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joel hoffman

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  1. The prime can require the new sub to submit this information to preserve a private right of action against its sub for defective pricing that causes an increase in its subcontract price. However, this subcontract has no relationship to the price that the government paid for the work, which is the ultimate purpose of the Truth in Negotiations Act. The contract price was already negotiated and established, prior to this action being taken to replace the defaulted sub. The contract price was or should have been negotiated upon the best information available at that time, not after the original sub defaults and is replaced by a subsequent sub. The Government would not be able to receive any benefit of a price reduction for defective pricing, unless a subsequent prime contract modification is based upon defective pricing. Then, the modification action might involve TINA cost or pricing data associated with the new action. Plus any false factual information used to price the modification is subject to the False Claims and False Statements Acts, fraud, etc. The Defective Pricing cases that I've been involved with always examine when the subcontract pricing actions occurred. There may be some cases somewhere, but we would not get involved in a case like this. This data does not meet the definition of cost or pricing data concerning the pricing of the prime contract, as it occurs long after the date of agreement on the price of the CONTRACT between the government and the prime. In a relatively old "BRIEFING PAPERS" article (Federal Publications, July 1993), the author states on page 9 that "Given the DCAA position" (that because a later formation of a subcontract will not affect the price the Government pays under its fixed-price contract with the prime) "there is no need to require a subcontractor to submit a certificate at the time of prime/subcontractor agreement even though the FAR appears to require one." It goes on to say that it "is time consuming, costly and may cause unnecessary litlgation". It also goes onto say that the prime may require it as I mentioned above for its own purposes. Technically, this information isn't even "cost or pricing data" per the statutory definition, because it has no relationship to the price being paid by the Government. The actual statutory definition of cost or pricing data in 10 2306 a (h) is: "(h) Definitions.--In this section: (1) Cost or pricing data.--The term ``cost or pricing data'' means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification), or, if applicable consistent with subsection (e)(1)(, another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. Such term does not include information that is judgmental, but does include the factual information from which a judgment was derived. These later facts don't exist as of the time of agreement on the CONTRACT price and indeed have no bearing on the price paid to the prime contractor by the Government. I'm not a lawyer, so consult one if you want - plus the prime can require it for their own purposes. However, the Federal Government cant do anything with the info, to my knowledge, so it is unnecessary from the Government's legal point of view. That's not to say that some KO wont require it because the FAR appears to require it, even though it serves no purpose from the government's viewpoint or meet the intent of the Truth in Negotiations Act. Indeed, the KO on your contract may require it and the contract language may appear to require it. But it would be a waste of effort and serve no useful Government purpose that I can think of. A follow-on prime contract mod involving the new sub should use its own basis of pricing.
  2. Jeez, now we have a trickle of "the rest of the story". I withdraw, since you are now feeding us bits and pieces of "the unique" nature of the contract. Sorry, I should have given the KO the benefit of the doubt here. She may be wrong but it now looks like there is much more to this than initially presented. Had this been a routine grounds maintenance contract, I would find it hard to believe that pricing, which consists of one line item and no technical proposal, would reveal proprietary secrets, given the original scenario presented. The purported reason given for not releasing the contract price did not fit the seemingly simple scenario. No wonder this looked (and smelled) fishy.
  3. Vern, I understand the background and reasons for the exclusion. However, this is now being interpreted to the extreme to the point where it is just a croc. This is a grounds maintenance contract. I may have missed it, but did anyone look at the reason the KO gave not to reveal the price? Brian said only that the KO referred to "FAR 24.202", with no apparent further explanation other than the price is part of a proposal, thus cannot be revealed. He later said that she also refuses to name the winner. Both of those practices are contrary to the requirement where there is a debriefing, to provide the overall price and name of the winner, unless there is some other reason provided. She apparently didn't (from the info presented) explain why the contract price would reveal any proprietary information other than it is part of a proposal, so is not releasable. I don't think that one can use 24.202 (a) as justification not to name the contractor or reveal the price because those items are obviously prime features incorporated into the contract. She didn't explain why 24.203 ( would apply, either. That refers to a price breakdown or some other info used to evaluate the reasonableness of the price, not the overall contract price itself. Everyone seems to have jumped into this specific case as though the unit prices are to be held tight, perhaps because they will automatically reveal proprietary information. I've dealt with construction and other public works repair and maintenance contracts for 30 years that contain unit prices and it would be extremely rare where the unit prices would reveal such info. I've also evaluated a couple of service contracts for grounds maintenance on civil works sites and nobody ever objected to releasing the contract prices. You may say, yes but many of those (not all) were IFB where the information is public by law. Well, IFB, RFP, Part 13 doesn't seem to make a difference here as price alone was evaluated and it appears to be a routine contract, not unlike those that are publicly bid all over the US. Hell, there are reporting services that have been publishing unit prices on public works projects for at least 38 years (I didn't read any before 1971). I used to subscribe to a few of them. That is how we used to budget for our new projects and we used the data in developing our owner and government cost/price estimates. Brian said that they wont even name the awardee. This whole thing looks fishy to me. Maybe it is a secret contract at Camp David or something and Edward or Sweeny will do the work.
  4. Seems to me that the only trade secrets in a lawn maintenance contract might be if they were going to use Edward Scissorhands or Sweeney Todd to trim the grass or bushes. Besides nobody said there are trade secrets involved, here. Are you are telling me that anytime there are unit prices involved in a government contract, the government can't reveal them to the public? What about the same work but in an IFB format? This is getting ridiculous. Civil works construction contracts might contain up to 100 CLINS and public works contracts often use unit prices and estimated quantities to be measured and paid at actual installed quantities.
  5. I have been out of town the past few days, but - for Cripes sake, already - this is a grounds maintenance service contract! What kind of trade secret is involved in finding the overall contract price (I'm guessing that it is X months at $y/month = contract price)? "Here is FAR 52.215-1, Instructions to Offerors--Competitive Acquisitions, with respect to debriefing: (f)(11) If a post-award debriefing is given to requesting offerors, the Government shall disclose the following information, if applicable: ...(ii) The overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror." Seems like the overall price is one thing that must normally be revealed in the debriefing and the questioner never said that there are trade secrets involved - in a grounds maintenance contract?????????? mowing grass, trimming plants, fertilizing, etc. ??????
  6. Well, it still look like he just wants to know who won and what the overall price is (one CLIN). He has the right to know that, as would we (unless this is a classified contract).
  7. This is a post award contractor internal problem that doesn't have any affect or bearing on the integrity of the initial negotiated award between the Contractor and the Government. The TINA isnt applicable to this situation. The Contractor must get the work done and is using a replacement subcontractor for one who failed. He didn't know that at the time of price agreement with the Government. The cost or pricing data was supposedly current at the time of the initial award of the work or at the time of agreement with the Government.
  8. I read the initial post as though the overall price is a secret. The questioner didn't mention unit prices. Brian are you clear about what you want and are you sure that both you and the KO are talking about the same information? What info do you want to know?
  9. Shinaku, DOD small business set-asides for construction are back, from what I've been told. I don't agree that building roofing systems are "commercial items", especially with the massive problems in the industry with quality, workmanship, warranties, etc. I read an air Force article once that said - "Dont ever technical advice from roofing contractors". I have done several "autopsies" on "roofing problems from Hell", over the years.
  10. Yes, the requirements for self-performed work by employees of the HubZone firm or other HubZone firms are found in the HubZone clauses, as applicable to the acquisition (52.219-3, 52.219-4).
  11. Case law holds that price must be a meaningful factor. The government must determine that to award to other than the lowest reasonably priced, technically acceptable offeror, the additional benefit provided by a higher technically rated proposal must justify the increased cost to the government (we taxpayers). I don't think I can be more specific because agencies vary in their rating systems. Ones that point score technical and/or price proposals sometimes come up with all sorts of mechanical machinations to justify their selections.
  12. Don, thanks for the clarifications. I was aware that the SBA definitions of self performed work were different, but overlooked the distinction in actual clauses. I will follow up on that when I get home from TDY.
  13. I don't know whether or not the two questions are related to 15.506 (d) or which BAA provisions arre in your contract or the dollar amount involved. Paragraph 15.506 (d) says, in part: "...(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed." If this is applicable to the type of acquisition, you should be able to determine what make and model number of a commercial item is to be furnished, which might allow you to find out where it is made. If a price comparison evaluation is necessary, you can ask if it were made. If BAA applies and the products are made in China, products from that country are not considered to be domestic products for purposes of the BAA clauses. I also think that it is fair to ask where the products are made.
  14. Well, you can always take the reduction unilaterally and let the contractor submit a claim. Now, If the actual installation will fully meet the performance requirements and service life, I would expect that a court would say that the government is entitled to a credit for the difference in cost between compliant stone and non-compliant stone, plus profit. That would represent the difference in value to government between specified and actual product. If such is the situation, I think that contractor has little or no legal leg to stand on. What can he argue? "I used a cheaper product than that specified, therefore I did not comply with the contract and pocketed the difference? In that scenario, I'd quit screwing with the contractor, make a final offer, then implement it, take the credit and make contractor justify why him pocketing the difference between compliant and non-compliant materials doesn't represent a reduction in value to government. If I pay for a Buick and get a Yugo, I believe the value I received was that of a Yugo, not the Buick, even though both will get me from point A to point B.
  15. Midas, (that name sounds appropriate) have you read the clauses 52.215-12 and -13? Don't they answer your questions?
  16. ...and HubZone or other small business set-asides to which 52.219.14 is applicable.
  17. Carl, does the Limitations of Subcontracting clause apply to unrestricted schedules or just to schedules that are restricted to small business?
  18. "When the government asks you to describe your ability to control and manage your subcontractor's, besides contract type, can someone provide other examples that the government likes to see or should be in place?" I assume that this is for proposal submission and evaluation - but for what (.e.g., service, construction, research and development, design-build, etc.) is this and is it a cost or firm fixed price, fixed price incentive, etc. contract?
  19. Big red's employee has quit the company due to relocation, but will still perform the work that big red agreed to provide at a certain unit price hourly labor rate. The contract contains the pre-2007 payment for time and materials contract clause. If I were the KO, I certainly woudnt pay more than the unit price hourly rate we agreed to in the contract. But, as long as the service level doesn't change, I'd also think twice before demanding to renegotiate the labor rate.
  20. The KO may be wanting you to justify the rate. Since she is now an independent consultant, I doubt that the indirect costs on her salary will be the same. And I dont agree that "consultants regularly cost more per hour than full-time employees". Independant consultants do not necessarily have high overheads. Here, are you saying that it doesnt matter on your contract whether a direct hire or a contractor performs the work regarding the contract T&M rate? What is the date of the contract?
  21. Kodiak, it doesn't matter whether or not the files are still "active" or not. The contractor may request copies of official files under FOIA. Like I said, the lawyers made arrangements through legal and contracting to come sift through various official files. There were some that were privileged, but I don't remember which, off hand. When I defended claims, I also scoured the entire (up to four years in two cases) set of contract files. Contractors are good at selectively using files to build a case. My research put them in context of the whole story.
  22. Kodiak, I fail to understand that , once you discovered that the installation didnt meet the contract requirements, why your office didn't direct the contractor to stop work due to a failure of its quality control system until such time that it demonstrated that further work would be installed in compliance with the contract. Such a directive is not a "suspension of work for the convenience of the government". At any rate, the government should be entitled to an equitable adjustment for acceptance of the defective work, which assumes that it is essentially fit for its intended purpose. The following is an excerpt from the Granite decision that I mentioned above: "...the government should not be permitted to direct the replacement of work in situations where the cost of correction is economically wasteful and the work is otherwise adequate for its intended purpose. In such cases, the government is only entitled to a downward adjustment in the contract price. Toombs & Co., Inc., ASBCA Nos. 34590 et al., 91-1 B.C.A. (CCH) p 23,403 at 117,433, 1990 WL 172728 (1990). Cf. Farwell Co. v. United States, 148 F.Supp. 947, 950, 137 Ct.Cl. 832 (1957). .. "The concept of economic waste has long been recognized at common law. See the seminal case of Jacob & Youngs v. Kent, 129 N.E. 889, 230 N.Y. 239 (1921). The Restatement of Contracts 2d, ? 348(2) endorses the economic waste approach for calculating damages in certain instances where defective performance is rendered. Section 348(2) provides that an owner may recover the reasonable cost of remedying defective work if that cost is not clearly disproportionate to the owner's loss in value. If the cost is disproportionate to the loss in value, then damages are limited to the diminution in the value of the property. Illustration 4 of ? 348(2) is based on Jacob & Youngs v. Kent. "In addition, numerous state courts have utilized the economic waste rules. See Annotation, "Modern Status of Rule as to Whether Cost of Correction or Difference in Value of Structures is Proper Measure of Damages for Breach of Construction Contract," 41 A.L.R. 4th 131 (1985)." I didnt read the references, but I think, though I may be wrong, that the credit adjustment should include an allowance for profit. Also, G&A and any other applicable overheads are indirect costs, which are definitely elements of total cost and should be applied to the direct cost credit consistently, similarly to how it would be applied to modifications involving increased costs. I don't know the details of your specific situation or whether or not the work is fit for its intended purpose. We once took a credit, including allowance for profit, on several million dollars worth of large, underground, high voltage primary electrical cable on a housing project, based upon the economic waste theory. The installed cable insulation did not meet the contract requirements but was fit for its intended purpose, although the estimated service life was less than the specified cable. I don't remember if it was what was submitted in the construction submittal or not. The credit for reduced value to the government was based upon the estimated reduction in service life from 25 or 30 years years to 20 or 25 years (can't remember the exact numbers anymore, but I think we lopped 5 years off). Note that the Granite decision discusses other principles including how lack of government testing or inspection does not relieve the contractor of its responsibility or liability for failure to comply with the contract.
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