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joel hoffman

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Posts posted by joel hoffman

  1. Thanks, Jan. I couldnt find such a requirement in the FAR or GSAM. This is really more of a requirement to protect the interest of the contractor and its sub than that of the government. But definitely bring it to the attention of the government, which might be able to modify its requirement - or might not.

    Of course, not having such insurance might increase your firm's exposure to professional liability due to a sub's actions. Your firm might not be willing to assume this risk.

  2. I agree that this is a topic to dicuss with the Government if they want this firm as a subcontractor.

    However, could you clarify a couple of points?

    I am assuming that your agreement with GSA that requires insurance requirements to flow down refers to government required liability insurance. Is this a service contract or an A-E contract?

    Where you referring to a clause that requires you to have liability insurance? ...professional liability insurance? What is the clause? Just curious, thanks.

  3. Deefarrd, did the person explain what processes should or do apply to purchasing materials for such emergency surgeries? Are you questioning the legality of the Air Force Instruction? Do you know under what authority it was issued or are you just thinking that it appears to be illegal? Is it possible that the Air Force or DoD has approved some type of class waiver for such situations or that other statutory or regulatory authority might apply? Is there any documentation required to support the urgency of the acquisition?

    You said that you don't really see any other way and you didn't ask a question. What do you want to know? How is the actual purchasing done in such situations? I doubt that the Commander or doctor personally contacts a vendor and makes the purchase. Do they?

  4. Onmeld, I didnt have time earlier to respond to your other issue of unbalanced pricing. Although you didn't ask a question, you identified as a possible issue and provided an opinion that it isnt necessary to document why its ok to award to a firm with unbalanced pricing. You said: "The provisions of 52.215-1 f(8) however are discretionary and only go to rejection of the proposal (which in this case we want to award on). If there is an explanation regarding the unbalace I believe we are OK to award (an would be OK even if we did not document an explanation)."

    I don't necessarily agree that it "would be OK even if [you] did not document an explanation."

    Please see 15.404-1 -- Proposal Analysis Techniques, (g) Unbalanced pricing.

    Subparagraph (2) of this paragraph REQUIRES the KO to analyze prices to determine if they are unbalanced. OK, you've done that. However, once unbalanced prices are found (OK, you did find unbalancing here) the KO SHALL consider the following in making the source selection decision and in determining the competitive range, if conducting discussions:

    "...(2) [All offers with separately priced line items or subline items shall be analyzed to determine if the prices are unbalanced]. If cost or price analysis techniques indicate that an offer is unbalanced, the contracting officer shall --

    (i) Consider the risks to the Government associated with the unbalanced pricing in determining the competitive range and in making the source selection decision; and

    (ii) Consider whether award of the contract will result in paying unreasonably high prices for contract performance."

    Your KO SHALL "consider" the risks during the source selection and consider whether award will result in paying unreasonably high prices for contract performance. I believe that these considerations and resulting determinations or decisions should always be documented in the source selectiion documentation.

    In the event that there is a protest over unbalancing, I've seen (even in the last week or two in the WIFCON digest of protest decisions. See:(W.B. Construction and Sons, Inc., , B-405818; B-405818.2, January 4, 2012, which is summarized on WIFCON at http://wifcon.com/pd144042g.htm ) where the GAO or a Court sustained issues when the KO had no documentation of his/her considerations and reasoning and the GAO did not accept after the fact explanations of what the KO supposedly considered and determined during the competition.

    I'd also caution that, if this is a construction contract, in the event that the contractor defaults and the surety has to take over and complete the contract, the government can get into some serious trouble if it has overpaid the contractor due to unbalanced pricing or for other reasons. The surety normally must get by on the remaining unpaid contract balance from the government to complete the job, except for what extra losses and costs it can recover from the defaulted contractor. That is often like squeezing blood from a vampire's victim. I have seen cases over the years where the surety sued or claimed harm caused by owner negligence due to overpayments for overvalued work and the owner was required to reimburse the surety for those losses to help complete the remaining work. So, there may well be some risk to the government for unbalanced construction contract unit prices or for unbalanced lump sum prices in addition to the rather simple explanation provided in FAR 15.404-1. There is some discussion of unbalanced bidding in Nash and Cibinics' "Formation of Government Contracts" (mine is the Third Edition, which has been since updated).

    If this is an unbonded type contract, such as one for services or supplies, unbalanced pricing can increase the risk of total cost to the government for reasons beyond that explained in the FAR. If one overpays a contractor who later defaults, it will probably cost more than the remaining contract balance to get another firm to complete the defaulted contract effort.

    These are just some thoughts for you to consider.

  5. It should be obvious but I would advise the person(s) evaluating pricing to determine or at least estimate if and how the unacceptable technical aspects of each of the other 4 proposals affected those price proposals. For example, If you are soliciting the quality level of a Caddy and someone proposed a Buick or a Chevy, that firm's pricing wouldnt really be representative of the specified requirement, would it? My caveat to you in using the pricing from the technically unacceptable proposals for your price analysis would be to determine the relevancy of those other prices to the specified requirements for pricing comparisons and consider that in the price analysis.

    You said that the solicitation says that the price evaluation is conducted separately from the technical evaluation, which is common. Even so, the price evaluators should normally have access to the technical proposals to be able to determine whether the prices seem representative of the proposed technical proposal. They should probably also be able to learn what technical deficiencies were found in order to facilitate that evaluation. You apparently have enough information to determine that the technically acceptable proposal is unbalanced. The usual danger is technical evaluators being prejudiced by the pricing rather than the price evaluators being prejudiced by the technical aspects. In fact, someone normally has to put all this together to determine whether the proposed prices are fair and reasonable per discussion throughout 15.404 and 15.405.

  6. Its one thing to determine if a contractor has an adequate cost accounting system. From my experience, it would be sad if the government has to rely on contractor hired CPA's to review and verify incurred costs or even to review and/or audit proposals for new contracts or contract actions. There are differences between what are legitimate or legal accounting practices and what the cost principles and procedures in Part 31 and 31.2 allow that are often overlooked in proposals.

    Heck, the DCAA isnt even normally trained to spot these type cost duplications or non-allocable costs. For years, I had to provide the DCAA with standard pre-printed guidelines as part of my technical analysis input to the audit, identifying those points to address in auditing overhead and G&A rates. I'm not faulting the auditors because that is a specialized area but the DCAA as an Agency didnt pick up very well on construction contract auditing. I say that only because they require a lot of help from technical and cost analysts and they, as a group are often ignorant of the contractual cost aspects of proposals

  7. Is there any reason why an agency cannot require the contractor to provide a letter from a CPA stating whether the contractor's system is adequate? ...If the accountant is a Certified Public Accountant, why can't we accept his or her letter?

    Yes, see posts #6 and #7 abnove for a reason why one cannot just simply rely on a letter from a CPA stating whether the contractor's system is adequate. The CPA would have to show competency in that particular area.

  8. My client is not a small business. There are no further subcontracting opportunities in the work to be done by my client (assuming the prime doesn't come back to us again with a change directive that dramatically increases the scope of the work). Given that the prime didn't require us to submit a plan in the first place (even though it was in the contract T&Cs) and is only now demanding one at the conclusion of the project when there are no more sub-subcontracts to be awarded, it seems rather disingenuous to create some plan with goals that cannot practically be achieved since the all the work as already been sub-subcontracted out. Creating goals after all the work has been subbed out is somewhat like closing the barn door after all the horses have bolted. As far as state law is concerned and how a trier of fact might rule on my client's failure to submit a subcontracting plan after the fact, I am pretty confident that we'd be successful in arguing that the prime waived its right to enforce the clause by passively permitting the subcontractor to nearly complete the job without having submitted it. Principles of estoppel would likely also come into play for similar reasons and on the basis that a plan with subcontracting goals fails of its essential purpose when it isn't required until after all the sub work has already been completed or nearly completed. Finally, what could the prime's damages arising from this breach of contract (assuming failure to submit the plan is, in fact, a breach) possibly be when the prime has no liability for a sub's failure to submit a plan that was never required in the first place? Since damages are an essential element to a breach of contract action, and the prime would have none under the circumstances assuming that the CO does not require a plan from my client, I'm very confident that the prime would lose any arguments arising from breach of contract under state law.

    Nonetheless, I will take you advice and contact the CO on the project to confirm. Thanks for all your helpful advice in response to my inquiries.

    The clause states in part (taking the liberty to substitute "subcontractor" in place of "offeror"): "The subcontractor, upon request by the Contracting Officer [or Contractor, if that is applicable], shall submit and negotiate a subcontracting plan."

    The plan discusses "planned" subcontracting, right? The sub wasn't required or requested to submit a plan at subcontract award and wasn't requested to submit one while the mods were being issued. If the request came after there were no further subcontracting opportunities, as stated, then how can the sub be in non-compliance or breach?

  9. Unbelievable.

    ...Later that fall, the Corps further delayed performance and again faulted the contractor for the government caused delay, in addition to the delays caused by the notoriously harsh North Dakota winter.

    The Corps may as well have said to the contractor "We know our design was screwed up and as a result the site itself is dangerous, but make it work anyway and any delays resulting from our actions are your problem."

    Please note that my comments above concerning the "Equity Principle" were only in response to FAR Fetched's post above it. He/she said:

    "The Corps' message to Martin was "we want you to perform the additional work specified in the modifications, but you are still in default because the completion date (already passed) remains the same. Unreal."

    I wasn't addressing who is to blame for the actual delay in the instant case. I was addressing a situation where the government believes that a contractor is behind schedule due to its substandard performance and the government changes or adds work during that period. The government should add excusable but non-compensable performance time under the equity principle for the time necessary to perform the additional or changed work, as long as it doesn't further delay completion of the original work.

    According to the instant decision, the government was apparently responsible for the delays. In that event the delays would be not only excusable but compensable.

  10. The Corps' message to Martin was "we want you to perform the additional work specified in the modifications, but you are still in default because the completion date (already passed) remains the same."

    Unreal.

    Yes, from the perspective of reading the instant case, the government's position case appears to be "unreal". I do want to emphasize that this isn't the USACE's policy as an Army Command.

    For many years, I taught a principle in classes and in our District's policy that I learned while working for the Middle East Division of USACE in Saudi Arabia. It is called the "Equity Principle". That principle is an exception to the "leave them where you found them" principle if the government directs a change after the contract completion period, while a delinquent contractor is still working to complete the current contract work.

    The equity principle provides for an excusable, non-compensable time extension for change work directed after the completion date that will be, is being performed or was performed concurrently with other contract work for which the contractor would otherwise be charged liquidated damages due to its own fault. The Equity Principle essentially holds that the government should not take advantage of a firm because they are already late in completing the project. In addition, the contractor is not entitled to a compensable time extension for the concurrent period because it is already expending those type costs in completing the current contract work.

    If the contractor can show however, that the change increases its direct or indirect costs for the unchanged, incomplete work or if the change requires additional indirect costs, then it would be entitled to an adjustment for those additional costs.

  11. I'm curious why an undefinitized contract action (letter contract) is necessary to award a contract for 2 siteworks and the first building. Please explain what the status of the design is for those features of work and why some other course of contracting action isn't feasible. Thanks.

    Hey, as a minimum, you could award a fixed price contract for sitework on both sites then follow up with solicitations for the buildings. I'm relatively certain from what you said that the sitework could easily be split out from one or both designs. I could finalize notes on drawings within a day or two to denote the limits of the construction for a sitework only contract.

    Sitework could include clearing and grading or it could also include site utilities. It's not rocket science to break out such work from an ongoing design.

  12. joel, wouldn't we still need the design of the second building to be completed before the contractor can price its construction (either as a separately funded option or CLIN)?

    I thought that the excavation and site work design for the second building was finished. In that event, you could add this portion of the design for the second building - or what portion of the sitework is ready - to the solicitation for the first building, as a separately funded bid item. You would have to consider whether or not this would help expedite the availability of the site for constructing the second building, without slowing down the sitework for the first building.

    Fast-tracking sitework while the building is still under design can often shorten the overall construction time for a building project. That is a major advantage of fast-tracking on design-build projects. Sitework often takes much time and can push the subsequent building construction into inclement weather conditions (e.g., winter or rainy season). That, in turn, raises costs for cold weather construction. A head start on site work can reduce overall costs.

    Economy of scale by being able to simultaneously work two close or adjacent sites under the first contract might be achievable - or might not be economical. You can save one mob and demob, as well as the administrative time and expense of starting sitework on two separate contracts. You can also shorten the overall completion time on the second contract. That results in less site overhead. I can't state for certain without knowing the nature of the 2 siteworks or the scope.

    If combining the 2 sitework efforts under one contract isn't doesn't provide any schedule advantage for the second project or slows down the sitework for the first project, then I'd agree with Vern that going out with a stand-alone sitework contract ahead of the building contract might be a good idea. Depends upon your reasons for expediting the 2nd sitework effort. A separate contract might involve additional fixed, overhead and mob/demob costs, though.

  13. We have a requirement to construct two buildings for two completely different uses on one piece of land. The buildings are not too far apart, so from an engineering standpoint, it would make sense to excavate the land at the same time for the construction of these two buildings to ensure that the excavation for one building does not undermine the area for the second building.

    The design for one of the buildings is almost complete, while it would take several more months to complete the design of the second building. To ensure that we stay on schedule, excavation needs to begin in a few months.

    Given that we have the design for one out of the two buildings and we know that we need to excavate the land for the construction of both buildings, what would be the best course of action to take (contractually)? (My KO is leaning towards a UCA to allow us to start excavation for both buildings and construction of one of the two buildings while we wait for the final design of the second building to definitize it.) Could excavation be considered a severable service?

    I am with the DoD and am new to construction contracting, so any assistance would be greatly appreciated.

    How about a separateLy funded option or CLIN in one contract?

  14. What did the POC say when you contacted her?

    Vern, I started to contact her on January 5th, out of curiosity. However, I don't use the program and am not one who is especially concerned about it one way or the other. I don't know whether or not the test program at 13.5 results in the best deal for both the taxpayer and the customer. I don't know what, if any, concerns that the policy makers and/or Congress had about the program. Once all the detailed posts here with various opinions and degrees of speculation started coming in, I realized that I apparently don't know enough about it to know what to ask her. Those that have a vested interest in the program (or their designated internal POC) should be able to call the POC, however.

    The folks at DoD are really just people. I've called them and corresponded with them before. I've even asked for and obtained archive background material from old DAR and FAR Cases from them for use in some current USACE policy initiatives. They are usually pretty friendly. If you aren't with DoD, they might refer you to the GSA POC. I've also called GSA points of contact listed in some FAR Cases. Sometimes they politely referred to the DAR Council rep or reps for certain FAR cases or other actions and sometimes directly answered my questions.

  15. What is correct "Notice Type" or "Type of Notice" to use for posting an A-E request for SF330's to FBO (combined synopsis/solicitation, presolicitation, special notice)?

    Sorry - I was babysitting grandchildren for my daughter yesterday, then got wrapped up with the 2012 BCS Title game for the rest of the day and night. ROLLLLLLLLLL TIDE!

    In addition to what Vern provided, please see FAR 5.205(d) and applicable supplements thereto:

    "(d) Architect-engineering services. Contracting officers must publish notices of intent to contract for architect-engineering services as follows:

    (1) Except when exempted by 5.202, contracting officers must transmit to the GPE a synopsis of each proposed contract action for which the total fee (including phases and options) is expected to exceed $25,000.

    (2) When the total fee is expected to exceed $15,000 but not exceed $25,000, the contracting officer must comply with 5.101(a)(2). When the proposed contract action is not required to be synopsized under paragraph (d)(1) of this section, the contracting officer must display a notice of the solicitation or a copy of the solicitation in a public place at the contracting office. Other optional publicizing methods are authorized in accordance with 5.101(B)."

    For Army Corps of Engineers' A-E Contracting, there is also a publication (Engineering Pamphlet 715-1-4) entitled "Competing for Architect-Engineer Contracts Awarded by the U.S. Army Corps of Engineeers". See page 4 for more discussion of the announcements, although some information may perhaps out of date (2004).

    http://140.194.76.129/publications/eng-pam...-1-4/entire.pdf

  16. With regard to FPDS-NG coding issues, for some lengthy period of time (I can't recall exactly how long nor exactly when, but it was on the order of many months approx. 1 year ago), data validation rules would not accept "Test Program" unless the acquisition's value exceeded $1M. My agency conducted many test program acquisitions > $100K (at the time) but < $1M under the test program but could not code them correctly. I always suspected it was a programmer's typo, simply adding an extra $0. I, and others, pointed this out to our agency, and in turn our Department's FPDS-NG POC, who notified GSA. GSA's response, in typical GSA fashion, was that it was a known problem and was scheduled to be fixed with the next release. I highly doubt any body went back to correct these records after GSA "fixed" the program.

    Just curious - has anyone here tried to contact the POC mentioned in the DOD memo and find out what really happened concerning non-renewal? Does Congress have concerns with it that DoD decided not to mess with it? Has anyone called the POC to explain the less than $1 million programming validation problem, which may have skewed the available data? Lots of speculation in this thread. Seems like asking the point of contact might yield some answers for those concerned about the expiration.

  17. Is it possible to issue an ID/IQ contract using SAP procedures? I have a requirement which is under $150k and the end user wants to be able to buy at least 100 widgets but no more than 500 widgets per year over a three year period. They are commerical items. Is there a better way to issue this without having to make 15 options or turning it into a large contract?

    Just a question: are there multiple manufacturers and/or suppliers? If so, would a BPA arrangement for competition work? Would that allow you to keep price competition fresh over a three year period?

    Does FAR 13.302-1 (b ) (1) restrict this?

    I don't think so. Did you read 12.207( c)? It discusses ID/IQ contracts for commercial items.

  18. Ok. Here's what it says:

    Where is the requirement to "keep original hard copy records for one year before we can shred them and rely completely on the electronic copy"?

    "(3) The contractor or subcontractor retains the original records for a minimum of one year after imaging to permit periodic validation of the imaging systems."

  19. ...we have already found evidence of mis-coding on what could be a pretty significant scale. As you said, shame on us.

    However, I can't believe for the life of me why no one questioned the tiny percentages of less than 1% reported in FPDS. That would be like a study that claims that only 1% of Americans shop at frickin' Wal-Mart. You'd have to be dense not to question the validity of the data before making a decision. It would have made more sense for the someone to at least ask the questions they are asking now in the referenced memorandum before throwing out the baby with the bath water. But that makes too much sense, sorry, I forgot. :lol: This is about the most dain bread thing I've seen in a while. At a time when the government is bleeding red ink, we are going to loosen the turniquit a little bit by making things more cumbersome, time consuming and therefore expensive. Brilliant!

    Our Agency for one HEAVILY relies on 13.5, so this is going to be a rather painful impact when we are already short handed. Maybe this is the higher up's way of "encouraging" greater use of GSA / FSS?

    Folks, if your agencies are under DoD, I suggest that all of you or someone in your agencies quickly contact the POC identified in Mr. Ginman's memo at:

    http://www.acq.osd.mil/dpap/policy/policyv...339-11-DPAP.pdf.

    If you are not under DoD, I also suggest contacting her ASAP to obtain the POC for non-Defense agencies (probably in GSA).

    The suspense for input to DoD is 27 January. DO something - don't just complain about possible mass mis-coding of acquisition methods.

  20. Does anyone have any information on why the test program in 13.5 was not extended or if they plan on extending it?

    Thanks

    Well...why not see the answers to both questions in the CURRENT thread at:

    http://www.wifcon.com/discussion/index.php...amp;#entry11936

    See specifically:

    http://www.acq.osd.mil/dpap/policy/policyv...339-11-DPAP.pdf

    Edit - Bob has also posted it today on the WIFCON Home page under "Rules and Tools"

  21. So you have a CPIF contract. The contractor did not do its repair work correctly and so had to do more work to correct the poor work...according to you there has been no loss, theft, damage, or destruction of the property and no government claim arising out of such. What happened was that the contractor did not do its work properly the first time ("trade error") and had to reperform part of the work to correct the poorly done work. So why do you think the contractor is correct?

    RIR, what does the contract REQUIRE the contractor to do with regard to workmanship, supervision, quality control and inspection of its work. And did the contractor comply with the contract requirements? Apparently, poor workmanship and lack of quality control and supervision caused major damage to at least one turbine. Is there any contract requirement for actions that could or would have prevented such damage had the contractor complied with the contract requirements?

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