to pre-qualify firms for construction of a “regular building”? Will there be a limited number of firms being qualified? Or is it going to be qualification based upon some go/no-go criteria - such as what??? 

    We’d have to know what the reasons or objectives are to require pre-qualifications.  In my opinion, that would not constitute full and open competition. It may be unduly restrictive.  

    Yes, we do use a two phase selection procedure for design-build but that is specifically authorized/required/preferred by law and implementing regulations. 

    Can you please elaborate? 

  11. On 6/9/2019 at 1:47 PM, C Culham said:

    Agree with consulting with experts but you may want to review 13 CFR 124.513 and .520 for some insight.

    I should have added that SBA must approve the JV Agreement.  However, how can the 8(a) be the managing partner for the JV and a subcontractor under a GSA schedule contract for performance??  

    Answer: It can’t. But ask the SBA. 

     

  12. Actually the term “repricing” is described  in various court cases and board decisions,  including “Victory Construction Co. vs US.*  ( https://casetext.com/case/victory-construction-co-inc-v-united-states  ) when they distinguish  between the two methods. If you think about it,  it has been Court and Board actions that defined or refined various terms or bases of price and time adjustments. 

    “Price realism” is another term where the Decisions have carved out the idea that “price realism” focuses on underpricing, while “Fair and Reasonable” focuses on overpricing. Neither term is clearly defined thusly from a reading of the FAR.

    Another one is “unabsorbed home office overhead”. The Courts have defined the parameters to establish unabsorbed HOOH. 

    *Victory Construction Co Inc v. United States, 510 F.2d 1379 (Fed. Cir. 1975)

  13. On 6/8/2019 at 2:13 PM, ji20874 said:

    Harry,

    If you want a legal answer, you should ask an attorney.  But you asked here instead, so perhaps you are interested in the opinions of practitioners?  I’ll share my unresearched opinion:  The JV does not hold a schedule contract, and therefore cannot receive an order against a schedule contract.

    A question for you:  Is there any reason the JV can’t get its own schedule contract?

    I agree that the JV is not the GSA schedule contractor. 

    And how can the actual 8(a) firm on an 8(a) set aside be in control of anything  under the JV agreement related to the GSA schedule if it isn’t the GSA schedule holder?  It can’t. 

    It appears that the 8(a) firm is just along for the ride to try to qualify for a set aside. That is specifically addressed in the SBA regulations.

    But - you should ask  the SBA your question...

  14. Retreadfed, I meant repricing of the remaining nine CLINs for current market conditions would be improper, as Vern described.  

    Yes, if there are fixed costs that were originally  apportioned to ten CLINs, for instance, the mod could include the unabsorbed fixed costs that were in the deleted CLIN as a separate, new CLIN or it could spread the cost among the nine remaining CLINs. That’s not “repricing” - it only provides for an (equitable) adjustment of  those remaining CLINs.  

    There is a technical difference between adjusting the CLIN price to reflect impact costs and “repricing”  , which means abandoning the old price and re-pricing it for current conditions.  The former would involve adding  each CLIN’s proportionate share of unabsorbed fixed cost, for example. The latter means a new bottom up price. 

    Bottom up repricing doesn’t leave the contractor whole - good or bad. 

    Simply adjusting the price for the impact of the change does leave it whole. 

    As an example of the difference, pricing of an adjustment for unit priced overruns outside of the range described in a Variation in Estimated Quantities Clause is supposed to be done only to reflect the difference in unit cost to the contractor to perform the quantity within the range and outside the range (the 1975 “Victory Construction vs US” Claims Court Decision principle).  Note that this assumes that no additional quantities of the unit priced items have been added by change.  Any new or additional quantities added by changes to the work can be separately unit priced. 

    In the late 1980’s, the Engineer Board of Contract Appeals embraced the concept of re-pricing overruns beyond 115% of the estimated quantities (the 1989 ENgBCA “Bean Dredging” decision method) but ASBCA disagreed,  as did the Court of Claims a few years later (1993 Foley Construction Co. vs US) , which set the matter straight, reverting to the Victory Construction Co. interpretation of the VEQ clause. The Eng Board had strayed from the Victory Construction principle in “Bean Dredging”. Indeed, the Corps and Eng Bd had tried to reprice the overrun in the earlier 1975 Victory Construction decision but were reversed by the Claims Court. 

    Thus, we generally** don’t “reprice” overruns based upon actual cost. We  would only adjust the unit price to reflect the DIFFERENCE in the contractor’s cost to perform work within and outside the VEQ range, if any. 

     **See a 2018 article at http://www.long-intl.com/articles/Long_Intl_Construction_Claims_for_Variation_in_Quantity.pdf

    The above article covers VEQ clause adjustments and the recent cases named above. 

    Probably more information than necessary but I tend to use terms that I’m used to using.  Sorry. 

  15. I am assuming that this is a construction contract (some or all non-commercial services involved in the change). The KO is within her rights to ask for cost breakdown information for non-commercial related costs) because the price adjustment for a Change is based upon the increases and/or decreases in the cost to perform the work as changed. 

    “15.403-3   Requiring data other than certified cost or pricing data.

    (a)(1) In those acquisitions that do not require certified cost or pricing data, the contracting officer shall—

    (i) Obtain whatever data are available from Government or other secondary sources and use that data in determining a fair and reasonable price;

    (ii) Require submission of data other than certified cost or pricing data, as defined in 2.101, from the offeror to the extent necessary to determine a fair and reasonable price (10 U.S.C. 2306a(d)(1) and 41 U.S.C. 3505(a)) if the contracting officer determines that adequate data from sources other than the offeror are not available. This includes requiring data from an offeror to support a cost realism analysis;

    (iii) Consider whether cost data are necessary to determine a fair and reasonable price when there is not adequate price competition...”

    In addition, if it is the first mod involving labor, materials, equipment, etc.,  I found it necessary and helpful to determine what and how various common aspects of pricing changes would be based, such as how indirect costs are treated. Better to get that out of the way or understood up front, rather than re-inventing the wheel each time. 

    As for cost analysis, you misinterpreted the FAR guidance, ignoring subparagraph (4) below:

    “404-1   Proposal analysis techniques.

    (a) General. The objective of proposal analysis is to ensure that the final agreed-to price is fair and reasonable.

    (1) The contracting officer is responsible for evaluating the reasonableness of the offered prices. The analytical techniques and procedures described in this section may be used, singly or in combination with others, to ensure that the final price is fair and reasonable. The complexity and circumstances of each acquisition should determine the level of detail of the analysis required. 

    (2) Price analysis shall be used when certified cost or pricing data are not required (see paragraph (b) of this subsection and 15.404-3). 

    (3) Cost analysis shall be used to evaluate the reasonableness of individual cost elements when certified cost or pricing data are required. Price analysis should be used to verify that the overall price offered is fair and reasonable. 

    (4) Cost analysis may also be used to evaluate data other than certified cost or pricing data to determine cost reasonableness or cost realism when a fair and reasonable price cannot be determined through price analysis alone for commercial or non-commercial items.”

    Since the equitable adjustment is “cost based”  (effect on the contractor’s cost) and the fact that equitable adjustments include an allowance for profit on costs and profit on deductions, asking for the direct and indirect cost basis and the profit basis is reasonable in order to mutually arrive at an overall reasonable “price”. 

    I cant speak for NAVFAC and their internal policies but I negotiated changes for Air Force in the 1970’s and for the Corps of Engineers on contracts for Army, Navy, Air Forces, civil works and for FMS work at home and overseas for over thirty years and typically obtained and evaluated detailed proposals, such as what the Navy is asking for.  

    Realize too, that you won’t have to repeat the effort to familiarize the KO with how indirects are costed/priced for every subsequent mod. 

  16. 3 hours ago, Retreadfed said:

    That case doesn't affect the above conclusions. The KO completely restructured the contract option for production, which the ASBCA said was beyond her authority under the Changes clause and was a Cardinal change, outside the scope of the contract. The Board made that clear but since the Contractor accepted by continuing performance, presumably because it wanted the work rather than having re-compete for it, etc., the Board did not address the legality of the action.

    It was a very complex scenario,  an example of what Vern was cautioning against in his 2011 post and reinforces what I was talking about. 

    I started copying relevant points in the Decision but it runs for pages. One can read for themselves.

    In this case, the Contractor had to re-price the work due to the Cardinal Change to the contract option, which reduced the required quantity from 12 to 5 units.

     

     

  17. 3 hours ago, Jamaal Valentine said:

    I'm retiring from this thread. My head and heart hurts.

    Jamaal, I take it that your solution is to abandon further years of this contract and re-procure for next year.

    There is no need and no funding for one of the portions of services. Even if there were funds but not the need, it would involve unnecessary extra work, be wasteful of resources and  costs to exercise the entire option then delete the work by change or partial termination for convenience. 

    Work it out ahead of time, within the scope of the competition. Sorry your heart hurts. 

  18. Good luck, Guardian. This morning, I read through this thread again as well as the 2011 thread I referenced and Vern Edwards post therein. 

    He began with :

    “There is no absolute prohibition against the modification of an option prior to or at the the time of its exercise. There are two issues concerning the modification and exercise of options. I will call them the Validity Issue and the Scope of the Contract/Competition Issue.”

    He then worked through the two issues and urged caution and prudence. 

    I mentioned earlier that one area of ten services now being performed that you have no need or funding for and that you need to delete might not be completely severable and/or the contractor might not want to perform a smaller scope of work. 

     I don’t think that you can UNILATERALLY exercise a portion of the option, affect scope of the competition or expand the scope of the option period.

    My advice is to communicate the problem and scenario with the contractor and find out what the impact is (unabsorbed fixed costs? ) and if the contractor can accept the reduction as priced but for the impact, if any. Then work through it bilaterally before extending the term of the contract.

    If the contractor wants to reprice the remaining portion of the option, that would be improper and affect the scope of the competition. Then it looks like you would have to re-procure the next year’s services.

    Is that clearer?  

     

  19. 14 hours ago, Guardian said:

    Joel,

    How would I exercise all ten CLINs if I only have a funding commitment for nine (Anti-deficiency Act violation?) and no authority to incrementally fund?  Sounds like you prefer exercising nine out of ten CLINs per 52.217-9 over a bilateral mod because of potential scope issues.  How was your sailing trip by the way?

    Guardian, yep I agree with Vern’s excellent analysis and with bilateral reduction in scope and mod to add the nine CLINs for the next year’s effort.  This would be after complying with 15.207 (c) through (e). 

    I mentioned the other alternative only because some hinted that reducing the scope at all might affect the original competition or be considered a cardinal change. If so, then  the government couldn’t add the option and exercise its contractual right to a partial termination for convenience, which makes no sense to me. Of course, the government may partially terminate the scope of work in a contract during performance after award.  The government could also issue a deductive Change during contract performance, as long as it doesn’t make a major change, reprice work for current market conditions, etc. See Verns advice and caveats in the referenced 2011 thread. 

    If it can delete work through a partial termination or a Change Order, in accordance with the terms of the contract if the requirements change,  it should be able to make minor deductions bilaterally when adding the option year.

    That would be appropriate as long as 1) it isn’t a cardinal change, 2) it is a minor deduction,  3) it doesn’t affect the original competition,  4) the government doesn’t do it because it failed to do the market research and documented determinations required by 15.207 (c)-(e) before adding the option year. 

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