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joel hoffman

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  1. Can you please elaborate? What is “sub-task order level”? What regulations are you referring to? What kind of contracts are you referring to? There is no context to your one sentence question… Thanks in advance.
  2. For those wondering what kind of analysis and discernment are necessary to decide whether or not to apply FAR Part 19 to an foreign contract, I suggest a close reading of the Comments and FAR Council responses to the Final rule. The comments acknowledge some criteria and circumstances that would likely make it challenging, difficult, impractical or almost impossible to apply Part 19. In particular, DoD installations and activities in foreign countries often involve country to country agreements (e.g.,assistance agreements, Status of Forces Agreements, Treaties, etc.). We are foreign guests operating in others’ Home countries and communities. Our operations affect the local populations, business communities and work forces. Applying Set-asides that might affect or shutout local contractors, workforces , skilled labor, manufacturers, supplier sources and relationships should be considered. Logistics should be considered. Financing and currency factors must be considered. There was very good discussion of various constraints and hurdles to consider and overcome for construction projects, such as design standards, laws, ordinances, codes, materials, cultural issues, geography, environmental, means and methods, labor forces, suppliers and trade subcontractors, continuing responsibilities such as warranty support, etc. These risks, challenges and considerations are particularly applicable to any small business, especially to US small businesses and emerging small businesses attempting to operate in many foreign countries. If the acquisition team isn’t familiar with or able to assess such considerations, then they have no business imposing US Socioeconomic business policies and procedures in host nations.
  3. If you are and have been proposing using the current rates for each entire task order, then it appears that your interpretation agrees with the current government interpretation.
  4. Having worked overseas on two continents for 6 1/2 years and leading source selections for, negotiating contracts for and overseeing work In Central and South America for seven more years, I’m not in favor of using FAR 19 set-asides outside the US and it’s territories, etc.
  5. HCAs and contracting officer chiefs can’t remove the flexibility if it contradicts a treaty or other country to country agreements, e.g., foreign assistance agreements, NATO, etc.
  6. I don’t have a problem with the flexibility [it is discretionary], provided that the KO’s have sense enough to use it. I have a huge problem with the practicality of it and some of the responses and implications of those responses to the public comments.
  7. It was interesting when a comment mentioned the inequity of not allowing local foreign owned small businesses in a foreign area from competing against small US based businesses in a FAR 19 set-aside in their own country. The Council essentially said that foreign owned businesses can apply to be classified as small businesses. ”b. Rule Excludes Small Foreign Entities Comment: A respondent commented that, since non-U.S. businesses are not considered “small,” applying small business size standards outside the United States excludes foreign entities and limits competition to U.S. companies only, contrary to CICA. Response: As explained in the response to the comment under category 10a, SBA's regulations allow “non-U.S. businesses” to be considered small business concerns for the purposes of FAR part 19 procurements if they meet the criteria at 13 CFR 121.105. The Councils note that CICA provides an exception that allows agencies to exclude from competition other than small businesses in furtherance of sections 9 and 15 of the Small Business Act (see 10 U.S.C. 2304(b)(2) and 41 U.S.C. 3303(b)).” Thus, we are now permitted (discretionary) to use set-asides to hire foreign owned small businesses. Awards to such firms would also count toward Small Business award “goals”… And if the foreign entity could meet the requirements as a Small Disadvantaged or other small business category… The Councils did recognize that overseas construction, A/E and many service contracts are subject to [many] considerations that are unique to the overseas environment. Thus the acquisition team needs to determine [use discretion] whether or not to set-aside such contracts. Is all that within the scope and Intent of Small Business Administration Part 19 Programs? Since when has the SBA and its programs decide to apply to foreign owned small businesses. And what is a minority or disadvantaged owned business entity in a foreign country anyway? Can qualifying foreign owned firms from any country compete in other countries under set-asides?
  8. Maybe? But the employee must be awfully dedicated to take a three day suspension without pay* to make the point! And it would be Shame on CPSC to make an employee a scapegoat to send the message. *3/10 or 30% of a bi-weekly check, plus earned leave and retirement credit? (As an example of how the employees fringe could be affected, when I transferred from Germany back to the US or maybe from Saudi Arabia to Germany, the Europe Pay Office was on a one week different pay cycle from the other pay office. I was docked fifty percent of my earned leave and sick leave for transferring mid-pay cycle of Europe.)
  9. Hmm, so you essentially propose using the current years rates for the entire task order, correct? There appears to be some apparent inconsistency or missing context to the scenario here…
  10. Is the previous CO still available to contact for discussion and support?
  11. I wonder how much of the taxpayers’s money (and borrowed deficits funding) was or will be expended in investigating, taking remedial action, compiling, publishing, reporting to Congress, Congress reading, current employees reviewing (including those reading this thread on government time), etc., the first two reported violations. I’m retired, so at most, I wasted valuable time away from my dog, Rockne. Sorry for any wasted appropriations for those following this thread. It’s just such blatant hypocrisy how the various violations were treated. 🤪
  12. Everyone should read this GAO Report to Congress. https://www.gao.gov/products/b-333630#mt=e-report I am quoting the first two violations below, which are Chicken Sh…, where conscientious employees were disciplined and one received a three day suspension for voluntary actions taken during a government wide furlough. In contrast, compare those two violations with the 15 other reported violations, for tens of thousands, over $1 million, hundreds of millions, and one for over $689 million (GSA). Some of the others were for executive office furniture acquisitions in excess of $5000 without advance notice to Congress. Another was for mis-funding relocatable building purchases (similar to previous topics discussed in the Forum). Another was for excessive pay to political appointees (waivers for excusing the overpayments were subsequently allowed, submitted by the employees and approved). Interesting reading. Lesson learned? If you’re going to violate the ADA, do it BIG TIME? from: Antideficiency Act Reports – Fiscal Year 2021 1. “GAO No.: GAO-ADA-21-01 Agency No.: None Reported Date Reported to GAO: October 7, 2020 Agency: Consumer Product Safety Commission (CPSC) Date(s) of Violation(s): Fiscal Year 2019 Account(s): Salaries and Expenses Amount Reported: $79.70 Description: CPSC reported that it violated the Antideficiency Act (ADA), 31 U.S.C. § 1342, when it accepted voluntary services when a furloughed employee worked during the partial government shutdown that occurred between December 2018 and January 2019. According to CPSC, an employee assigned to the Division of Chemistry in the Directorate of Laboratory Services was furloughed on December 26, 2018, due to a lapse in appropriations. CPSC reported that its furlough notice, which the employee signed, instructed the employee not to work on official business, even as an unpaid volunteer. While furloughed, the employee accessed his official CPSC e-mail and sent a total of six emails from his official e-mail. Remedial Action Taken: To prevent a recurrence of this type of violation, CPSC reported that it will continue to emphasize that employees who work while furloughed are subject to the penalties of the ADA. According to CPSC, the responsible employee received a three-day suspension and was required to receive trainings on the ADA and its application to government furloughs. CPSC reported that the responsible employee did not willfully or knowingly violate the ADA. Source: Unaudited information GAO extracted from agency Antideficiency Act reports; E-mail from Acting Chief Financial Officer, CPSC to Staff Attorney, GAO (Dec. 15, 2021).” 2. “Agency No.: None Reported Date Reported to GAO: October 7, 2020 Agency: Department of Agriculture (USDA) Date(s) of Violation(s): Fiscal Year 2019 Account(s): Agricultural Research Service Salaries and Expenses Amount Reported: $11.03 Description: USDA reported that it violated the Antideficiency Act (ADA), 31 U.S.C. § 1342, when it accepted voluntary services when a furloughed employee worked during the partial government shutdown that occurred between December 2018 and January 2019. According to USDA, a Contracting Specialist in the Agricultural Research Service (ARS) uploaded a document into the Integrated Acquisition System on December 31, 2018, while furloughed. According to USDA, ARS accepted the voluntary services in violation of the ADA, 31 U.S.C. § 1342. Remedial Action Taken: To prevent a recurrence of this type of violation, USDA reported that ARS had a process to disseminate information to employees regarding emergency and shutdown furlough procedures, furlough notices, and ethics during a lapse in appropriations. According to USDA, the responsible employee has been advised of the prohibition against working while furloughed. ARS has determined that the responsible employee did not did not willfully or knowingly violate the ADA. Source: Unaudited information GAO extracted from agency Antideficiency Act reports.”
  13. Correct. But be careful when making generalized statements about COR’s. I don’t know how NAVFAC works these days, either. When I started with the USACE in 1980, NAVFAC resident officers in charge of construction had no contracting authority - I was told that all mods went to the Washington NAVY Yard for a Contracting Officer to sign. Obviously, someone had to have authority to administer their contracts, probably the ROICC’s. USACE service contracts sometimes work similar to how you described.
  14. While COR’s are appointed for each contract, it isn’t always true that the job descriptions don’t align with the duties of the COR. In the Corps of Engineers, construction field ACO offices are staffed to perform contract administration, quality assurance duties and often certain technical engineering duties for construction projects. An office might be established for single projects, single programs (multiple contracts) or permanently for geographical areas or Installations. There may be ACO(s) and/or COR(s) for construction contracts assigned to their office. To be a COR, the person assigned must meet the criteria and have the applicable required training for a COR. Resident and/or Area Engineers generally are the ACO’s in most field offices. The professional staff are primarily 0800 series.
  15. What series a COR works under should depend upon the type and complexity of the products or services being contracted for. See again, the link that Carl Culham provided. https://www.mspb.gov/studies/studies/Contracting_Officer_Representatives_Managing_the_Governments_Technical_Experts_to_Achieve_Positive_Contract_Outcomes_224103.pdf. See also the link that Jamaal Valentine cited: https://www.army.mil/article/223515/need_to_know_other_duties_as_assigned
  16. I agree, but in the sense that “few” means percentage, not necessarily a small number. May depend upon the agency. In my agency, COR’s for construction contracts traditionally were engineers, architects (and now construction management degreed graduates) with considerable amount of contract admin training.
  17. COR’s don’t necessarily have to be 1102’s.
  18. The estimated cost of an order commencing in one period and extending into a subsequent ordering period should reflect when the work will be performed. The maximum rates are pre-established. EDIT: I just re-read the initial post. It’s unclear to me now how these task orders were initially priced for work that extends across ordering periods. The OP stated: “When OY2 was excercised we gave increases to coincide with the OY all still below the OY2 max ceiling rates.” Was this contemplated in the establishment of the basis of estimated cost for the task orders or not?
  19. Also- you said there have been government personnel turnover. Is it possible to contact or ask the current government personnel to contact the previous government staff thst you worked with in order to verify the government's original contract interpretation?? It seems to me that the current government staff should justify their new interpretation. .
  20. As others have pointed out , the contract may be ambiguous. However, you said that you and the government have had prior course of dealings on this very contract where both parties agreed with your original and current interpretation (I’m agreeing with H2H). Indeed, this is not a FFP contract, it is cost reimbursement. Your current rates are within the current ceiling cap. You say there is no explanation of how each year’s rate caps apply to an order. Which leads me to another question. You say there are numerous task orders. How are they priced and issued?? Do you submit a task order priced proposal, identifying the estimated hours and applicable rates for each proposed position and indicate some hours being performed in one contract year and some hours being performed in subsequent year(s)? Or does the government determine the pricing and issue unilateral orders?
  21. From my general recollection, the GAO is more apt to scrutinize limiting the competitive range to one firm, especially if the agency didn’t include price in the limited discussions.
  22. Is there language in the contract requiring you to pay or not exceed the rates that were applicable in the ordering period if the task order extends into a following period.? This is a cost reimbursement contract. I suggest that you challenge “they”/them to justify not paying the applicable rates for the periods worked.
  23. 1. It’s the policy of the organization that you work for. 2. Looks reasonable and essential. Are these all in some formal electronic formats ? Paper? Notes? 3. Reasonable and quite possibly essential. 4. With today’s word processors, copy, paste, etc. (and paperless contracting software systems) what is the big deal? 5. What types of contracts do the agency and COR(s) award and administer? 6. If you ever have to deal with claims, changes, terminations, or many routine contract actions, precede or take over for another (personnel turnover), you should appreciate having the data to maintain continuity and/or reconstruct facts and circumstances, support the government’s (or the contractor’s) position. 7. Don’t know if your organization has multiple contract admin personnel, don’t know magnitudes or lengths of your contracts.
  24. Ok thanks, so I’m reading this being mostly or all for FFP specific design tasks, even if the task order performance extends past an ordering period. NGB = National Guard Bureau, I assume. As an aside, NGB members often attended our USACE Design-Build Construction, PROSPECT Course. Many years ago, they formally adopted our Design-Build contract clauses - and that was many years before the HQUSACE formally adopted them in the USACE Acquisition Instructions in 2014. They’d been used on many tens of billions of dollars worth of USACE D-B projects before 2014! That’s a long, Internal political turf war story between HQ Directorates, for another day. But I was pleasantly surprised when the NGB told me that they had included them and were using them. My hat is off to the the NGB! 😄
  25. Sorry. That was also my situation yesterday and the previous afternoon. Any time I tried to fix something, everything became part of a link to one of the banner ads. Then I couldn’t even log in to the forum. I thought that I’d been hacked. I kept getting a message that the site was not secure. If I pushed connect anyway, it erased my user name and password. I changed password and that didn’t work either.
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