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joel hoffman

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Posts posted by joel hoffman

  1. On 12/15/2023 at 4:29 PM, Fishpaw said:

    Since this is a BAA, how could I proceed to issue an award? Send in an auditor to establish what the indirect rates should actually be?

    If you are referring to DCAA, will they actually establish indirect rates with or for the proposer? Or do they only review the proposed rates and audit (sample examination mostly) the basis for proposed rates? 

    I occasionally reviewed the indirect pool info provided by small construction contractors and the “cost of sales” info to perform desk audits of sorts during contract negotiations. It probably wasn’t 100% accurate but was likely reasonably accurate for our purposes on smaller contracts (~under $3 million back then).

    It was very difficult to get the DCAA to perform audits for Military Construction  contracts, let alone Civil Works contracts (we had to pay DCAA for CW audits). . They concentrated on big Defense contractors/contracts and had little time for construction or civil works construction.

    ———————————
    DCAA audits for construction contracts were usually disappointing.

    DCAA usually either didn’t understand or overlooked the quirks of FAR 31.105, including special treatment of construction direct and indirect costs for ownership, operating, maintenance and repair costs for contractor owned construction equipment.

    The treatment of those costs could significantly affect G&A and overhead rates as well as result in duplicated direct costs.

    I resorted to attaching primer instructions with every DCAA audit request from our District.

  2. 15 hours ago, Jamaal Valentine said:

    Answer this: is it possible for the government to exercise all options at the same time if they find they are very satisfied with the contractor? I believe your answer will be ‘yes, if….’ However, I suppose you can say no. I just think a negative response can be more misleading given the polar question.

    I already indicated yes, if. The answers have been general in nature because there is no more context than that it concerns “option extension” and because they are very satisfied with the contractor’s performance.

    A flat “yes” to the extremely general initial post, with essentially no context, is very misleading. 

    From the information provided in this thread, she can decide what is necessary in order to award the options, sequentially or simultaneously.

    How about letting the sleeping dog lie? Janette appears to have left the thread after her initial one sentence post last Monday morning.

  3. 9 hours ago, ji20874 said:

    Ah but nothing in FAR 17.207 requires option exercises in sequential order, with time gaps in between each one.  Any or all of those requirements could be done at one time for all the options the OP wanted to simultaneously exercise.

    I’m not saying that FAR 17.207 requires award of options sequentially.

    The OP would have to comply with the requirements of those paragraphs that I identified before exercising the options. Complying  with some of them may present a challenge to her proposal under the existing contract. There might be an industry challenge if they simultaneously award all of the contract extension options at once.

    However, the OP apparently isn’t interested in providing any more information regarding the nature of the contract or a reason other than them being very satisfied with the contractor to date. She should now have enough information to decide what to do before awarding all the options at once.

  4. Ah but the requirements of FAR 17.207 (b), (c) (1), (2), and (3), (d) (1), (2) and (3) and (e) would also be applicable for sequentially awarding options for contract extensions.

    The funding requirement wouldn’t be applicable to an ID/IQ extension unless there would be minimum order obligations during the extension periods. Hopefully not.

  5. 2 hours ago, Voyager said:

    Ah but I suspect the agency's soliciting a FFP for undefined travel requirements was a function of FAR 16.504(c)(1)(ii)(D)(1)(ii) requirements under a SATOC.  CR is likely off the table.

     

    I’m betting that if this task order contract exceeds $100 million, Tim H. wouldn't be soliciting advice on a website. 🤠

  6. 19 minutes ago, Voyager said:

    As you can see, the clause must be consistent with FAR 16.202-1.  That's why you write it to only allow the quantity to vary.  This is consistent with Vern's quoted guidance C Culham provided above.

    One can include a CR or other specially crafted CLIN for incidental type work or efforts that aren’t possible to reasonably estimate in a FFP contract. When a utility or railroad must perform some incidental work in a contract but refuses to be bound to a fixed price or fixed unit price for any extended period or otherwise can’t provide a final estimate/and or binding up front price, we would put our best estimate or the RR’s or Utility’s ROM in a plugged CLIN for every offeror to use.

    In this thread, the government has control over purposes of, numbers of, destinations and lengths of each trip. The contractor doesn’t have that same control. 

  7. I understand - I’ve often seen a CLIN for travel or some other part of the works, like extensions of utilities by the utility companies or railroad crossings performed by the railroad for the contractor with a FFP plugged number for inclusion in a total obligated contract maximum price based upon an preliminary estimated amount . It can effectively serve as an NTE limitation.  Then the government would place conditions upon payment, such as paying the actual costs up to the plugged number.

    But the scope or work and necessary amount of travel was generally defined and/or controllable. If more travel was necessary, the government would modify the line item amount.

    I guess that it is the same as or similar to a Cost reimbursement line item.

     

  8. 34 minutes ago, Jamaal Valentine said:

    @joel hoffman

    Can is an auxiliary verb used to indicate possibility. Yes, it is possible. The answer is yes. It doesn’t matter if you want to add ‘yes, and’ or ‘yes, but.’ Your only other responsive choice is to say ‘no,’ meaning it is not possible under any circumstance.

    Sorry, Jamaal. She asked if the government (assuming it meant “our organization” , as the government)  can exercise all the options for extensions if (meaning as the reason and justification for) the government has found that it is “very satisfied with the [performance to date] of the contractor”.

    No explanation of the type or purpose of the contract provided. 

    The answer is not an unequivocal yes. The context and other factors are necessary to consider before such action can be taken. 

    Ok - so - No,  if asking because the extension is based only upon current “very satisfied”, feel good impression of a contractor’s  performance.

    The answer is No - if the KO can’t satisfy all other required conditions and constraints. 

    A yes answer to exercise any extension option, let alone all extension options simultaneously requires further knowledge of the context of the extensions and consideration of any other constraints or requirements before exercising the option(s).

  9. 12 hours ago, Tim_H said:

    Poor choice of words, I apologize.  This is an existing single award contract exactly as you hypothesized...Task Order IDIQ contract with pre-priced labor categories. The IDIQ award has an NTE amount for the travel CLIN, but there is no year-by-year travel amount set.  

    I like your suggestion to discuss the topic in depth to reach a mutual understanding and agreement on method and pricing for travel.  It's a no-brainer, I was just too focused on the insane request to think it through.  Thanks for being a much more logical set of eyes on this, I appreciate it.

    Thanks for your clarification, Tim. Two more  clarification questions.  Are you negotiating

    1. travel costs (or pricing) at the contract level or at the task order level?  I’m guessing at the task order level and, if so:

    2. Will task order level pricing be actual, allowable costs, not to exceed a capped limit? Looked that way per your original post. Or will it be strictly FFP?

    My suggestion is still valid and I agree with Vogager, directly above.

    You are entitled to full understanding of the government’s intent and concerns and both parties should be able to come to a mutually agreeable and acceptable approach. The government should consider your concerns about lack of clear scope and risk due to undefined travel times, frequency, length or destinations.

    Remind the KO that the government appears to have sole control over ordering and authorizing any travel.

    A FFP line item amount, then drawing from that amount based upon actual, allowable costs, with NTE ceiling costs, not subject to adjustment for an indeterminable travel nature and frequency, seems to an untenable risk - unless you add adequate risk to the negotiated price.

    Risk that is priced as a contingency is generally unallowable for the contractor to include in a FFP line item.

    Likewise, putting a non-adjustable cap (NTE) on unknown amount of government controlled and directed travel is equally unacceptable.

    My suggestion is a line item with an estimated amount of costs for authorized travel to draw from,  that is adjustable,  if conditions necessitate. The government has reasonable control over the line item.

    This is a sole source contract, so concerns over competition scope and conditions aren’t evident.

    Negotiate with the purpose of  a “Win - Win or No Deal” outcome (per Stephen R. Covey’s “Seven Habits of Highly Successful People”). I always tried to do that.

    Good luck. 

  10. 12 hours ago, GABE said:

    JFOC-Justification For Other Than Full and Open Competition 

    My apologies.

     

    I thought that it might be the plural of “JFOC - Joint Future Operational Capability”. Please excuse my ignorance. 🤠  

    I would never had guessed JFOCS means the plural (“s”) for (“J”) justification (“F”) for (“O”) other than free and open (“C”)  competition.  🤪

  11. 12 hours ago, Jamaal Valentine said:

    Here is the question in full —

    It’s a closed question - yes/no. There is no maybe about it. The answer is yes.

    Not, necessarily.There is little detail discernible from the original question other than being “very satisfied” with the contractor’s performance to date. That can’t be the sole basis to allow awarding future options.

    If it is a C type service contract with yearly extensions, for instance.

    If such extensions depend upon future one year funding, then funds must be available prior to award of future options.

    In addition, for C Type service contracts with yearly extensions*:

    Unless the original competition allowed for award of future options initially or simultaneously at a later time, before exercising each option simultaneously, the KO must also consider, for each option , FAR 17.207 (b), (c) (1), (2), and (3), (d) (1), (2) and (3) and (e). That would also be necessary for sequentially awarding options for contract extensions.

    It might not be possible to determine or estimate market conditions and what available market pricing may be available for the future out-years at this point in time. There are valid reasons for the conditions imposed by 15.207, many of which concern competition and future market conditions.

    I don’t think one can simply take a snapshot view of all options based upon current conditions for an expedited, simultaneous award of the future options for services.

    The original contract competition was structured for and probably anticipated an orderly award of options over an extended period, with continued satisfactory performance and contractor status (consistent with 17.207 (c) (5),(6) and (7) and the other required considerations for subsequent extensions.

    Thus, the effect upon FAR Part (6) competition might be a consideration or be impacted by early exercise of out-year options for services and possibly for supplies.

    The government can’t simply restructure the original basis of the competition or simultaneously award future options, while circumventing the other conditions for awarding each option, based upon one reason - for the purpose(s) of convenience and/or for rewarding the contractor for “very satisfying” early performance (in reference to the asterisked scenario above).

  12. 3 hours ago, Jamaal Valentine said:

    Yes. However, that answer may not be useful or applicable to the options you are contemplating. Nonetheless, the technical answer is - yes.

    The technical answer to her specific question is - maybe. Depends upon the context of the specific circumstances. 

  13. Retreaded and Carl are correct.

    The FAR directly addresses Engineer Manual 385-1-1.

    The EM 385-1-1 is a specific contract requirement when contract clause 52.236-13 Accident Prevention is in the contract. The clause directly addresses the EM.

    The Accident Prevention clause is required for ALL DoD agency and component fixed price construction contracts,  certain service contracts and certain other contracts, as prescribed in FAR 36.513.

    @bodenlok should be familiar with his/her contract requirements, including the contract clauses and what they require. 

    EDIT:

    A GOOGLE Search for "FAR EM 385-1-1 includes this reference to FAR 52.236-13, including EM 385-1-1:

    "52.236-13 Accident Prevention.

    Acquisition.GOV (.gov)

    https://www.acquisition.gov › far

    ... EM 385-1-1, in effect on the date of the solicitation. (d) Whenever the Contracting Officer becomes aware of any noncompliance with these requirements or ..."

    image.png

  14. On 12/12/2023 at 10:24 AM, bodenlok said:

    EM_385-1-1 para 01.A.17a - The SSHO Shall:  (1) Be a full-time responsibility.

     

    However, our experience is that on certain construction contracts the Superintendent can serve as SSHO.  Other contracts have allowed for the QC Manager to also fulfill this role. It is only when the specifications state "SSHO shall have no other duties" do we have a sole individual fulfill the duties of SSHO.  

    Question is, if EM_385 states "full-time responsibility" do the specifications take precedence?  I haven't found a FAR that really addresses EM_385 or the like.  Would EM_385 be considered an attachment? 

     

        

    @bodenlokWhat edition of the US Army Corps of Engineers (USACE) Engineer Manual:  EM 385-1-1 “Safety and Health Requirements” are you supposedly (partially) quoting? The November 2014 version reads: 

    (01.A.17)

    “a. The SSHO [Site Safety and Health Officer] shall:

    (1) Be a full-time responsibility. The SSHO shall be present at the project site, located so they have full mobility and reasonable access to all major work operations during the shift.

    (2) Be an employee other than the supervisor, unless specified differently in the contract and coordinated with the local SOH [Safety and Occupational Health] Office, and

    (3) Report to a senior project (or corporate) official.”

     Note: underlining in the 2014 edition denotes edits from the previous, 2008 edition.

    EDIT: Therefore, EM 385-1-1 doesn't conflict with specifications allowing collateral duties. "Full-time responsibility" means that the contractor has full-time, not part-time responsibility for the site safety function. The SSHO or approved designated alternate must be on-site during each shift of construction operations. If the contract allows collateral SSHO duties for a person in another position, the person must perform the specified SSHO duties in addition to their other duties.

  15. Please clarify. You apparently said that you have a contract but that you have to “bid on travel each year” and that you must “provide the methodology [you] use to bid on the travel.”

    On 12/7/2023 at 7:44 PM, Tim_H_ said:

    My contract has 2 CLINS, both are FFP.  One is for labor and one is travel (it is FFP NTE).  My issue is that our KO insists that we not only bid on travel each year, but provide the methodology we use to bid on the travel.

     I don’t understand what you meant by the term “bid”. A bid or bidding are specific terms used for one type of competitive acquisition to win a new (usually single award contract) - with no negotiations involved. It is called “competitive bidding”.

    Is this an existing single award contract, such as a Task Order ( e.g., Indefinite Delivery/Indefinite Quantity) contract with only pre-priced labor line items?

    If so, you seem to be proposing and negotiating a line item for travel, right? When you say it is FFP NTE, you seem to indicate that there is a plugged NTE line item and the KO wants another number. If it is still going to be an NTE, what’s the reason for revising it??

    Regardless, if you are NEGOTIATING the line item, you should be discussing it together in depth, until there is mutual understanding of how it works and come to an agreement on the method and the pricing. That’s my suggestion on how to handle the situation.

  16. Why would you do that, especially if the appropriate funding for each extension isn’t available at the time of a single act of extension across fiscal years?

    There are numerous problems associated with attempting that scenario. It’s not exercising outyear options in strict accordance with the terms of the options, wage rate adjustment problems, obligating the government without the assurance of future funding, eliminating a contractual incentive for continued performance to ensure very high satisfaction, etc., etc.

  17. On 12/7/2023 at 8:05 PM, Beersheba said:

    Now I'm hearing rumble that contracting officers can put the SCA into an RFP, or can leave it out.

    What is “rumble”??? Who is the “rumbler”? To me that is a questionable (actually ridiculous looking/sounding) statement that I would challenge the “rumbler” to explain and prove. Did you do that?

    Im assuming that this concerns contracts in the United States…

    See, of course, also the applicability and non-SCA employee exemptions in Part 22…

  18. FAR Subpart 22.10 - Service Contract Labor Standards

    “22.1000 Scope of subpart.

    This subpart prescribes policies and procedures implementing the provisions of  41 U.S.C.chapter 67, Service Contract Labor Standards (formerly known as the Service Contract Act of 1965), the applicable provisions of the Fair Labor Standards Act of 1938, as amended (  29 U.S.C.201, etseq.), and related Secretary of Labor regulations and instructions (29 CFR parts 4, 6, 8, and 1925)….”

    FAR 22.1002 Statutory and Executive order requirements.

    “22.1002-1 General.

    Service contracts over $2,500 shall contain mandatory provisions regarding minimum wages and fringe benefits, safe and sanitary working conditions, notification to employees of the minimum allowable compensation, and equivalent Federal employee classifications and wage rates. Under  41 U.S.C.6707(d), service contracts maynot exceed 5 years.

    22.1002-2 Wage determinations based on prevailing rates.

    Contractors performing on service contracts in excess of $2,500 to which no predecessor contractor’s collective bargaining agreement applies shall pay their employees at least the wages and fringe benefits found by the Department of Labor to prevail in the locality or, in the absence of a wage determination, the minimum wage set forth in the Fair Labor Standards Act.”

    Read on in FAR Subpart 22.10…

     

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