joel hoffman

Is this an established IDC or are you trying to establish a pool of A-E's? What is the purpose of the pricing action? Are you trying to establish fixed rates for the A-E in the initial competition or is this specific pricing for a task order? If for a task order, are you asking about evaluating an existing List of Labor Rates? For instance, if you are negotiating pricing for a specific task order, then the most important first step is having a thorough understanding of the scope of the services to be rendered. You must also have an understanding of any statutory restrictions upon the pricing for preparation of plans and specifications, support tasks, etc.You must have a project budget to base the the scope of design upon. If your agency has specific procedures for A-E contracting, you should follow those. The Corps of Engineers do a lot of A-E contracting. I can recommend reviewing their A-E contracting procedures in Engineer Pamphlet 715-1-7 Architect Engineer Contracting in USACE. Chapter 4 discusses the negotiation process. Appendix M is also helpful. You specifically asked about how to determine if the prices offered based on the "List of Labor Rates" are fair and reasonable. Assuming that the rates are already fixed, you must be able to determine the scope of the design services to be performed. Do you have a team available that can do this? Your explanation of the scenario is too vague to explain the process that would be applicable to your situation. You can find EP 715-1-7 at http://140.194.76.12.../EP_715-1-7.pdf

napolik, the problem isn't with computers, per se. The biggest problem problem seems to be with the tail waggfing the dog - the standardized contracting software systems and those deciding how much or how little flexibility to allow. They didnt think of every scenario or they seem to have little hands on contract administration experience. Such systems should have effective "criteria change request" procedures.

Happy, I think Tipphill checked out of this thread long ago.

I'm just guessing, but the firm offering a $0 cost to construct the ditches, probably just wants to use the excavated material on another project somewhere on or off the base. I'm guessing that it has little or no idea that at least some of the soils may be or are contaminated with fuels, lubricant or other regulated hazardous wastes or what the possible consequences of using such soils are. The whole scenario looks a little strange to me. Unfortunately, having been a DoD civil engineer with previous Air Force base CE experience, experience as a consulting engineer and experience on many previous airfield and horizontal construction projects over the years, I am aware of all sorts of possible complications for such an effort. Excavating "a 'trench' around the flight line and runways" might violate DoD construction standards for airfield clearance and safety. It might well also kick in national and local stormwater pollution control run-off requirements under NEPA or other laws. If there are wetlands involved ("aleviating recurring flooding" is the apparent purpose), additional laws and regulations kick in. Then, the above mentioned RCRA or other laws and regulations concerning contaminated soils may be applicable. Unfortunately, such seemingly simple projects often get military installations or private owners into deep trouble with regulatory agencies. We don't know what type of acquisition method is being used or if any of the above mentioned complications are present. I am pretty sure that this began as some type of acquisition process under the FAR, where the installation "solicited offers" to "construct a trench around the flight line and runways in order to alleviate recurring flooding."

Don, I agree with you. My initial point was not to totally rely on the definition at 2.101 because there is at least one exception (at DFARS 201.104). For instance, I worked on a Defense program that was totally funded by the Saudi Government. The Saudis also funded all direct costs for the Corps of Engineers and its employees to manage the program. I think that Don has introduced a twist into some type of procurement that is already underway in this case, which did not contemplate a barter arrangement. Only ONE of the firms proposed a barter arrangement with its offer. Does that now make the acquisition exempt from the FAR after proposals/offers/quotes were received?. I don't think so, here. The firms responded to an RFP of some sort to perform a service (or construction?) to construct a trench around the flight line and runways in order to alleviate recurring flooding. Some type of selection or award process is apparently underway. If the scenario is applicable under the procurement method being used , I believe that it would behoove the government to conduct discussions and introduce additional requirements if there is a good chance that the soil to be excavated is contaminated. The solicitation may also have to be amended to allow the excavated material to be removed from the base with certain conditions appluied to comply with RCRA or other applicable laws.. If this is other than an RFP, the current acquisition might have to be cancelled and fixed. We don't know what method is being used. I personally believe that some action is required anyway - perhaps at least for soils in certain areas that may be associated with runoff from aviation fuel or lubricants. If some of the soil is contaminated (say around the aircraft parking apron areas), the government is not allowed to simply spread the contaminated soil or simply remove it to an unregulated area or simply allow it to be taken off-base for use on some other project without complying with RCRA. We also don't know the impact on the $0 offer, if the government notifies the industry of the potential for contamination and/or allows it to be removed and/or requires additional measures to comply with RCRA. Finally, debriefings might be required, depending upon the type of acquisition method being used.

Don, for application of the FAR to DoD activities, don't hang your hat solely on the definition at FAR 1.104. See, for instance, DFARS 201.104 Applicability. "The FAR and the Defense Federal Acquisition Regulation Supplement (DFARS) also apply to purchases and contracts by DoD contracting activities made in support of foreign military sales or North Atlantic Treaty Organization cooperative projects without regard to the nature or sources of funds obligated, unless otherwise specified in this regulation." See SUBPART 225.73--ACQUISITIONS FOR FOREIGN MILITARY SALES and PGI 225.73 for implementation. So - is it possible, since "It has consistently been [GAO's] view that a mixed transaction that includes the delivery of goods or services of more than de minimis value to the government is a contract for the procurement of property or services within the meaning of CICA", that such procurements are subject to the FAR?.

That may be true but Tipphill stated "we are unsure of the condition of the soil and don't want to be liable for the unauthorized movement of any hazardous materials" and further stated "...the $0 priced offer is very attractive to the customer" and "Any advice would be appreciated." It appears to me that "the customer" may not totally be aware of their responsibilities or the potential criminal and civil liabilities under the environmental laws and regulations. Otherwise, they would have tested the material and/or have described how to handle it and where to put it in their solicitation. And they might not have been so eager to simply allow the contractor to haul off the material That is the impression I was left with. Hopefully, Tiphill will heed the advice provided here. I am aware of a local instance here in the Mobile area about 10-15 years ago where a trucking company dumped contaminated soil on a lot that was later used to construct a Motel. Once the contaminated was discovetred, the EPA went back to both the hauler and the original owners of the soil for damages and remediation. One cannot escape liability simply by getting the hauler to indemnify them of any liability.

Vern, I generally agree with those statements. If the government is aware of or suspects contamination, it should inform proposers. If the soil is contaminated, the contract should require treatment before being used or taken somewhere else; or it should require removal to a licensed landfill or be properly stored. It may well become a big deal if it is simply removed and used elsewhere or simply disposed of. For instance, one cant just dump it in a hole on base. The base needs to comply with statutes applicable to hazardous waste.

1. Did the government test this material for contamination? 2. Did you inform industry of the actual or potential contamination of the soils? 3. I'm highly certain from previous experience on excavations of contaminated soils that you can't simply excavate and dump contaminated soils elaswhere around the base. Brian's idea isnt legal - but confirm that with competent counsel. 4. I'm highly certain that you can't simply let a contractor or any party cart off contaminated soils from the base to be deposited somewhere else unless they are going to be taken to a licensed hardardous waste landfill or to a soil treatment facility. Don't think for a moment that simply getting somebody to indemnify the government or the persons responsible for providing contaminated soil will save the government from potenmtial liability. 5. The Government will not defend employees accused of violating criminal statutes - that I learned from the guys at Aberdeen/Edgewood, as described above. They had to hire their own attornies, even though they were acting in their official capacities. 6. Don't fool around - get competent (environmental) legal counsel on this!

That won't work as described.

Definitely discuss this with your legal office. I don't think that the Government, as the source of polluted soil, can escape liability for contaminated soils under the Resource Conservation and Recovery Act (RCRA) but the environmental law experts in DoD should be able to tell you. Simply transferring polluted soil to another site - which then becomes polluted - may be worse than leaving it alone. If your lawyers don't know, make sure that they ask someone who does. 20 years ago or so, a high level civil service employee from Aberdeen Proving Grounds or Edgewood Arsenal told an audience at a conference how he and some others were criminally procescuted and convicted as felons under RCRA or other environmental laws - they spent time in prison. They were held responsible for not cleaning up leaking storage containers of hazardous waste or leaking process lines. I don't remember the details but they claimed that they didnt even know about the pollutants. I'm not sure that you can simply waste contaminated soil on a military installation, either. If you move it, you might have to clean it up or haul it to a licensed hazardous waste disposal site. Serious stuff.

As you too have speculated, I'm also not thinking that this action would be within the scope of the contract as originally contemplated. Accepting an option is a unilateral right of the Government. I'm sure that the parties - especially the task order proposers - contemplated that the 2nd year option would be a follow-on to the first year option for pricing purposes, which would not include demobilizing personnel and resources, then reconstituting a workforce and re-mobilizing it. So, I don't think that one can "exercise the option" unilaterally. This would seem to require the agreement of the contractor and would be out of scope. If the pricing of the second year "option" would change due to the delay, then it would seem to be the equivalent of an up-priced option. I also don't think that this is a logical follow-on action to justify going to only to the current task holder to avoid fair opportunity..

Vern, it appears to me that the PCO you recommend telling off agrees with you regarding not being able to extend the performance period with the FY 12 funds.

Thanks, K. It appears to me that the problem is in knowing which government acquired server will be used for the LSC VoIP System upgrade because the customer doesn't don't know if they can provide the more expensive server... I don't know if there is a price difference for the upgrade itself between the two servers or if the price difference only involves the government furnished server. Am I off in left field? I would think that one can get a good estimate of the price for the servers. The question then is how much does it cost to install the upgrade on the more expensive server. You can obtain alternate prices from each firm for installing the LSC VoIP System upgrade on either one of the two servers Then tell the proposers that the government will select the upgrade and server that will fit within the budget. You decide and state how important price is vs the non-price factors in the competition.

The IG offices certainly aren't the only ones who are fallible. I've seen some very badly botched investigations by the Office of Special Investigations (AF) and the Criminal Investigation Command (Army). In one case, the investigators interfered with and ruined our chances of recovery of over $700,000 under TINA "innacurate" cost or pricing data. In another case, the investigator ruined the career and reputation of a very good and innocent project manager, who was finally vindicated a couple of years later - after having to hire a lawyer and a private investigator to clear his name. The problem is that they often seem to be incompetent in matters of government contract administration or contract law.

Just to be clear - you are referring to an option for an extension of the contract, correct? If so, yes it is common. However, as stated above, if the contract language somehow provides for a minimum order obligation for the future year option, that would be different.

I'm trying to understand your customer's objectives. Would you please clarify, as it may make a difference as to the approach? Are you saying: The customer has developed 2 "solutions" (either something on one of two existing servers or something on a new servver??)? Are they sure that there are only two solutions or is it because the two firms provide their own solution? Does each of the two small business firms provide only one of the two solutions or can either firm provide one or both solutions? Are you saying that the customer prefers the more expensive solution that only one firm can provide if they can afford it? If so, why (what is the advantage that the customer would describe)? Thanks. Are you buying a server or something else?

Criminy, I don't know what your apparent trepidation is with speaking to the ethics officer. Do you work for a DoD component? The FAR tends to concentrate on procurement integrity. There are other regulations which may cover post employment restrictions. You can do an Internet search for example. Since I'm not working in a Corps District Office, here is one that I found in about 30 seconds. http://www.turbotap....ng_the_Military. Try several sites to distinguish between military/civilian and DoD/non-DOD rules. I imagine that the JAG Office has some material covering post employment restrictions, as a DoD employee. The simplest explanation is that if you didnt have any dealings with a firm while working for the government, you dont have to worry about working for them. If you did have dealings with them, you better discuss it with your ethics officer. If I was still working full time, I'd walk downstairs to the Office of Counsel or call the personnel office and ask for the applicable regulations or statutory restrictions.. Its not rocket science. .

Since you are in Contracting, I know that you must be subject to ethics training. So contact the office that trains you for "one" version of an answer to a specific question. Vern gave you a citation for the FAR process. There are probably agency ethics/conflict of interest regulations in addition to the FAR cites that Vern provided. Army certainly has them. As a civl service retiree, my former office provides a monthly ethics column in its Bulletin that I receive in the mail.

Do you have an ethics counselor or attorney? They can answer specific questions. "Is it possible to apply to other contractors while employed as a fed? Like for instance (dramatic example), if you worked for NASA, but applied for a company that studied the characteristics of tree sap in Oregon, would that be ok" If you didnt award the contract, participate in the selection of the contractor or administer the contract, what would be the conflict of interest?

Desparado, did you read the Decision that Carl referred to above? Do you interpret that to mean that the agency must provide the RFQ to ANY contractor on ANY GSA Schedule?

I agree.

If you are referring to mixing FFP construction with CPFF CLINS, see FAR 36.208: "36.208 -- Concurrent Performance of Firm-Fixed-Price and Other Types of Construction Contracts. In view of potential labor and administrative problems, cost-plus-fixed-fee, price-incentive, or other types of contracts with cost variation or cost adjustment features shall not be permitted concurrently, at the same work site, with firm-fixed-price, lump sum, or unit price contracts except with the prior approval of the head of the contracting activity." The DOD Chemical Demilitarization Program did it on several very large contracts about 15 years ago. In my opinion, it was very messy. You'd have to be very careful in how you describe the CLINS and how you instruct firms to allocate the various management, overhead and other support costs.

Brian, you can read about CPPC and concerns, as well as devising means and methods to avoid it, dating nearly back to the beginning of US Government contracting, at http://www.asbca.mil...3 PUBLISHED.pdf

I agree with Don.