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Everything posted by joel hoffman
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Fed seeking private sector employment
joel hoffman replied to Almond2020's topic in Contracting Workforce
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? -
GSA eBuy RFQ -- Limited to SIN Vendirs?
joel hoffman replied to ji20874's topic in Schedules, GWACS, MACs, IDIQs
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? -
Can Task Order Have Multipe Contract Type CLINS
joel hoffman replied to Username's topic in Contract Award Process
I agree. -
Can Task Order Have Multipe Contract Type CLINS
joel hoffman replied to Username's topic in Contract Award Process
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
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I agree with Don.
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Would you mind describing what type of work the contract is for? Also, is the Government implementing a formal EVM system, requiring validation, including an integrated baseline review? Various forms of earned value management systems are commonly used by industry and I know by large construction contractors to manage their own internal work activities, budgets, productivity, etc. - even on their fixed price contracts. The concepts of EVMS aren't that complex. The complexity arises when the government requires a "formal EVMS"program, with their own prescribed procedures including "validation", which is a very expensive undertaking. Before bilaterally agreeing to ANYTHING, I highly encourage you to heed Vern's advice.
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Income from Data Produced Under a Government Contract
joel hoffman replied to ktr1999's topic in Contract Administration
Vern Edwards said: "My advice: Sign off Wifcon and go see your company's attorney" . Good advice, We don't know all the contract requirements or all the facts. As to the language of the clause 52.227-14 RIGHTS IN DATA – GENERAL (JUN 1987), it, by itself, doesn't prohibit the contractor from "using" the information for its own purposes.See 27.403 for policy requiring the contract to describe terms defining the rights of government and contractor. If the government intends to restrict the rights of the contractor to use something developed under the contract, it should use additional clauses or contract language to do that. As an example, our design-build construction contracts generally include the DFARS clause 252.227-7022 Government Rights (Unlimited), to allow the government to re-use the designs furnished under the contract. However, if we want exclusive rights to a special design, such as a monument or other unique works, we would use 252.227-7023 Drawings and Other Data to Become Property of Government. Under that clause, the contractor agrees not to assert or authorize others to assert any rights nor establish any claim under the design patent or copyright laws. I believe that we would also use separate language to make it clear that the contractor can't otherwise re-use the design, but I'd have to discuss that with our attornies to see if the clause accomplishes that, by itself. -
Non-Binding Estimate
joel hoffman replied to 2112LLP's topic in Contract Pricing Including CAS & Allowable Costs
A binding contract requires an offer and an acceptance. There has been no offer from the company, which made it clear that it was only a non-binding estimate, based upon the Government's specific instructions. This looks similar to situations where the government develops "rough orders of magtinude" or "ROM" estimates to help support follow-on contracting actions. -
Income from Data Produced Under a Government Contract
joel hoffman replied to ktr1999's topic in Contract Administration
NC4, I assume that all depends upon what the government's continuing rights to the website and contents are. The prime contract under which it was produced is apparently still on-going, too. I don't know. If legal and the parties agree on some arrangement, the subcontractor could turn over all a share or all of the monies received. The payment might go through a government office, which would then send it to the Treasury. I'm not familiar with the latest procedures for that, what with new fangled financial management systems, etc. Back "in the day", I received checks from contractors for various damages, made out to the Finance & Accounting Officer, who sent it on to the Treasury. A couple of years ago, American Airlines destroyed my gov't laptop but would directly reimburse the government. The contract for carrier was with me (my ticket). After threatening to sue them and bluffing them with various claims of federal offenses, they wrote me a check for several thousand dollars to replace the computer, accessories and software. I endorsed it over to the F&A Officer, who (I assume) effected a transfer to the Treasury. I was hoping that the government could use it to buy a replacement for me but they said it had to go straight to the Treasury. I should have just cashed the darned check to buy a replacement, myself. My local Dell computer store was selling the upgraded model that replaced the one I had just gotten new about 5 months before the incident. uggh! -
Income from Data Produced Under a Government Contract
joel hoffman replied to ktr1999's topic in Contract Administration
I believe that, as long as income is deposited to the Treasury under the "Miscellaneous Receipts" (General Fund) , then it is not considered augmentation of an agency's appropriation, because such receipts cannot be drawn out of the Treasury, except by an appropriation of law. (Source: Redbook, Volume II, Chapter 6, under discussion of Dispositions of Moneys Received, Miscellaneous Receipts). However, that doesnt answer the question... -
The taxpayers could probably save $85 billion alone by cancelling the low priority and nice-to-have items in the year-end buying spree.
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In addition to what Vern asked - which are valid questions - what do you mean by "all those dollars should go towards the subcontract goals?" Regardless of the threshold or the contract amount, the subcontracting plan itself only addresses goals concerning the planned subcontracting portion of the total contract amount. Is all the work in these mods to be subcontracted?
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Am I missing something here? Why is everyone getting wrapped around the axle over 19.702 (b )? That paragraph isnt applicable to this contract. There is a dollar threshold for revising the plan due to a modification. Whether it be $550k or $650k, the mod in question is only for $3k. I inferred that there are no subcontracting opportunities involved in the modification. Subcontracting goals are based upon the amount of subcontracting. There would obviously be no reason to adjust the Subcontracting Plan then. Here is the requirement for a revision to an existing plan from contract clause 52.219-9 -- Small Business Subcontracting Plan. "...(i) A contract may have no more than one plan. When a modification meets the criteria in 19.702 for a plan...the goals associated with the modification...shall be added to those in the existing subcontract plan." And here is the pertinent criteria for the plan with respect to a contract modification from FAR 19.702 "(a ) Except as stated in paragraph ( b ) of this section, Section 8(d) of the Small Business Act (15 U.S.C. 637(d)) imposes the following requirements regarding subcontracting with small businesses and small business subcontracting plans: (1) In negotiated acquisitions, each solicitation of offers to perform a contract or contract modification, that individually is expected to exceed $650,000 ($1.5 million for construction) and that has subcontracting possibilities, shall require the apparently successful offeror to submit an acceptable subcontracting plan. If the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer, the offeror will be ineligible for award. (2) In sealed bidding acquisitions, each invitation for bids to perform a contract or contract modification, that individually is expected to exceed $650,000 ($1.5 million for construction) and that has subcontracting possibilities, shall require the bidder selected for award to submit a subcontracting plan. If the selected bidder fails to submit a plan within the time limit prescribed by the contracting officer, the bidder will be ineligible for award."
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Have you asked the contractor to provide its timekeeping and billing practices?
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The question is: "If I add $0.15 plus per hours I think I am unjustly rewarding contractor ?" Just because DOL issues a revised WD increasing H&W Benefit by $0.15 cents per hour does not mean that you "must add $0.15 plus per hour". As I said above, the Contractor must show that there is an increased cost to obtain a price adjustment., As FAR 1006 (c ) (1) states: " contract prices or contract unit price labor rates are adjusted only to the extent that a contractor’s increases or decreases in applicable wages and fringe benefits are made to comply with the requirements set forth in the clauses at 52.222-43 (subparagraphs (d)(1), (2) and (3)), or 52.222-44 (subparagraphs ( C ) (1) and (2)). (For example, the prior year wage determination required a minimum wage rate of $4.00 per hour. The contractor actually paid $4.10. The new wage determination increases the minimum rate to $4.50. The contractor increases the rate actually paid to $4.75 per hour. The allowable price adjustment is $.40 per hour.)" I understand that service contracts may be quite different from construction contracts. However it is very common for construction contractors to pay more than the Davis-Bacon Act Wage Rates in order to compete for skilled labor. Often, new wage decisions have little or no effect on construction contractors' actual costs. Here, you suspect that the Contractor is already paying more than the SCA minimums. That isn't necessarily an unauthorized contingency. The firm may simply be paying more than the minimum. Make the Contractor justify any increase, which may range from nothing to a maximum of $0.15 per hour. Where did you get the $0.15 "plus" from? Any adjustment would exclude markups for G&A expenses, overhead or profit per the clause.
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Multiple Offers from One firm
joel hoffman replied to HoosierDaddy2002's topic in Contract Award Process
Hoosierdaddy (i love that name!), after reviewing your initial post, I wonder what the intent is of evaluating the "experience" of suppliers and how a firm would use multiple offers to optimise its proposals. Will you evaluate the equipment or materials themselves, the amount of experience a supplier hasp or what? You didn't mention evaluating past performance of the suppliers. Or is the firm interested in proposing various combinations of subs or brand name suppliers with corresponding prices? I could see such a strategy offering the government some trade off choices. I've been involved in a lot of construction RFP''s where we looked at key subcontractors and various electronic or mechanical alternative brands from the perspective of technical quality and experience/past performance. But we never simply looked at "experience" of key subs or suppliers. Are you looking at specific types of materials or equipment? Just curious how the draft RFP was structured and described under that subfactor. You said that you didn't think the firm's strategy was what you intended under that subfactor. Thanks. I will understand if you prefer not to elaborate here. However, if the firm's intended approach doesnt align with "how that sub-factor is written", you might want to re-consider the sub-factor and the evaluation criteria for it, as it might well cause confusion or other problems during the actual competition. For instance, how would you evaluate that firm's alternative proposals if what it is attempting doesn't align with the eval criteria or results in unintended results for the sub-factor. -
Researching, You said above that each item was affected by $100k. Now, you've introduced price ranges. I think you still mean that each unit will cost $100k more or $100k less or the absolute value of increases and decreases due to the change in the hardware item is $100k per unit. You dribble out additional information. Either you haven't told us everything or it may simply be that you don't understand the expression "If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events". You won't know the ultimate price until the government places an order or multiple orders ("the final price to be based on future event(s)"). There could be order(s) for up to ("a maximum quantity of") 15 units. Therefore, this seems to fit the criteria described above for "a dollar threshold" in FAR 108.1( c). I am assuming that the government can make multiple orders under an Indefinite Delivery/Indefinite Quantity contract.
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Multiple Offers from One firm
joel hoffman replied to HoosierDaddy2002's topic in Contract Award Process
No disagreement with that here. -
You said that the ID/IQ contract provides for the government to be able to purchase up to 15 pieces of some hardware and that the price of each piece has been changed by $100k. Was the change for only 1 unit or does it apply to the entire "ID/IQ table" quantity (whatever that means)? It would appear that the actual change would affect up to 15 units for a $1.5 effect in increased cost, "If the action establishes a maximum quantity of supplies or services to be acquired or establishes a ceiling price or establishes the final price to be based on future events". In this case, "future events" would appear to occur if the government purchases additional units, assuming that the "Table" price has changed for each one. I suppose I should also ask if some exception under FAR 15.403-1 applies (e.g., if these are commercial items)...
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Multiple Offers from One firm
joel hoffman replied to HoosierDaddy2002's topic in Contract Award Process
The Government is rarely accused of overcommunicating with industry now, is it? At any rate, if you provide an answer the specific question and/or a public clarification in the RFP, I suggest adding the word "conforming" to indicate that offerors may submit multiple, conforming offers and that they will be separately evaluated. -
"31.201-2 -- Determining Allowability. (a) A cost is allowable only when the cost complies with all of the following requirements: (1) Reasonableness. (2) Allocability. (3) Standards promulgated by the CAS Board, if applicable; otherwise, generally accepted accounting principles and practices appropriate to the circumstances. (4) Terms of the contract. (5) Any limitations set forth in this subpart. ( Certain cost principles in this subpart incorporate the measurement, assignment, and allocability rules of selected CAS and limit the allowability of costs to the amounts determined using the criteria in those selected standards. Only those CAS or portions of standards specifically made applicable by the cost principles in this subpart are mandatory unless the contract is CAS-covered (see Part 30). Business units that are not otherwise subject to these standards under a CAS clause are subject to the selected standards only for the purpose of determining allowability of costs on Government contracts. Including the selected standards in the cost principles does not subject the business unit to any other CAS rules and regulations. The applicability of the CAS rules and regulations is determined by the CAS clause, if any, in the contract and the requirements of the standards themselves. © When contractor accounting practices are inconsistent with this Subpart 31.2, costs resulting from such inconsistent practices in excess of the amount that would have resulted from using practices consistent with this subpart are unallowable. (d) A contractor is responsible for accounting for costs appropriately and for maintaining records, including supporting documentation, adequate to demonstrate that costs claimed have been incurred, are allocable to the contract, and comply with applicable cost principles in this subpart and agency supplements. The contracting officer may disallow all or part of a claimed cost that is inadequately supported. "31.201-3 -- Determining Reasonableness. (a) A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person in the conduct of competitive business. Reasonableness of specific costs must be examined with particular care in connection with firms or their separate divisions that may not be subject to effective competitive restraints. No presumption of reasonableness shall be attached to the incurrence of costs by a contractor. If an initial review of the facts results in a challenge of a specific cost by the contracting officer or the contracting officer’s representative, the burden of proof shall be upon the contractor to establish that such cost is reasonable. ( What is reasonable depends upon a variety of considerations and circumstances, including -- (1) Whether it is the type of cost generally recognized as ordinary and necessary for the conduct of the contractor’s business or the contract performance; (2) Generally accepted sound business practices, arm’s-length bargaining, and Federal and State laws and regulations; (3) The contractor’s responsibilities to the Government, other customers, the owners of the business, employees, and the public at large; and (4) Any significant deviations from the contractor’s established practices. 31.201-4 -- Determining Allocability. A cost is allocable if it is assignable or chargeable to one or more cost objectives on the basis of relative benefits received or other equitable relationship. Subject to the foregoing, a cost is allocable to a Government contract if it -- (a) Is incurred specifically for the contract...." I'm not arguing that a contractor can't establish a price for software license...