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CaptJax

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  1. Thanks Joel, *The delay in revealing the structures was kind of on purpose, that's the field people let me know information, but from the DA PAM alone it doesn't matter if real property or personal property, you can replace doors and windows as service repair. This is a series of contracts at a remote military installation OCONUS. The contractor as performed successfully three previous 8(a) contracts of a similar repair type nature. We use this 8(a) because it holds the high level security level clearance to go into this area. We had the past three contracts from which the Government Estimate was made. The project was around $500k. These contracts were awarded with a different CO who had a lot more experience with supplies and services as well as a bit construction. We analyzed the proposal, called the contractor, got it in line with budget, then used a price fair and reasonable memo to document it, and these contracts were slightly over the SAP $250K to $800K range. We did not have any issue with doing it that way, which is the way I generally conducted 8(a) sole sources using SAP/FAR 12. FAR 13.5 raises the threshold of commercial items and services and adds specific documentation applicable above the SAT. The main cost drivers is the logistics and coordination with getting equipment, tools, and people to the worksite, hooking doors to the base security system; not so much the doors or installation itself. For this award I asked for a break out of cost because the contractor had prices so rolled up in lump sum lines items I couldn't make sense of the prices; contractor had $15,000 for one door and there was nothing really special about these doors. When the costs were unfurled there as a good account for the all costs; everything made sense. The Contractor noticed some efficiencies to reduce the price when breaking out the costs; I didn't request it, he just noticed it and revised. The proposal was within budget. To me this was just breaking out a proposal; not a negotiation. There was no need for a negotiation because the costs were necessary, realistic, reasonable, and within budget. So I prepared a price fair and reasonable memo explaining the fair and reasonableness of the costs using FAR 13 basis for reasonableness, then presented to the CO for review and award. Each line cited on a previous contract, knowledge of previous contracts, and other reasonable basis common sense and logic. The CO initially like it and it was sent to peer review where the peer reviewer asked for a POM/PNM. I prepared a POM/PNM which satisfied the reviewer. Legal look at it and blasted an email to everybody how it didn't have position, objectives, or what was negotiated and why even though I converted the PF&R memo to show those elements; that took two weeks of iterations. It took me a long time because the POM/PNM had tables and a border around the document that would get screwed up and do other weird things. The Government Estimate was under the contractor proposal by 12% in overall price, but labor differed by 40%. This was due to the Government Estimate leaving out pre-deployment preparation work and getting people, equipment, and materials on site. When you account for these items the 40% differences vanishes. We got embroiled into a word smith battle with legal on this PNM. I didn't want to use words like discussions, such as discussion were held on blah, during discussions the following topics were discussed, the the Government compared to the Independent Government Estimate and found the IGE omitted these costs...this is how the PNM now reads, it is 100% FAR 15 procedures, which now does it match the pre-solicitation planning documents. I might be wrong with my 8(a) approach. My hunch is that among these various offices there are those who hold different definitions and interpretations, and I posted this to gain greater insight. I noticed that there are concepts in contracting such as fair and impartial. Fair and impartial is specified out in a rigorous formal way in FAR 15 and a precise vocabulary is used when exchanging communications with offers such as clarification, discussion, and negotiation. it sees we make it a point to not use these terms when using other FAR parts to keep it clearly separate from FAR 15, but are not given precise words to describe what we are doing so we tend to make up words that mean kinda the same thing like Government Estimate is an informal wag for IGE when an IGE is not required. Maybe my observation is wrong in renaming things and the same formality is carried over from FAR 15 to all FAR parts, particular if you open any kind of communication with the contractor you need a POM first in case if the conversation rolls into revised offers or negotiations.
  2. It took forever to solicit because people couldn't figure out if it was a construction or service. It took a week to get pricing. Now it's taking forever to figure out how its to be documented, and the proper content of that documentation. It's really not so much the CO, its the legal office commenting on the file each time its being reviewed and wanting to see something different. I did a similar action in 2019 in about 30 days using the SAP 13.5 because its at 250K. It is not a commercial supply. The service element exceeds the supply amount. Thanks for your help and commentary.
  3. Part of the purpose of this post was to fine tune my understanding of FAR 19.808, FAR 12/13, and FAR 15. Sometimes in the FAR a term or methodology has specific meaning only in that FAR part, sometimes it has global meaning to all FAR Parts, sometimes you don't want to say words and phrases from one part or another as to not misconstrue what you are doing. From my experience sometimes its good to ask how do you define a word, what does it mean to you. I resolved an argument using that technique concerning an in-scope, out-of-scope mod issue where finance, engineering, and contracting all three had different definitions of what is in-scope. They didn't understand why the other person was saying it was out of scope where it was obviously in-scope by there definition, and were oblivious that different regs define scope differently. In this particular scenario, I have never seen anyone apply such a rigorous time consuming process to 8(a) sole source. I read the same FAR parts you posted above Vern, and thought it is a sole source, it is negotiated, the POM and PNM is a bit much but it doesn't prohibit doing that way. I posted this to see if I was missing something such as FAR 15 negotiation action has this definition and meaning when using FAR 15, but if you do a sole source in FAR 13 or FAR 19.808 its the same general concept of documenting the negotiation action, but the how is less formal. Also as you stated in a Sept 16, 2014, you reference good ole, Finlin-Complex decision in that GAO takes the the position that if you conduct a SAP by using FAR 15 procedures, then the GAO will apply FAR 15 protests rules. So if I write a POM/PNM and refer to revised proposals so forth would my file not be fully documented if I didn't carry out the rest of the FAR 15 procedures? Also the time required, and I will be called on the carpet to justify why I took so long to do this procurement later this week. Customer don't care about this stuff. They want an award. It's very difficult to explain why it took since March to award a simple contract in September because some reviewer thought it should be FAR 15 sole source complete with POM and PNMs, where all we did was ask for a price breakout. I realize different CO's have different preferences. My frustration is that this causes a lack of standardization and a blurring of the intent of the FAR. My policy has been tell me upfront what you want and I'll do it, to get on the same page with the CO especially in the beginning. I also like to be aware of and understand the rules and applications to provide suggestions to make the process run more efficient, avoid protests, catch missing steps, ensure the file is properly documented, etc. I'm totally ok if the CO disagrees or wants go about a different way because your right the CO is signing it. Part of my intent is separating what is the required by regulation from CO preference, not to bludgeon the CO with some regs showing where he/she is wrong. By this I want to say this is what is required, the CO may have this preferences, and this is how and what to ask to get clarification. Some CO's is difficult to get a well articulated expectation or to even know what there expectations are, I have even come across some CO's so novice that they don't know their own preferences. It's very hard to work autonomously if there are no set this is how you do it procedures. My stated acq plan was to use FAR 13.5 procedures to procure this 8(a) sole source using SAP methodologies which means memo the file the results of negotiation.
  4. Thanks C Culham, I'm dealing with a KO who spent his entire career in FAR 15 and has not much familiarity with services. So when FAR 19.808 mentions "negotiate" that triggers the full FAR 15 process of technical evaluation by an engineer, a cost analysis by a cost engineer, preparation of a POM, clearing the POM through legal for clearance to negotiate, meeting minutes documenting negotiation, and a PNM finalizing the negotiations. We are replacing 21 doors. Would you consider the following a "negotiation": 1. Contractor rolled up pricing in a lump sum line item for base security, labor, etc: I asked for a price breakout to understand the price and determine if its necessary and reasonable. I don't consider this a "negotiation" 2. Contractor found some efficiencies in reviewing its proposal for a breakout and returned a revised proposal with the breakout. I don't consider this a "negotiation" 3. Contractor shows a breakout from a subcontractor, and some assumptions of cost the subcontractor made were not required for the subs work. When this was pointed out the contractor's sub removed the unnecessary costs. The overall proposal went down as a result. I don't consider that a "negotiation" especially in this case. I define a negotiation as when the Government's justification of terms and conditions such as quantities and prices don't align with the contractor's proposal and there is a wiggle room where an agreement can be reached. It's not really that
  5. If the Government bought a cage whose purpose was to keep people inside based on the stated purpose I would reason that the cage is not a commercial items because only certain authorized agencies within the Government has the authority to lock people up. If the Government bought doors that required a specification to some intel standard of sound attenuation and signal shielding and I would also reason that a door requiring those specs are not commercial off the shelf items either. Both of these scenarios arose and caused fierce debate. The cage and doors are mass produced and the stated purpose didn't matter according to the proponents of commerciality. They argued you can buy cages and doors from Grainger and other commercial vendors. My view is that those cages are not intended to incarcerate or deprive someone of their freedom (lawfully), but are to keep mail and inventory safe...in away I see that in that it keeps people out rather than in. Doors: if the doors must meet some governmental guidance or reg that is definitely not an off the shelf. These doors that are at the center of this post did have such as spec, but was found to be a copy and paste mistake from a previous request and not necessary to this purchase. The doors are off the shelf exterior doors. There is customization to install the door hardware such as egress and panic bar and door closure hardware.
  6. The project is OCONUS. SCA or Davis Bacon Act does not apply. There are no wage determinations issued by DOL because it is out of the agencies jurisdiction and not all US labor laws don't apply.
  7. Yes. It's only doors not frames and trim. The doors go on modular office building listed as equipment rather than real property. Replacing doors that have become deemed unserviceable due to age and weather is an act of sustainment. Army DA Pam 420-11 that provides work classifications between maintenance, repair and construction. Similarly Navy reg OPNAVINST 11010.20H, chapter 4(1)(c), dated 16 May 2014, provides that “sustainment” or “ST” is defined as, “the maintenance and repair activities necessary to keep a typical inventory of facilities in good working order. ST includes regularly scheduled maintenance as well as cyclical repairs or replacement of components that occur periodically over the expected service life of the facilities (e.g., roof or HVAC replacement).” The DA PAM 420-11 is attached with highlighted passages showing this is a service. Door replacements are done by private households, local, state, and private business as well as federal government...its commercial service action performed by door installers. DA PAM 420-11.pdf
  8. Scenario: An 8(a) sole source to replace weathered doors at an OCONUS base was issued as an RFP because the dollar value is above $500K. After a huge debate with legal as to if this was a service or construction, my argument won that it was indeed a service. I used FAR 13.5 procedures to issue the RFP. The proposal was received and I analyzed cost. The contractor had lump sum line items that I requested to be broken out into basic elements so that I could understand the cost. During this explanation of costs it was revealed a subcontractor for the base security system did not have its security electronic hardware on the doors, and it was assumed there was base security electronics on the doors, but will probably be installed during the contract POP. However, the PWS did not go into detail the work needed from the base security contractor. It just said the base security contractor will be required to connect or disconnect its proprietary security hardware. This was clarified with the 8a contractor who reduced its line item price to show only half of the base security, the connect part, would be needed to performed because there is currently nothing to disconnect. Base security wanted the line item to remain because the doors are expected to be added in the future with the base hardware system, but will on. By the way, I believe including a cost line item for a currently nonexistent security hardware in FY22 for an anticipated action in FY23 is a bona fide need violation, but I would digress from this topic. The issue of this post is applying correct negotiation procedures. At the dollar amount given a formal IGE was not required, I call it a Government Estimate. The proposal disagreed with the Government Estimate, and the Government Estimate was at best a guess based on previous pre-COVID contracts. There was no formal Government Estimate, no formal technical PDT team, just an environmental engineer reviewing the technical. I would argue that for a commercial service contract that the contract specialist could fully perform the technical analysis for doors as this is non-complex in nature requiring specialized expertise. The Government agreed with the contractors proposal, the big difference was number of days that impacted per diem, truck rentals. The Government did not take into account the logistics of moving people to a remote OCONUS area from CONUS basically. I wrote this all in a price fair and reasonable memo. First Issue: I got scolded for not doing a POM, getting legal review and clearance, and then documenting in a PNM. I don't see where a formal negotiation took place, I just asked for a cost breakout to unfurl the contractor's rolled up costs for line items. So then I had to write a POM that has the Government Position, Objective, then the PNM with the same duplicated position and objective information, but closing it with the negotiated final decision. In the past with a different KO, we would just get on the phone with the contractor and write-up the decided items in a price fair and reasonable memo, not the more rigorous FAR 15 negotiation process. In FAR 19 where it discusses an 8a sole source it says negotiation will be done with the proposal. The new KO is interpreting that to mean FAR 15 negotiation procedures. If you have an 8(a) sole source for a commercial service, is it wrong to apply simplified procedures and FAR 12 to the acquisition, in that it should only be handled with FAR 15. FAR 13 steers away from POM/PNM's and allows it all to be documented with informal memos. It's my understanding that in a construction there is RS MEANS that details out line item costs, and there is not a formal detailed price book for services for which a cost engineer to provide a cost analysis from which is build a negotiation position. It is my understanding that a negotiation occurs when the contractor explains its proposal, and the Government explains its estimate and there is a disagreement with wiggle room where both parties can resolve the gap. Is it dangerous to use terms of clarification, discussions, POM/PNM, negotiation from FAR 15 applied to an 8(a) sole source for commercial services? I believed I was doing FAR 13.5 so I neither clarified or discussed with the contractor; the nature of the exchange was to understand the line items of cost; to clarify if you will. According to our policy oversight folks anytime you have revised proposals, that's a negotiation that requires documentation, but didn't specify what type of documentation. The KO decided it had to be a POM/PNM after the fact despite the Price Fair and Reasonable in the file. The term "negotiation" in the world of the FAR is it wholly owned by FAR 15? So if you do any sole source action, 8(a) sole source, that is non-IFB you must develop some form of a pre-negotiation objective, get authorization from to engage the contractor (business clearance), and write a PNM. The Army discusses POM and business clearance in AFARS 5115 for FAR 15 actions. FAR 19 8(a) sole source says its negotiated, but not how it will be documented, FAR 13.5 does talk about negotiation or refer one over to using FAR 15 negotiation procedures. Not sure in the future how to interpret documentation requirements or what is correct procedurally. I would like to know because so many KO's have wildly different interpretations. Second issue: The KO says the POP on a service must begin immediately after the effective date of award, so if I award on Friday, the POP on the 1449 must begin the following Saturday, and you can't have a gap of time because you would need a Notice To Proceed (NTP). You can't award on the 16th of Sept and have service begin on 30 Sept. The only thing I found is that the effective date starts the contractual binding. I'm not sure who is misinterpreting "Period of Performance" (POP). I thought one could award on Friday (Effective Date on 1449), and begin the POP on the following Monday. I had a contract where the service could only be done during whale season, which is somewhat of a moving target; how could this POP commencement rule be so stringent? I thought maybe erroneously the KO had discretion as to when to begin a 12 month service such as beginning on the first day of the month, but awarded the contract sometime mid month, so the POP will be for whole months and end on the last day. Not that if you award it on the 16th, the POP in the delivery section of the 1449 must begin on the 17th.
  9. Excellent commentary from everyone; thank you all! FAR-Flung: Good point about the Davis Bacon Act. Would you consider replacing weathered doors with custom made doors, and a ramp with hand rails installed for a pre-fab kit and affixed to a building opening also to be RPIE? Would it make a difference if doors, ramps, and HVAC units are going on a modular trailer type unit not classified on the books as real property, but classified as equipment? C Culham: I didn't know the OMB issued a letter concerning this topic; great find. Our legal reviewed the Acq Strat and found no legal objections. I believe we meet the basic definition of a contract based on the legal review.
  10. I often come across a request to replace HVAC in a building that often turns out to be more of an upgrade requiring a lot of construction. Suppose a one to one replacement of an HVAC is solicited to an 8(a) sole source. The proposal is returned and it turns out a concrete pad has to be poured and stead of pre-fab pad laid down, electrical upgrades are required; requiring an electrician, duct work needs to be added and rerouted which will require walls to removed cut into, trenching is install coolant lines are needed. I noted that the HVAC Tech on the DBA WD performs installations. Place of Performance is on a DOD Base. If these construction cost elements are incidental to the installation of the HVAC unit, that is, labor is above $2,000 but less than the SAT, and materials to install (electrical conduit, wires, breakers, etc) is above $2,000 but less than the SAT and together represents about 10% of the cost the the HVAC unit, Can the KO lawfully execute a contract using a SF 1449 by approaching the procurement as a supply incidental construction? Or does the construction elements, nature or work (needing DBA HVAC Techs, electricians) necessitate the use of a SF 1442 and applicable construction clauses and not including these would make the contract non-compliant with Davis-Bacon Act and therefore an illegal an unenforceable contract? The contract will probably execute and contractor take the proceeds not matter what form its on, but imagine if an event occured causing the contractor to want to walk away, but the contractor's attorney release the contractor based on these issues? Suppose this action where done OCONUS where SCA/DBA didn't apply.
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