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joel hoffman

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Posts posted by joel hoffman

  1. I didn’t find an ethical problem but the JTR did say in one place that contractors should provide their own resources to perform the contract and that normally, contractors shouldn’t drive govt vehicles.  

    The real problems,  in my opinion, would be liability, as mentioned herein before, and in separation of funding and accounting for the costs involved.

    In addition, how would one government program reimburse the Air Force’s flying and maintenance costs, GSA or DOD O&M appropriations for ground vehicles, etc. ? 

    it would be a complex, and govt intensive logistics exercise to determine, account for and reimburse various other accounts for the cost of travel in govt conveyances. 

    Contractors, if allowed to fly on govt planes, may well be standby.  Who are they going to bump? What happens if the plane doesn’t fly or is delayed (a common event in my Air Force and government employee experience flying “USAF Air”, Space- A.

    For other than duty in a War Zone, I would expect the govt  to say “Buy your own tickets; we don’t want to be responsible for determining  costs or for delays, injuries or death to contractor employees”. 

     

  2. 1 hour ago, Patrick Mathern said:

    I believe the point that Retread's making here (and in which I'm also interested) is as follows: 

    Assume the Prime is exempt from submitting certified cost or pricing data due to competition at the Prime Contract level.  Now assume that the Prime has a subcontract on this same prime contract that exceeds the TCOPD threshold and is not subject to FAR exemptions.

    What will the CPSR team expect to see if they pull this file down the line?  A cost analysis and cost or pricing data cert from the sub?

    1. This would be a Cost Reimbursement contract or non-competitively negotiated FFP contract if there will be a contractor purchasing team review (44.303 Extent of Review).  If C&P data are required of prime or sub for initial awards of subcontracts, the contract must include those applicable clauses for cost or pricing data. (52.215-10 and 52.215-12).

    2. For a FFP contract that was competitively negotiated or an IFB, it’s not the government’s business what price  the contractor subs it’s initially awarded contract priced work for , except when a modification is involved. The only C&P clauses clauses in the contract concern pricing of modifications.  The government has no recourse for Defective pricing of the initial subcontract price for the contract between the prime and it’s subcontractor, unless the subcontract was issued for a modification that is subject to C&P data. 

    3. The only C&P Data clauses in the instant contract in this thread are those involving pricing of modifications (52.215-11 and -13). Thus it appears that the contract is FFP (competitively negotiated). Please  don’t over complicate this thread. 

     

  3. 28 minutes ago, general_correspondence said:

    This clause shall become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR15.403-4, except that this clause does not apply to any modification if an exception under FAR15.403-1 applies.

    We take exception to certified pricing data based on the award being a result of a competitive basis... so maybe I am running down a worm hole!

    CeWheaton, you're MOD stand alone amount, if exceeds the threshold for certifying costs, and if non-competitive, will require a Certificate of certified cost and pricing from your subcontractor

    And from the prime. And the amount is based upon the absolute value of increases and decreases, not the net increase or decrease. 

  4. Ok ok ok ok ! The limitations on subcontracting clause is inapplicable for this task order but please verify that with the government.  

    5 minutes ago, ElBarz said:

    Pardon me - unrestricted bid.

    We'll ask the question to the Government.

    However, this is Seaport.  Seaport - the IDIQ - was not set aside for only small or large businesses.  They basically let anyone in.

    This task order is not set aside for small businesses.  However, we are a small businesses under the Seaport IDIQ.

    I can’t guarantee that they will agree. At least you have some reasoning to argue that it doesn’t apply. 

  5. On ‎11‎/‎21‎/‎2018 at 11:05 AM, ji20874 said:

    I agree -- that's what I've been saying from the beginning.

    I agree, too - from the beginning.

    From the limited information available, my gut instinct is that the govt KO would be going beyond the terms of the contract and his/her authority to agree to reimburse the prime for hours not worked by the sub and for the prime directing its sub to send the workers home early. The job site was deemed unsafe by the prime due to smoke and fumes from the wildfire - an Act of God. 

    It probably would have been an OSHA violation to require them to work under unsafe conditions. There could have been a negligent liability created had any worker been sickened or physically impaired by remaining on the job under the conditions. I’m quite certain that contracts contain certain requirements for safety that wouldn’t provide for the employer to require a worker to be subjected to unsafe or unhealthy work conditions.

    On top of all that the hourly unit rates include an allowance for profit . The KO would be paying unearned profit. 

    In actuality, an allowance for profit usually includes some risk. “Profit” is what is left after subtracting all costs. The contract was structured for some risk allocation due to causes beyond the control of either party. 

    The KO has a responsibility to comply with the terms and conditions and established risk allocation in the contract not act as Santa Claus or Santa “Clause”.

    EDIT - ADD: I suggest that Santa “Clause” go back to the North Pole, read the contract, understand the risk allocations in a fixed price contract when encountering unsafe working conditions due to an Act of God.  

    And Santa sure as heck shouldn’t pay the hourly rate for hours not worked, which includes an allowance for profit and allocated risk.

    Remembe that profit isn’t guaranteed. The contractor’s contract unit rates, including “profit” ,  should have considered the risks allocated to the company in the contract. 

     

  6. 22 minutes ago, Cewheaton said:

    I am reading that FAR 15.215-11 and it states that

     

    This clause shall become operative only for any modification to this contract involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR15.403-4, except that this clause does not apply to any modification if an exception under FAR15.403-1 applies.

    We take exception to certified pricing data based on the award being a result of a competitive basis... so maybe I am running down a worm hole!

    Even if we as the Prime do not have to certify our costs, I have a manager stating that regardless of what we do at the Prime, if we have a sub that exceeds TINA they still have to certify to us regardless... which I don't feel is correct either... ughh

     

    The “if an exception under FAR 15.403-1 applies”  language  you refer to is referring to an exception for the MODIFICATION under 15.403-1,  not if the original contract was excepted due to competition. 

    If you have a subcontract modification action subject to certification to you that will be passed on to the government, then you will likely be required to certify the mod action to the govt.  

    Ask the KO. 

     

  7. Yes, if they are subject to cost or pricing data requirements for the modification action. 

    Are you asking that, if a mod increases the subcontract amount to the threshold, they must certify for the whole subcontract ? No. It only applies to the amount (absolute value) involved in the mod action.

    Please note that these are questions you should be asking of your government KO or ACO.  They know the specific circumstances and SHOULD know the specific contract requirements. 

  8. Contracting Officer authority derives mainly from a delegation of authority, in writing, from the Head of Contracting Activity, the so-called “contracting warrant”.  FAR 1.602-1 states that this includes “authority to enter into, administer, or terminate contracts and make related determinations and findings.”  But the FAR cautions thatContracting officers may bind the Government only to the extent of the authority delegated to them.   The FAR also cautions that no contract may be awarded “unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances...

    This KO has no real authority as a PCO to administer, terminate, make related determinations and findings, to issue or award any task orders or to effectively bind the government to anything of value. It can’t delegate any higher authority to another contracting officer.

    Thanks, Lionel for the citations that I was looking for last night using this blasted iPhone. I essentially agree with you, except perhaps about the consideration.  There is no legal requirement that the consideration be “adequate”, rather it must “something of value”  plus you indicated above that it must be more than a “nominal quantity. I think that  0.00000001 of the maximum contract value is not something of value.

    Plus the Procuring Contracting Officer can’t perform any meaningful KO functions. There is no guarantee that another KO would be appointed to takeover the contract administration. 

    The original PCO couldn’t even terminate the contract for convenience if the termination settlement would exceed one dollar.

    Thus, it would not be a binding contract.  

    In addition, whoever would issue such a warrant should have their appointment authority voided for idiocy and irresponsibility. In addition to having their head examined, they should have their own warrant voided, if they have one. 

     

  9. 41 minutes ago, Sunstrider said:

    I've posed this question to several folks and heard several different answers, all with strong reactions.

    To clarify, this question is respect to the basic IDIQ vehicle itself, and has nothing to do with any order(s).

    Can they award? Why or why not?

    1.602-1   Authority “...Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers' authority shall be readily available to the public and agency personnel.”

    See also the applicable Agency Supplements. 

    1. Please show us the warrant and instructions as described above.

    2. How much is the minimum amount that the government is bound to for any or each IDIQ contractor holder?

    3. What is the actual or potential amount of the government’s liability if no task orders are issued ?

  10. Ask your KO.

    However, I think you answered ji’s Question number 1 as “no”.

    You also said that this task order is not reserved for small business*. The 52.219-14 clause only applies to task orders that are set-aside for small business.**

    But ask your KO anyway. That should have been my answer from the beginning. 

    *The title of this thread used the term “full and open”, which technically is wrong for a task order competition. It is apparently an unrestricted “fair opportunity” competition for all IDIQ pool members.  “Full and open” would be a term associated with competition for multiple awards of the  original IDIQ contracts.

    EDIT: **see, for instance, 15 USC 644 (a), (o) and (r) and FAR 16.505(b)(2)(I)(f) for application of the limitations on subcontracting. It applies, in a task order completion or sole source task order, to set-asides, reserves for sole source,  or where a small business is given a price advantage consideration.

  11. 2 hours ago, Cewheaton said:

    Is this far applicable if the prime contract was awarded on a competitive basis. Is this clause applicable to our subcontractors if we do not have to certify the prime contract level because Tina is exempt based on the competitive award

    By “awarded on a competitive basis”, I’m assuming that you mean the contract was awarded using competitive negotiated procedures. See 15.000 Scope of Part.

    As ji stated, 15.408(e) is the prescription for the clause at 52.215-13.

    Is the clause at 52.215-11, Price Reduction for Defective Certified Cost or Pricing Data—Modifications,  in your contract?  Even if the prime contract was awarded on a competitive basis, that doesn’t necessarily mean that the prime contractor is exempt from the requirement to submit cost or pricing data for a modification. 

    If the prime is required to submit cost or pricing data in support of pricing a modification, then clause 52.215-13 might be applicable to subcontractor(s) pricing of a modification. 

     

  12. H2H,  I did not read where the government directed that the subcontractor employees leave. 

     Even if the government did direct it, We don’t have enough information to know that the order wasnt absolutely necessary due to health and welfare, i.e. that the site was unsafe because of smoke from the California forest fires.I don’t see where that would’ve created any liability on the part of the government.

  13. 50 minutes ago, Shawn said:

    Approximately 1.5 days were missed in our situation. I believe CA labor law may come into play for those Subcontractor employees in a non-exempt capacity.  At this juncture, we've recommended the impacted Subcontractor's employee(s) to contact their respective employer for guidance on how to best charge their time. Our CO has confirmed such time as allowable absent any provision in the SubK.

    Interesting. I wonder how it is allowable as a government cost  - especially for time beyond the initial 1/2 day. If the unit prices per labor hours are going to be reimbursed, not only would the taxpayers be paying for time not worked on a time and material basis but for profit on those hours, too. 

    Appears to be very generous...particularly so if the clause that I cited above is in the contract in addition to the 52.232-7 clause, itself.  

  14. 56 minutes ago, Retreadfed said:

    Joel, my comments to which you were responding were intended only to respond to H2H's question, which was open-ended and not limited to any particular contract type.

    Righto. 

    I was really responding to H2H concerning Katrina, however, I missed the “shipyard” . 

    Since you mentioned Katrina, CPIF and rework, i wanted to distinguish between various types of contracts if you were perhaps referring to construction contracts, where risk allocation can vary widely depending on contract types and project types.  

    There is no one rule or standard for entitlement to reimbursement. 

     

  15. 22 minutes ago, Retreadfed said:

    I had a client that was impacted by Katrina.  It had CPIF contracts.  The big issue they faced was the cost of redoing work that had already been done.  The government paid for the increased costs, but did not adjust the incentive structure.  In addition, because of diversion of labor to recovery projects, where workers were paid premium wages, the client had to recruit new employees and pay them premium wages in order to be competitive with other employers.

    And they were Cost Reimbusement contracts which have different risk allocation than fixed price contracts. The clauses that I referred to don’t apply to CR contracts. 

    I would also note that USACE fixed price civil works projects that would be subject to damage due to flooding have historically included provisions for reimbursement for damage to permanent works caused by flooding or overtopping of cofferdams, etc. 

    Fixed-price Military Construction projects, traditionally do not provide for reimbursement for repairs to damaged work, except in very limited circumstances. 

    Just a different approach to risk allocation, as MILCON projects have statutory Program Amounts and Statutory cost limits. Contractors have been able to obtain builders risk and similar insurance coverage, which is considered in the PA and required by the FFP construction contracts.  

    Civil Works programs, aside from often being located on rivers and coasts, have been much more flexible in funding authority and  possibility for obtaining additional funds for repairs to damage by flooding, storms, wind, etc. Certain risks have not been insureable  due to the location and type of work involved on civil works projects. 

    At least that is what I was taught years ago in my USACE construction contracting classes. DAU may or may not teach background or distinctions in risk allocation between military and civil works construction. I doubt that civil works projects are even covered as they are under Title 41, not Title 10. 

  16. If the following services and supplies clause is in the contract , it excuses delays due to such causes as “fire”, but only provides for a schedule adjustment, not a price adjustment. It includes time and materials contracts.  The Default fixed-price construction clause is similar for such construction contracts. 

    52.249-14 -- Excusable Delays.

    52.249-10 -- Default (Fixed-Price Construction).

    What clause would allow a price adjustment for an Act of God, such as fires?

    Was a clause similar to these or other 52.249 clauses, which would address delay impacts (disruption to performance resulting in additional costs) in the subcontracts? 

    If so, the prime might not be liable for the cost of delays due to impacts of fires. 

    Otherwise, what contract term or condition would provide for reimbursement of additional costs due to an Act of God that disrupts contract performance?? This is assuming that the prime contractor directive was reasonable due to the fire?  An employer would be negligent if it allowed or required  the workforce to work under unsafe, dangerous or unhealthy conditions. Think of workman’s compensation claims or worse if they had remained...

  17. 21 minutes ago, ji20874 said:

    Joel,

    The original poster said there is a subcontracting limitations clause in the parent IDIQ contract (you are I are presuming it is the clause at FAR 52.219-14).  Are you suggesting the clause should not be in the contract?

    Nope. I’m not suggesting that.  I’m saying that it would be applicable to an order set-aside for small or or small disadvantaged businesses. It is not applicable to unrestricted PARTS of the contract. That should include unrestricted task order competitions.

    In such cases, if there is  a general restriction on subcontracting applicable to an unrestricted task order (example: 52.236-1 Performance of Work by the Contractor),  it should apply to all competing firms on an equal footing.

    I remember reading where Congress prescribed the limitations on Subcontracting controls for restricted preference programs.

  18. 16.505(b)(2)(I)(f):

    “(F) In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for small business concerns, the specific small business program eligibility requirements identified in part 19 apply.”

    “8.405-5   Small business.

    (a) Although the preference programs of part 19 are not mandatory in this subpart, in accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r))—

    (1) Ordering activity contracting officers may, at their discretion—

    (i) Set aside orders for any of the small business concerns identified in 19.000(a)(3); and

    (ii) Set aside BPAs for any of the small business concerns identified in 19.000(a)(3).

    (2) When setting aside orders and BPAs—

    (i) Follow the ordering procedures for Federal Supply Schedules at 8.405-1, 8.405-2, and 8.405-3; and

    (ii) The specific small business program eligibility requirements identified in part 19 apply....”

     

  19. The limitation on subcontracting clause is intended for set-aside contracts or task orders for small or small disadvantaged business or for sole source  contracts/task orders to such firms. By its own wording,  52.219-14 it shouldn’t  apply to unrestricted contracts or unrestricted task orders, where competing for the task order with large business firms without preference for small or small disadvantaged businesses. 

    Assuming that the IDIQ was not restricted to small or small disadvantaged businesses in the first place, then it shouldnt apply to this task order. 

    Why would it apply to an unrestricted task order even if a portion of the pool or subpool is sepately composed of small or small, disadvantaged business that some orders could be restricted to?  

    It would seem to me that the small business firm should be subject to the same subcontracting restrictions as a large business firm when competing head to head with them for an unrestricted task order.

    the prescriptions for the clause are:

    19.508(e):

    “(e) The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set aside or reserved for small business and the contract amount is expected to exceed $150,000. This includes multiple-award contracts when orders may be set aside for small business concerns, as described in 8.405-5 and 16.505(b)(2)(i)(F).”

    19.811-3 (e):

    “(e) The contracting officer shall insert the clause at 52.219-14, Limitations on Subcontracting, in any solicitation and contract resulting from this subpart. This includes multiple-award contracts when orders may be set aside for 8(a) participants as described in 8.405-5 and 16.505(b)(2)(i)(F).”

     

  20. A bankruptcy might not discharge ALL debts, so one must determine if there are any restrictions on direct payment to the contractor first.  That’s all I am saying. Don’t pay until you find out if there is an assignment or requirement for dual party checks. 

     In my personal example, the employer of the family in bankruptcy had to send his paychecks to the trustee, who paid the family’s recurring bills such as the house payment, utilities, etc. The Trustee required that the insurance company send a two party check to the family. The other party was the  mortgage company, which held the check until all repairs were made to the home from flooding due to broken plumbing .  

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