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joel hoffman

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Everything posted by joel hoffman

  1. What did the solicitation say about price evaluation? You said this is a solicitation for commercial services. Is it an RFQ? If it were a part 15 RFP, I'd suggest either discussions to discuss the alternate approach that I mentioned above then amend the solicitation and request revised proposals or - if nothing else needs to be discussed, you might consider skipping the discussions, amend the solicitation and request revised proposals. For commercial services, using a commercial acquisition approach, I suppose you can do something similar. Someone else may have some ideas.
  2. Based upon your description of travel, it appears to be indeterminate and that there would be no way to evaluate it, let alone compare NTE prices. Provide a plugged NTE estimated amount and state that it might change as needed, subject to availability of funding. It would also appear the the Government would have to order or at least approve travel during performance(?)
  3. Did the solicitation advise from where and whereto the travel will occur and for what possible purposes? If it is undefinable, how can anyone provide a meaningful or realistic NTE amount and how could anyone evaluate anything?
  4. Because you said that Option 1 is the most important to the Government. "The Contracting Officer shall evaluate all bids on the basis of the same additive or deductive items" . Firm B has the lowest awardable price for base plus option 1. Firm B "(o)ffers the lowest aggregate amount for the first or base bid item, plus (in the order stated in the list of priorities in the bid schedule) those additive or deductive items that provide the most features within the funds determined available."
  5. Yes, I believe so. The Contracting Officer will use the list of priorities in the bid schedule only to determine the low offeror (bidder). Firm B is the lower bidder for the base bid plus Additive No. 1, which cannot be awarded to Firm A because its bid for that combination exceeds the funds available for award.
  6. ndean, I don't know if you edited your original post to make it clearer, but it now appears to me that you aren't short-listing or pre-qualifying proposers prior to phase 3 receipt of full proposals and price. OK.
  7. In thinking a little bit more, if there can be a 2 step IFB process in FAR 14, why couldnt there be a 2 step RFP process under Part 15,? There isn't one that I know of other than the multi-step advisory process. The competitive negotiations statutory language doesnt mention other phased procedures, to my recollection. The multi-step advisory process would seem to work for OCI issues - at least for those who respond to the presolicitation notice.
  8. I think that a decision to release the info when the tech component doesnt want to is beyond the function or responsibility of the Contracting Officer - unless the KO is the one deciding that it shouldn't be released. The organization that owns or controls the data should be able to say "NO".
  9. Hutch, The specific 2 multi-phase procedures that I can think of in Parts 14 and 15 are the multi-step advisory process in FAR 15.202 and the 2 step sealed bid method in FAR 14.5. But note that the multi-step advisory process still allows those firms not considered quaified or technically competitive to submit proposals in the subsequent source selection. One can go through the necessary legal steps to limit competition to less than full and open and I suppopse one can pre-qualify firms to participate, such as in 236.272 for construction. One can use the various GSA or other government-wide schedules to narrow down firms. You said you are refering to Parts 14 or 15. Once in a source selection, price must also be considered as a factor. CICA requires (I have a case in my hotel room in California but I'm in Washington State today) that price be a meaningful factor in every source selection. FAR 15.304 ( c)(1) requires that price be evaluated factor in every source selection. So, unless using some approved pre-qualification procedure, I believe that price must be submitted, evaluated and considered in the selection decision or in a decision to eliminate firms and continue to negotiate with or request further proposals from the remaining firms, using a competitive range procedure. There are some restrictions, plus case law on qualifications factors that are in effect Responsibility factors but I'm not an expert in that area. I certainly woul;d think that one could use the multi-step advisory process to request and evaluate Organizational Conflict of Interest info for specific supply or services acquisitions. I have to go to work but will think further on this...
  10. Isn't this a technical proponent decision rather than a KO decision?
  11. Every once in awhile, I see people in this forum mention that, hey let's just use a 2 phase method like that in FAR 36.3. It's just not that simple. The 2 phase D-B process was implemented for Federal Design-Build acquisitions as a result of righteous complaints by the U.S. design and construction industry to Congress over ruinously expensive design-build acquisition procedures being used by the Corps of Engineers, the GSA, NASA, NAVFAC, etc. Those gripes concerned 1) unmanageable and unreimbursed costs and resources to propose on design-build acquisitions and 2) the related risk of not knowing how many other firms were bidding/proposing for a D-B contract. For IFB's the 2 step sealed bid method in FAR 14.5 was being used. For RFP's, the DoD was using the one step D-B proposal method under 10 USC 2862. Both of those methods required extensive effort and cost to prepare design submittals. In those methods, firms have little or no knowledge of how many other firms they are competing against or their chances of winning the contract until after investing relatively high, unreimbursed proposal development costs and resources. It took almost 5 years of work by industry groups and government to get Congress to agree and implement the 2 Phase D-B method in FAR 36.3 (early 2002 - end of 2006). Unfortunately, there are many in government who are concerned that, in using the 2 phase D-B method, we are "limiting competition". There are many in government that have no clue or empathy for industry's point of view. There are many who feel that "it means more work" for the government to conduct 2 separate proposal evaluations.. The 2 phase design-build process was never intended to be used for all types of acquisitions.. It was developed for the specific problems of the design and construction industry. At any rate, I did offer an alternative way to implement ndean's "three phase process" SORRY ABOUT THE SOAPBOX!
  12. Carl, ndean didnt explain when he/she would request price proposals. However - you identified a better approach in my estimation. Why can't ndean simply use the multi-step advisory process in FAR 15.202, using a presolicitation notice "complete with the SOW, L&M, etc." ? If so, ndean could request that interested firms submit the following.within 21 days of the Notice: - Complete OCI package - Minimal Technical Proposal which only shows they meet the must haves of the requirement (essentially a capabilities statement). - Evidence of an approved accounting system capable of attaining Government cost type contracts. The Government would evaluate the information and then advise each firm if it thinks they meet the minimum requirements and also whether or not they would be considered to be a viable competitor (Just follow the steps in 15.202). Of course, anyone could still propose in response to the subsequent RFP including firms who didnt initially respond. If one literally follows the instructions in 15.502, we aren't supposed to ask for the same information in the subsequent solicitation. However, if any other firms respond only to the RFP and not to the pre-solicitation notice, the government would have to have enough info to determine if there is an organizational conflict of interest, .So, I would recommend ignoring the literal restriction on asking for the same info in the solicitation, if it concerns OCI matters. I don't think it would kill the firms that responded initially to re-submit the information... What do you think?
  13. hutch, in addition to what I said above, the agency must evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. If you are comparing your proposed "phase 1" process to phase 1 of a 2 phase D-B process, neither process is a "competitive range determination." A competitive range determination follows an evaluation of both non-price and price proposals under FAR 15.305 (a). In 2 phase DB, the government conducts Phase 1 in accordance with FAR 36.303-1. In DB phase 1, the government only evaluates DB qualification proposals to select "the most highly qualified offerors", not to exceed a pre-determined/stated maximum number. This is a "short-listing" process, not a "competitive range" determination. According to a GAO decision which I don't have access to on TDY, the agency may communicate with firms to seek minor corrections to phase 1 D-B proposals. However, in Phase 1, the government doesn't necessarily have to follow the Part 15 procedures for discussions.. We are only evaluating qualifications - no design - no price. After short-listing, the government requests phase-two D-B proposals, including technical and price proposals from .only those short-listed firms. Per FAR 36.303-2, The government prepares and conducts a DB phase 2 in accordance with FAR Part 15. If discussions are necessary, the government "establishes a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency, pursuant to paragraph (c )(2) of that section. This is the same process as for other Part 15 competitive negotiations. Bottom line is that there is a clear distinction between Phase 1 for D-B and a competitive range determination. In phase 1 of a D-B acquisition, the "short-list" consists of a pre-determined maximum number of "the most highly qualified offerors" to request technical and cost proposals from in phase 2. A "competitive range determination" is for the purpose of determining who to conduct discussions with after evaluating both non-price and price proposals. The competitive range consists of "all of the most highly rated proposals", unless that number is reduced for efficiency.
  14. ndean, in what phase do offerors submit a price proposal? Is it in Phase 1? hutch_05, how can you use the 2 Phase Design-Build Selection procedures in FAR 36.3 as a starting point for a 3 phase (services?) source selection? The 2 Phase design-Build selection procedures are specifically authorized only for design-build construction under 10 U.S.C. 2305a or 41 U.S.C. 253m and covered in FAR 36.1 and 36.3. This was part of the Cohen-Clinger Act,(National Defense Authorization Act for Fiscal Year 1996, which incorporated the Federal Acquisition Reform Act of 1996). It is found in DIVISION D, TITLE XLI, Section 4105. These procedures dont authorize deviations or exceptions from standartd acquisition requirements for any other type of acquisitions. Carl, the multi-step advisory process in FAR 15.202 is just that - an advisory process. It isn't an elimination process. "( The agency shall evaluate all responses in accordance with the criteria stated in the notice, and shall advise each respondent in writing either that it will be invited to participate in the resultant acquisition or, based on the information submitted, that it is unlikely to be a viable competitor. The agency shall advise respondents considered not to be viable competitors of the general basis for that opinion. The agency shall inform all respondents that, notwithstanding the advice provided by the Government in response to their submissions, they may participate in the resultant acquisition."
  15. I will caveat this by saying that I don't know what this contract is for. However, the monthly(?) fee payment scheme appears to me to disincentize reducing costs and appears to incentivize increasing costs of performance. The more costs incurred the earlier fee will be paid out. So, this isn't a legal objection, it is a management objection. Is there a way to measure the value of performance provided? Can you base the interim payment of fee upon the value being provided? In a cost type construction contract, we can use earned value (budgeted cost of the work performed). Of course this requires that performance be managed...
  16. Look - is the problem a matter of establishing that the firm is offering a reasonable price or whether or not the service itself is commercial.? I suspect it is the former. For 6 to apply, it appears that the service provider would be able to show established prices for the service or that it can be determined from other sources that the price is fair and reasonable and meet the buyers expectations or requirements FAR 2.101 under the definition of a commercial item at (6) (ii) says “Market prices” means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain AND that can be substantiated through competition or from sources independent of the offerors (emphasis added). If the service itself is a commecial type, then the sub should be able to provide catalog prcing and a history of actual prices under (6) (i) or prices should be able to be substantiated either through competition or from independant sources of pricing. This isn't an all inclusive explanation. .
  17. I'm curious what difference it makes for this particular service. Aside from that, why is the sub claiming definition (6)?
  18. In addition to what I said above, you can always voice your concerns to the Contractor and advise that you expect it to inspect that person's work and that you will avail the government of all of its rights under the Inspection clause, should the employee be deemed less than competent during performance.
  19. I will take a bite at this one. I'm sure that someone else can chime in and correct me if I'm wrong. Is this a contract for services? If the contract contains minimum qualifications contractor employees are required to have (skills, education, experience, etc...) and the employee meets those qualifications on paper, you might have to wait until the employee performs the service to object. If the employee doesn't meet the requirements under actual performance and the work doesn't conform to the contract requirements, I would think that you can reject the (services?), pursuant to the clause 52.246-6 -- Inspection -- Time-and-Material and Labor-Hour. The Contractor must also inspect the work under this clause. If this were a construction contract, then the clause 52.236-5, Material and Workmanship, allows the KO to require removal of any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable. I would say that the KO could reject somebody that he/she determines wouldn't be competent, assuming that there is a valid basis for the objection. "(c ) All work under this contract shall be performed in a skillful and workmanlike manner. The Contracting Officer may require, in writing, that the Contractor remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable." I will admit that I'm not an expert in administration of service contracts. But the contract should contain some type of quality standards - especially if it as a time and material type. What controls quality of performance or resasonabloe amount of time spent performing a task under T&M? Standards in the Statement of Work?
  20. I'm not sure that you still aren't clear. You first said you have been awarde an "FFP FMS replenishment contract". Then you say you are "expected to get three quotes" for quantity one. Then you note that "this is a requirements contract". Can you please explain more clearly what type of a contract this is and what 'FMS' stands for? It appears to be an indefinite-quantity contract. Okay, so maybe it has fixed-price line items. But then you say that you must go out and obtain quotes. I'm confused. But that isn't rare, either.
  21. Just got home from CA and tuned in. I would have answered this as "yes", even without Vern's cite above. Note that the Contractor doesn't necessarily have to be negligent or at fault to be responsible for repairing damage to the work. See Construction Claims Deskbook, Section 10.3, "Destruction of Work" on page 118 in at: http://books.google....work%22&f=false Vern, I found this in the Construction Claims Deskbook. at the URL cited above. Under Section 3.10, "Contractor's Risk of Loss" on page 42, it states that "the risk assumed by a contractor for damages or costs incurred because of an Act of God extends only to work that was within the original scope of the contract. For instance when a contrasctor alters or repairs an existing structure its risk and consequence of loss are limited to the work covered by the contract, not the entire structure on which the contractor is performing work" (Footnote 52: See H.G. Chambliss, ASBCA No. 5138, 59-1 B.C.A., (CCH) ¶ 2059, 1959).
  22. Vern, I agree with you except that I am not certain about your last point. I didnt get a chance to read the case law cited in Nash and Cibinic or do further research as to whether the contractor is fully responsible for damage to existing buildings within its possession. That's why I agree that mrbatesville needs to consult an attorney who can research that point. But - we dont know if the roof of the building has also been replaced under the renovation contract, so that point may be moot. EDIT: 21 JULY 2012: See my post #21 on next page. See generally, discussion concerning this topic in Construction Claims Deskbook at : http://books.google....work%22&f=false
  23. mrbatesville, did you get enough info to decide what to do? There is plenty of information for your lawyer to delve into. I think it would be unwise to take the route you suggested, without checking with a competent attorney - who either is familiar with the cited clauses or who will investigate the information in the cited reference. By the way, if anyone is contracting for construction, they really need to become familiar with the construction contract clauses that have been established over the years to allocate risk. Another reason to not take shortcuts and try to treat construction as a "commercial item" acquisition.
  24. Carl, Clause 52.236-9 is a clause that is used to cover contractor caused damage to existing site improvements. Example, contractor's equipment damages, utilities. Example: contractor's equipment damages trees. Example: contractor's equipment cracks sidewalks. This is not an uncommon problem. Example: contractor's backhoe ruptures a marked gas line. I've run into each of the above examples, both on Government construction and outside construction jobs. We always included similar clauses in our private and municpal contracts I was taught early on as a consultant and as a city engineer to perform a condition survey prior to construction, including mapping every nearby fence or landscaping, map and mark every crack in sidewalks, every nicked tree, every broken limb, etc. on private property adjacent to our construction sites. We had to mark every utility on, near or running along the construction site. "Check Before You Dig" is a huge campaign in every city and is a constant problem. Neighbors were often trying to get a new sidewalk or fence, landscaping, etc. - whether warranted or not. Having said that - that clause has no application to the instant situation. I mentioned Acts of God and severe weather as excusable delays for time extensions when such cause delays to completion, pursuant to the Defaults Clause. That clause provides grounds for a time extension under those certain conditions. Other clauses might allocate cost risk but not time. For instance, a government directed or constructive suspension of work for an unreasonable period provides for a cost adjustment, but no time extension. The defaults clause is used to grant the associated time extension under such suspensions. Thus, for Acts of God or unusually severe weather that topples a tree onto the roof of a building under construction, the Permits and Responsibilities clause (probably) would allocate repair cost risk to the contractor but the Defaults clause would provide for an excusable delay and no cost time extension to repair the building. Check with your lawyer.
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