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joel hoffman

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Everything posted by joel hoffman

  1. I’m not sure whether this is a pre-award question or post-award, contract administration question. It concerns the “contractors workforce”, although not the “contracting workforce.” The answer depends upon whether it is pre-award or post-award as well as answers to the questions raised above by respondents.
  2. Yes, I’d start there first. That ought to be obvious. Of course, I realize that direct communications (especially oral communications) between contract administrators/KO and contractors is often an anomaly these days.
  3. I’m also curious, If your employees will essentially be stuck on base with no off-duty transportation provided for, was this addressed in your proposal or otherwise considered before award?
  4. Therefore, I’d also say “Read the Contract” as a whole. * added by me Echoing ji: **added by me It seems to me from the limited information so far (e.g., what are the XYZ guidelines(?), any pre-award inquiries(?), any pre-award discussions or clarifications(?), price proposal details(?), etc.), that the government has stated its intentions in the “contract”. Since this is an awarded contract, I think that the contractor should have been aware, before award, the meaning of the statement “Housing and other logistical support will be provided by the Government.... in accordance with XYZ guidelines.” This is a CPFF contract. Therefore, it was apparently a negotiated competitive or sole source acquisition. Why is this issue being raised now, after award? @ReadTheContract848, were you or others in your company aware of the stated requirement for government accommodations in the solicitation and what the JTR actually includes in addition to per diem rate limits, as applicable to the stated “government accommodations”? You indicated that your personal “perspective” contradicts the stated solicitation and subsequent contract requirement… Something in the pre-award process for this CPFF contract is either unspoken here or seemingly amiss…
  5. Is this a hypothetical situation or a current contract? May 1, 2024 has already passed. Is the May 1, 2025 start date a current date for the option? Theoretically, there is not a “rule” against this, to my knowledge. However, this would skip one day in the middle of the workweek in April 2005. If it is the existing term of the contract option, I imagine the contractor would have priced any costs that it would incur that day somewhere in the current contract price. If you want to change the start of the option period to include a one day delay, you can’t unilaterally do that. You wouldn’t be awarding it according to the current terms and conditions. This would require a supplemental agreement, in my opinion.
  6. Maybe FPRS, Federal Procurement Regulations System for Civilian Agencies, which was replaced by the FAR?
  7. “We” were the Mobile (AL) District of the US Army Corps of Engineers. In the 1990’s, I was Chief of the Construction Division Contract Administration office, which among other duties, negotiated all sole source 8(a) construction contracts, conducted all Part 15 competitively negotiated construction source selections as well as some technical type service contract source selections. Three of my employees, who negotiated 8(a) contracts and I worked directly with the Chief of Contracting and his other KO’s for those contracts. ”We” coordinated closely with the Atlanta Regional SBA office.
  8. Whether or not a firm protests would likely depend upon the circumstances. Also, whether you are cancelling the acquisition or simply rejecting and replacing the firm. @LindaF, the original poster, didn’t explain which scenario she is asking about. We occasionally rejected sole source 8(a) proposals for various reasons and in coordination with SBA, to replace the SBA’s nominated firm with another firm. Never Protested. We once cancelled a sole source 8(a) procurement for an urban street overpass at a railroad crossing in northern Mississippi, due to unreasonable pricing and unsuccessful negotiations to reduce it. It was also obvious that the arrangement was a front for a couple of non-disadvantaged subcontractors. We converted it to a competitive small business set-aside. The resulting contract was something like 40% lower in price than the original, sole source Proposal. ———————————— Oddly, one of the original proposed subs apparently confused me with somebody else. He called me during the second RFP pre-proposal period to ask if I was “still interested” in being a sub for the converted acquisition. I informed him that I was the COE person that he had negotiated with on the 8(a) procurement. He became flustered, apologized and ended the conversation!
  9. So, you don’t know if they were professional Architect/Engineer services, as generally defined in FAR 2.101 and 36.6 for such activities as the planning, mapping, design and engineering services for real property, also including soils engineering, roads, airports, dams, levees, etc. that are required to be performed or approved by a person licensed, registered, or certified to provide those services. That is versus engineering services for machines, materials, instruments, processes, aeronautics, astronautics non-building (or e.g., non-flood control) systems, software and hardware, etc.
  10. Ask the assigned/appropriated point of contract for this acquisition. It doesn’t matter what interpretation we give you in this Forum.
  11. I read the Snyder Docket that Bob provided the link to above at https://www.supremecourt.gov/DocketPDF/23/23-108/299752/20240205125638057_Snyder Joint Appendix.pdf It appears that Mayor Snyder was prosecuted for soliciting and accepting a bribe(a) from the owners of a Peterbilt dealership for the purchase of two sanitation trucks for the City of Portage, Indiana. In addition, there were indictments for other bribes or gratuities. I didn’t see where the link includes the outcome of the case concerning the Peterbilt trucks. There were several days of testimony concerning the alleged nature of payments to Snyder for various alleged consulting services as well as interactions and communications between the parties. Im not a lawyer.
  12. Ok, so the Feds can possibly prosecute him for accepting a bribe if they can prove it. The SCOTUS remanded the judgement of the US Court of Appeals for the Seventh Circuit and remanded the case for further proceedings consistent with the opinion. The former mayor is probably broke by now due to legal defense costs…
  13. Bob, I reread and reread the decision looking for a connection to federal funds. I found that the only stated nexus is application to any jurisdiction “[that]receives more than $10,000 in federal funds per year”. It didn’t specifically mention any federal funding for the purchase did it? “Section 666(a)(1)(B) provides: "Whoever ... being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof [that receives more than $10,000 in federal funds annually] corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with [ANY] business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more”; ... shall be fined under this title, imprisoned not more than 10 years, or both." And the maximum confinement penalty for an improper gratuity to a non-federal employee would be five times (10 years) greater than the confinement for a gratuity to a federal employee (2 years) if the statute were interpreted to include gratuities to non-federal employees. To me that would be ridiculous.
  14. Bob, wasn’t Snyder convicted under the Federal gratuity law, which is the subject of the appeal? It doesn’t appear that there was a prosecution for accepting a bribe nor was there any mention of proof of that type activity on the locally purchased fire trucks. . There was no prosecution in state courts for bribery or gratuity. Edit: apparently Bob mentioned federal funding being involved here?
  15. Agree. That’s what I was originally trying to say. And one doesn’t have to read four pages but I was unable to “copy” the text on my phone that I wanted to quote . Edit. See this from page five of the Decision: “The question in this case is whether §666 also makes it a crime for state and local officials to accept gratuities-for example, gift cards, lunches, plaques, books, framed photos, or the like that may be given as a token of appreciation after the official act. The answer is no. State and local governments often regulate the gifts that state and local officials may accept. Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities. Rather, §666 leaves it to state and local governments to regulate gratuities to state and local officials.”
  16. The first four pages of the Decision explain the distinction, for state and local officials between accepting Bribes to perform an action and receiving a gift or gratuity sometime after the action.
  17. Then shouldn’t the crime have been “accepting a bribe”, not a gratuity?
  18. It seems that Congress, when it amended the original statute applying to state and local officials, did intend to differentiate between “rewards” to federal officials and state and local officials under a broad federal statute. The government never established/proved that there was any action or agreement between Peterbilt and the mayor to establish a bribe or connected gratuity to influence the selection of Peterbilt. State and local officials often receive gifts from the public or vendors. Why would the federal government define a uniform standard for post action gifts to non-federal employees when there are various non-federal standards or rules. After the Air Force Academy, where Honor and Ethics were Hallmark principles, continuously taught and stressed, I noted that the active Air Force climate was less rigorous in general practice but still evident. After active duty, I initially went to work for a City Government, where the standards for gifts was looser and where sponsored golf outings or other activities involving multiple public entities were common. There were state laws governing proper behavior and interrelationships, not involving bribery to a degree. But it appeared that Congress did not want to standardize such acts and prohibitions. Granted, a $13,000 gift or payment to a local official sometime after contract awards looks suspicious. However, the federal prosecutors apparently didnt tie them to any pre-award actions. But the amended federal gratuity statute didn’t apply to the situation. At least that is my viewpoint, partly based upon observations of local laws and widespread practices.
  19. Per the thread title, it is a best value, trade-off. Per the opening statement, technical is more important than price. Ergo, it is not LPTA.
  20. To elaborate on what Don described: “52.2804-19 As prescribed in 4.1202(b), insert the following clause. “ Incorporation by Reference of Representations and Certifications (Dec 2014) The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.” (End of clause)” So, no need to directly incorporate the Provision (which doesn’t include the certification and responses), right?
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