joel hoffman

3 minutes ago, dsmith101abn said:

I don't think that extended to civilian agencies. 

Ah so… thanks 

17 minutes ago, C Culham said:

Other than commercial product or service.

Agreed.

@Seeking2Award, what didn’t you understand in reading this earlier thread at 

You said that the schedule extension would not benefit the government. This implies that there may be some. Additional cost, undesirable delays or other damages to the government. Does the KO simply want to waive the default and establish a new delivery date? Or does the KO want to obtain some consideration for extending the delivery date due to damages or other impact to the government for the delay?

EDIT: The OP posted the following  comment while I was posting this comment. Original. Post is resolved.

The KO should send the technical portions of the winning proposal applicable to contract performance to the contract admin office/team along with the consensus evaluation minus any ratings.

This is for construction**, design-build construction** and certain service contracts.

In addition, we identified any proposed betterments which exceeded the solicitation requirements and which were accepted and incorporated at award.**

—————————————————

Footnotes:

**We normally incorporate applicable portions of the technical proposal into the contract award for construction and design-build contracts. It usually corresponds to proposed key personnel, specific proposed material or equipment, building systems etc. for construction. For D-B, it also includes proposed design features.

There was an order of precedence clause. Not the FAR Order of Precedence clause, which is only applicable to and appropriate for the UCF format.

The Army Corps of Engineers uses the Construction Specification Institute, CSI format for construction and design-build construction contracts..

The CSI format is more suitable for Federal construction and design-build construction contracting than the UCF.

The UCF is suitable for service and supply contracting.

Is this a service contract? 

Construction multiple award ID/IQ’s can already be set up for price completion at the task order level rather than require FP at the contract level. That was implemented years ago. 

Sorry but these are questions to ask the IRS and/or any tax advisors that you employ…

How about a Freedom of Information Act request to the agency for the applicable registration details? You mentioned the contract ombudsman…

9 hours ago, bosgood said:

There is a question as to whether you are an interested party as an awardee and would have standing to protest.

Protest isn’t necessarily the only avenue applicable to allegations of misrepresentation of business size/status.

On 3/1/2024 at 1:22 PM, Voyager said:

I think Joel is just sensing that a lack of government-unique terms and conditions does not mean the government, as an enormous buyer entering a commercial market, cannot leverage its purchasing power to get terms and conditions favorable to its shareholders (taxpayers).  That has always been the focus of DOD in the post-FY16 NDAA era.  One of the main precepts they train is "Be a Prudent Businessperson", along with "Understand the Competitive Market Conditions" and "Have Reasonable Knowledge of the Marketplace".

Yes- and the government and some commercial customers may have different quality, cost, budget and schedule goals and objectives than other commercial customers.

Many commercial clients will tradeoff higher initial cost (and probably not be overly concerned about travel costs) vs. shorter time to start or resume production, get their products to market, and/or quality and reliability, for instance. Return on investment.

Many commercial customers often have continuing relationships with their vendors, I.e., little or no competition involved. True best value…

On 3/1/2024 at 12:38 PM, Retreadfed said:

Joel, Z said the contract was for commercial services.  If the contract is a T&M contract, it is governed by FAR 52.212-4 Alt I which does not incorporate the cost principles from FAR Part 31.  

Retreadfed, I agree that 52.212-4 Alt I does not incorporate the cost principles from FAR Part 31.

Z said that “travel [is] a reimbursable ODC on a T&M Line Item” in a fixed price contract. And Z said “ Business Class jumped [off] the screen when the CO looked at the proposal's travel cost estimates”. In other words, the KO analyzed the basis for and/or amount of the proposed flying cost.

That constitutes cost analysis, which is addressed in subpart 15.404 and is applicable when requiring and/or evaluating data other than certified cost or pricing for commercial services in 15.403.

Per 31.103 (a),  The cost principles and procedures in  subpart  31.2 and agency supplements shall be used in pricing negotiated services contracts whenever cost analysis is performed as required by 15.404-1(c)” [“Cost analysis”].

16 hours ago, Salus said:

Some of the pertinent information that would have been more easier to find had the ownership information been included was that the small business member of the JV was founded by a director level employee and another senior manager of the large business while they were still employed by the large business, which would have raised a flag regarding potential affiliation.

Have you tried contacting the SBA? If you think that there is evidence of misrepresentation of small business status involved in a contract award, I would think that you could discuss it with the SBA and/or the contracting agency, without filing a protest..

it See for instance, this link from the WIFCON.com homepage: https://www.justice.gov/usao-edva/pr/government-contractors-agree-pay-39-million-resolve-claims-misrepresenting-women-owned

i googled “Department of Justice misrepresentation of small business status”.  This was was one of several hit that came up

https://www.insidegovernmentcontracts.com/2022/06/doj-settlement-underscores-the-significance-of-incorrect-small-business-representations/

Here is another one referring to the SBA’s Code of Federal Regulations at 13 CFR 121.108:

https://www.law.cornell.edu/cfr/text/13/121.108

3 hours ago, Retreadfed said:

Vern, how would your system handle those rare situations where the SSA acts unethically or criminally such as in the Darlene Dryun case or the situation that occurred years ago at DLA's Personnel Support Center in Philadelphia where the CO was demanding kickbacks from the winning contractor on competitive procurements?  In the former case, as I recall there was no evidence that Boeing colluded with Darlene, while in the DPSC situation, the contractors clearly did collude with the CO.

@Retreadfed, you don’t have to protest in the event of such criminal activity.

On 2/29/2024 at 12:03 PM, Retreadfed said:

  In the former case, as I recall there was no evidence that Boeing colluded with Darlene,

Retreadfed, there was evidence…

Michael Sears — chief financial officer at Boeing. Negotiated Druyun’s post-retirement employment with Boeing. Convicted for role in the scandal, served a four-month prison sentence.

Phil Condit — chief executive officer of Boeing. Forced to resign as a result of the deal.

See https://sites.tufts.edu/corruptarmsdeals/the-boeing-tanker-case/#:~:text=The case stemmed from a,Department of Defense (DOD).

4 hours ago, General.Zhukov said:

when the CO looked at the proposal's travel cost estimates, and was never going to get into the contract. 

Thanks for the clarifications, General Z. So, some costs were indeed analyzed (“cost analysis”) for the reimbursable aspects of the Time and Materials portion.

See 31.103 Contracts with commercial organizations.

“…(b) In addition, the contracting officer shall incorporate the cost principles and procedures in subpart  31.2 and agency supplements by reference in contracts with commercial organizations as the basis for-

(1) Determining reimbursable costs under-

…(ii) The cost-reimbursement portion of time-and-materials contracts except when material is priced on a basis other than at cost (see  16.601(c)(3));”

Edit: However, see also 12.301:

“…(d) Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial products or commercial services, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial products or commercial services.“

But also:

12.213 Other commercial practices.

“It is a common practice in the commercial marketplace for both the buyer and seller to propose terms and conditions written from their particular perspectives. The terms and conditions prescribed in this part seek to balance the interests of both the buyer and seller. These terms and conditions are generally appropriate for use in a wide range of acquisitions. However, market research may indicate other commercial practices that are appropriate for the acquisition of the particular item. These practices should be considered for incorporation into the solicitation and contract if the contracting officer determines them appropriate in concluding a business arrangement satisfactory to both parties and not otherwise precluded by law or Executive order.

On 2/25/2024 at 7:35 AM, C Culham said:

Yes!

I hope no one uses this statement as market research as I would suggest it really depends on the company, and even for a individual company it might depend on the employee and purpose of travel.  

it also depends upon who the customer is. A commercial customer may have other priorities than quibbling about the cost of travel and/or may not have strict travel protocols/policies.

Many commercial customers place priorities on getting their products and services to the market with less emphasis on the initial cost of associated services or development costs. There may or may not be competition involved in providing services to non-government, commercial customers.

The government generally does have policies and is mindful of travel costs. Has been at least since 1980, when I joined the Civil Service. Travel costs comprise a major Federal cost.

The federal government isn’t necessarily bound to adopt every commercial practice, as some here have suggested.

It is important to consider some principles regarding reasonableness of costs or prices, including commercial products and services. Such as the definition of commercial services in 2.101 and whether they were priced competitively,  31.201-3 Determining reasonableness and 15.4 regarding commercial services.

In addition, many companies have direct,  overhead or G&A rates that may include costs that are not necessarily illegal, but unallowable on Government contracts.

1 hour ago, formerfed said:

That’s overly complicating things.  I wouldn’t even bring that issue up in a solicitation.  If travel is involved, request estimated travel costs and a brief explanation of the company’s travel policy.  Should an offeror propose business class, discuss the subject with them.  But I’m sure just about every company says coach for employees.

“LIKE”👍

2 hours ago, formerfed said:

This is the crux of the issue.  Under the situation in the original post, the contracting officer can include upgraded travel.  But is it wise to do so?  As Joel said, it’s negotiable.  There may be valid reasons for or it could be just a perk the contractor is providing their employees at government expense.  It’s gets down to the contractor and the contracting officer reaching agreement.

And one should realize that non-government customers might not have any or have fewer policy restrictions on travel. The government has an established policy for travel for its employees and for many government contract personnel. The government doesn’t have to simply accept paying for upgraded travel status for contractor employees.

This may sound like a broken record.  The government can define conditions for travel reimbursement and/or can negotiate terms if a vendor includes upgraded travel as the basis for other direct costs or otherwise for travel.  

On 2/22/2024 at 1:37 PM, General.Zhukov said:

The flying business class case is real too - although what happened is the GVT refused, thinking (wrongly, IMO) that it was prohibited, and the OEM agreed that $$ over economy class wouldn't be reimbursed.

So, as it turned out the government didn’t agree that business class fare was reasonable. And the job still got accomplished, I assume. 

Im guessing that the proposal or quote described the basis of travel. Thus - you or somebody else analyzed that COST aspect of the proposal.

Was this agreement made during the contract negotiations? Edit - added:  Or was it after a contract award? Was this a competitive or was it non-competitive acquisition?

“Cost analysis” can extend to evaluating the basis of reimbursable travel costs…

Edit: Whether competitive or non-competitive its a negotiable aspect.  If the government doesn’t want to pay for upgraded travel it has the right to negotiate it.

@General.Zhukov,  Did I miss where you asked how travel costs were treated on the contractor’s other government (DoD?) commercial and non-commercial contracts?  Did your market analysis of government contracts show that reimbursable business class travel for similar services was predominant ? 

If there are examples of the same or similar type of government travel that didn’t allow the additional cost of business class fares, then it would appear that, even if they didn’t like it, they still performed their jobs.

Since travel costs and travel policies affecting the eventual contract cost are significant enough for you to inquire about here, I would think that a prudent KO or acquisition professional would evaluate the proposed basis for employee travel especially If it varies from the otherwise predominant government travel policies

5 hours ago, Don Mansfield said:

This should apply to Government, too.

Do you mean government travelers too, performing official business?  Fat chance.

Or government contractors performing business for the government?

If it’s a commercial services contract, especially a quote, it should be negotiable.

But I forget…that’s too much effort and one might actually have to speak to the vendor. 

18 hours ago, General.Zhukov said:

This was very helpful and reassuring to me, as your responses agree with my understanding.

The flying business class case is real too - although what happened is the GVT refused, thinking (wrongly, IMO) that it was prohibited, and the OEM agreed that $$ over economy class wouldn't be reimbursed.  Apparently, highly-skilled technicians - especially those willing to travel to remote locations and be responsible for very expensive and delicate machines - can demand perks, and their employers are eager to pass those costs on to customers.

So, is it reasonable for the taxpayers to pay extra costs for contractor employee “perks”?

I flew on several flights that AL Senator Shelby was also on, between Washington DC and Huntsville, AL. Richard Shelby is a very tall man. He flew in a coach, non-exit row, window seat each time.

I think that the OP has probably figured out what “notwithstanding” means.

On 2/16/2024 at 3:07 AM, ArrieS said:

So FAR 12.301 (d) says "Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial products or commercial services, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial products or commercial services."

See dictionary definitions for “notwithstanding”.

Here is one example:

The original question which followed was:

On 2/16/2024 at 3:07 AM, ArrieS said:

Does "Notwithstanding prescriptions contained elsewhere in the FAR..." mean the clauses not mentioned in FAR PART 12 can still be required, or not?

It generally means  “despite” prescriptions (or “even if” prescribed) elsewhere, if it isn’t “required in” Part 12, then the KO isn’t required to include it.

It also means that if it [edit: is or] isn’t “indirectly referenced in” Part 12, then the KO  isn’t required to include it.

Applicable to the example peer review comments that the OP cited. The cited examples are already included by reference.

The practical problem is that, apparently some government personnel don’t seem to be aware of all the Part 12 requirements contained in references and references in the references.

Yet all vendors, prospective contractors and contractors are required to know all directly and indirectly referenced Part 12 requirements.

And they call this “simplifying” commercial acquisitions,

11 hours ago, FLContracts said:

You negotiated directly?

Yes, on occasion, a key sub would be in the room while involved in negotiation of its non-competitive subcontract.

And on at least one occasion, directly with a sub off-site. A few years ago I was assigned, as a rehired annuitant to lead the negotiations on a $42 million REA for a contract to construct a new, large auxiliary spillway and control structure at an existing flood control dam and reservoir. The REA was for time and schedule impacts of numerous mods that had been settled, with those aspects reserved. In addition, the government had directed acceleration due to the criticality of maintaining the schedule. There was a high risk of flooding overtopping the reservoir which would cause major flood damages.

My cost engineer and I travelled to a major subcontractor in another state who was the fabricator,  supplier and installer of the lift gates, tainter gates and gate machinery, to negotiate their subcontract acceleration and schedule impact issues. Over the course of the meetings, we mutually agreed to revised subcontractor impacts and costs.

The prime agreed with that approach.

This overall assignment was very complex and took almost 8 months to resolve. In the process, we devised some significant changes in the contractor’s technical approach to minimize impact delays at a significantly lower cost.

We settled the REA for about $25 million and the contractor agreed that the project could be completed several months ahead of its proposed impacted/extended scheduled completion date. The contract required completion date was thus revised.

In response to your question and your understanding of the privity of contract and management issues, the bottom line is still that the burden of proof is on the the contractor and its subs to establish that their costs are reasonable  and necessary (see FAR 31.201, etc.)…

2 hours ago, FLContracts said:

To complicate matters, the subs fell under the cost and pricing data threshold.

So what? Ask for “data other than cost or pricing data”. See 15.402 and 15.403-3. You can make them justify the reasonableness of their rates and price, including asking for cost information if necessary. We don’t know the nature of their pricing but you mentioned “rates”. What is the makeup of their rates?

You said this is cost plus fixed fee??? Are the subcontracts FFP or CPFF??  Rates appear to refer to some type of fixed pricing. 

Edit-Add: By the way, I used to negotiate some subcontract prices with the subs present at negotiations. On occasion, directly negotiated subcontract pricing and schedule impacts with the sub with the concurrence of the prime, particularly for impact REA’s.

And yes, we got price breakdowns.