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ji20874

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About ji20874

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  1. John, I don't know enough facts to give you any recommendation, but maybe I can share a few thoughts that might be helpful. There are two wholly separate matters that you need to keep wholly separate -- one is negotiating a fair and reasonable estimated cost and fixed fee for future work (a pre-award matter for contracts or orders not awarded yet), and the other is enforcing the clause at FAR 52.215-23 and recovering excessive pass-through charges (a post-award matter for contracts or orders that have already been awarded). It sounds to me like you are pre-award, so let's forget FAR 52.215-23. Forget it (unless you want to audit the proposal). You can deal with 52.215-23 when you are doing post-award contract administration. If you are pre-award, let's talk FAR 52.215-22 (instead of -23). You used that provision in your solicitation, right? Good. The question is whether the contractor complied with 52.215-22 . Look at 52.215-22(c)(1) -- did the contractor comply with (c)(1)? That is a YES or NO question. Now, look at (c)(2) -- if the condition in (c)(2) exists, did the contractor comply with (c)(2)(i) and (ii)? This is a YES or NO question. Now, look at (c)(3) -- if the condition in (c)(3) exists, did the contractor comply with (c)(3)(i) and (ii)? This is a YES or NO question. If any answer is NO, then your contractor failed to deliver an acceptable proposal -- you should remember this for CPARS purposes. But for now, you should require the contractor to revise its proposal to comply with FAR 52.215-22. Once you have a good proposal (one that complies with FAR 52.215-22), you will be in a better position to develop a negotiation objective. Since you are pre-award, you should erase "disallow" from your vocabulary. You will try to negotiate a lower estimated cost and/or a lower fixed fee, but you don't disallow anything in the pre-award stage -- you simply refuse to agree to it during your negotiations. During your negotiations, it is not necessary to come to agreement on every element of cost -- it is only necessary to agree on an reasonable overall estimated cost and a fixed fee. You will use weighted guidelines to help you with your fee objective. Pepe, I think John has a single-award IDIQ contract, and every order has to use the FAR subpart 15.4 process to determine reasonableness.
  2. I think your attorney spoke far too broadly.
  3. If this were a prime contract we were talking about (between a federal agency and a contractor), that contract might contain contract clauses that would be helpful. For example, a Government prime contract might contain the clause at FAR 52.242-17, Government Delay of Work. That clause allows the contractor to provide notice of an alleged delay and provides a remedy for the delay. Is there any similar clause in your contract? If so, that is your starting point. If not, you might need to improve your relationship with the private entity with whom you have contracted, and/or you might have to lawyer up.
  4. So, are we understanding that the contract in question is not a FAR-based prime contract between a federal agency and a prime contractor? It might be that FAR principles do not apply, and the contract will be governed by its own terms and state law. The threshold for a buyer's unreasonable delay of work could be a matter for dispute in civil (state) litigation between you and the other party (the buyer).
  5. I suppose HSE plan means Health, Safety, and Environmental plan -- is that right? What is AR? Is the contract between two private entities?
  6. ji20874

    Out of Scope Period of Performance Extension

    Forget the prime's POP extension -- that is irrelevant. It seems the Government has rejected the work, or is requiring some re-work (correction of deficiencies) before acceptance -- in lieu of terminating the prime contractor for default, it seems the Government has given more time to allow the prime contractor to correct the deficiencies -- that is gracious on the Government's part. The prime contractor and the Government need to communicate with each other -- that should be a two-party conversation (prime contractor and Government, with no subcontractors). If the prime contractor disagrees that any re-work is needed to correct deficiencies, or believes the requested work is outside the scope of the contract, it may say so and may file a claim demanding Government acceptance of the work and final payment under the contract's Disputes clause. If the prime contractor agrees that re-work is needed to correct deficiencies, it may get the work done. Re-work of deficiencies is usually done at the contractor's expense. Whether your company will bear any of the expense depends on your subcontract with the prime contractor. If the prime contractor believes the requested work is really a constructive change, it may say so and may submit its request for equitable adjustment under the contract's Changes clause. Hopefully, the prime contractor has an attorney who has read the contract and can provide fact-based advice to the prime contractor. No one here has read the contract or knows whether the work is deficient.
  7. ji20874

    Out of Scope Period of Performance Extension

    So, this is a design-build construction contract. Okay. Is the argument/discussion/misunderstanding between (A) the Government and your prime contractor, or (B) your prime contractor and you (the subcontractor)?
  8. ji20874

    Out of Scope Period of Performance Extension

    Was it a supply contract? Service? Construction? Architect-Engineer? Something else? Did the Government reject your deliverable, and issue a modification to set the time for you to correct the deficiency?
  9. Joel, Even though the example in the original posting uses the word "tradeoff" in the Second Step Consideration, it seems to me the GAO has been careful to use the term "tradeoff" only in price/technical tradeoff situations. I think we should follow that lead, and I think the use of the word "tradeoff" in this example (in the Second Step Consideration) is an improvident use of the word. In the FAR, tradeoff is used only in a price versus technical setting. In the example in the original posting, the price/technical tradeoff occurs only in the Third Step Consideration. You're right that a downselect works best when offerors are allowed to submit proposals piecemeal, such as Step 1 proposals from all interested offerors followed by Step 2 proposals from those who are the highest rated from Step 1. The example in the original posting is not a multi-step submission process; rather, it seems to be a multi-step evaluation process where offerors submit complete proposals and the Government only evaluates pieces as it goes along. I'm okay with that approach, where price is considered only in the last step and only for those offerors who make it to the last step. napolik, Multi-step acquisitions are becoming more common, with consideration of price and price/technical tradeoff in the final step. I am personally aware of more than a dozen recent multi-step acquisitions where price was submitted in the second or final step, and none of them were protested for this reason (even though the competitive pools contained very sophisticated/savvy/litigious vendors) (this includes Part 15 source selections as well as ordering under Parts 8 and 16).
  10. For some acquisitions, a down-select process can work well. I have seen it done many times, with much success. It allows offerors to save on bid and proposal costs, because they only have to develop complete proposals (including complete pricing) if they make it to the second step (of a two-step process). And offerors who don't make it to the second step get their bad news sooner, and can focus on other opportunities. It also saves the Government time, because the detailed evaluation and tradeoff can be done for fewer offerors, rather than a complete evaluation of every offeror. If price is the least important factor, and if good market research has been done, it can make sound business sense to leave the price evaluation to the last step, among only those offerors who have made it through the down-select process to the last step. A practice (such as a down-select) is permissible under the guiding principles in FAR 1.102 when it uses sound business judgment and is otherwise not prohibited anywhere. If a contracting officer is uncomfortable with a down-select process, he or she doesn't have to use it. But if a contracting officer thinks it makes sense, and all the other players in the process are okay with it, then I'm also okay with it.
  11. Any assertion that price must be considered in every step in a multi-step evaluation process is also proven false by the FAR-approved process of two-step sealed bidding, where price is not considered in the first step. See FAR subpart 14.5.
  12. Do you realize that while you wrote the following-- "both 8.405-3 and 15.304 require consideration of price in every best value determination or source selection" you seem to actually be insisting-- "both 8.405-3 and 15.304 require consideration of price in every best value determination or source selection [step of a multiple-step evaluation process]" There is a stretch between these. I don't know how one reaches from the first to the second. The GAO decision in Sevatec, Inc. et al., B-413559.3 et al, Jan. 11, 2017, and the Court of Federal Claims decision in Octo Consulting Group, Inc. v. United States, 117 Fed Cl. 334 (2014), both indicate that your stretch is error. Perhaps these can persuade. Why is it essential that you be persuaded, when you aren't a participant in the acquisition? Can it be sufficient that the contracting officer and others involved in the process, along with the prospective offerors, are satisfied with the approach? In light of the Guiding Principles for the Federal Acquisition System in FAR 1.102, it seems to me that we must allow others to practice in a way that might differ from our own preferred practices.
  13. Re: Question 1. In much more recent history, the GAO ruled that it was not necessary to consider price in every phase of a multi-phase acquisition. A key difference between them and now is that no competitive range is being formed. I can’t cite the case right now, but this suffices for this discussion. Re: Question 2. I have seen this downselect process a number of times, including a few with protests to the GAO, with no objections. Re: Question 3. If any prospective offer or objects, they will be able to raise their objection.
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