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joel hoffman

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  1. I used to add the comment to the effect that, as differences between non-price factors become minimal, differences between prices become more important and as differences between prices become minimal, differences between non- price factors become more important. I think that the statement that “price is equal to the non-price factors, when combined” is somewhat misleading. What it means to industry is that price is the most important factor, if it is equal to all of the non-price factors combined.
  2. It doesn’t appear to be an overrun if the CLIN didn’t overrun. What was the basis of the funding level for the CLIN? Dont you have any visibility of the contractor’s earned value and budgeted costs?
  3. Assuming that the prime contract is a cost reimbursement type. What is the prime contract type erock? Iff this is a cost reimbursement contract, there should be no reason why you don’t know what type subcontract this is or what the sub has billed the prime!!
  4. Is the unfinished work directly relatable to the “new work”, e.g, you left open trenches so you could tap in at those locations? If not, then why didn’t you complete the original scope of work? If not, I see no basis for a “government delay” to completion of the task order. If you had completed the current contract requirements, the government adding additional work after two years would likely be “out of scope. Thus, mutual agreement on terms would be necessary and the changes clause would not be applicable to the new work . Thus, no unilateral authority. However, by voluntarily delaying completion for two years, I think you may be responsible for your own extended costs and indirect overhead during that period.
  5. The primary value or advantage of using numbers for me was to convey the relative importance and magnitude of the hierarchy of the various factors and subfactors for perspective to both industry and government selection teams. Many Design Build projects have numerous features of interest and importance to evaluate in competitions, because we had to award FFP Contracts. Meetings of the minds on scope, functionality and quality are vital before selection and award due to the constrictions and limitations of the allowable processes.
  6. employee stock ownership plan (ESOP)
  7. Yep, we have discussed it previously. I didn’t have problems working with with points other than the $/pt. Method but obviously many others did. My biggest problem with numerical scoring rating levels based upon a range or specific points is how others in the Army and particularly the USACE seemed to rely on an illusionary sense of precision for the rating system. In fact, they often would assign a “ point score”, to fit a desired rating level, then back into justifying the rating, rather than first documenting and describing the strengths, weaknesses, uncertainties, deficiencies, etc. , then assign the rating, which is relatively easy to do, either for numerical or adjectival rating systems. In addition to handling the source selections for my District I taught the Corps-wide life cycle acquisition process for design-build construction as well as other contract admin and various contracting courses for the USACE over the course of 30 years. My KO fellow instructors did not seem to understand the simplicity of the process to simply first identify, list and come to a consensus on the underlying evaluation comments, then let the score or adjectival rating fall out per the rating definitions. And - then they often simply tend to compare the factor roll up ratings rather than the relative differences. We can just agree to disagree, then. Just my opinion from observing the seeming confusion and Protests over about 30 years.
  8. Yes, you can do almost anything with numbers. When we were using point scoring, my boss would set up 100 points and divvy it up between factors and subfactors. However, sometimes there would only be a few points difference in ratings between proposers, so it looked like we were nitpicking. I anticipated “dissatisfaction” among the unsuccessful offerors. So I set up 1000 points, which made the distinctions to appear 10 times greater. It’s all in the eyes of the beholder. It’s easier to perceive a ten point difference than one point. I am glad that the Army banned point scoring.
  9. Actually, the old $/point ratio that my boss used to make and justify the selection decision recommendation is a (crude) form of quantification. It just didn’t make any sense to me. I began getting rid of it by first relegating it as an “indicator” of the relative value, when he assigned me to conduct some, then many of the acquisitions. When he moved to another USACE office, I cleared it with our Chief of Contracting (the primary SSA) and we dumped it. I was actually surprised that the contractor community simply accepted the $/point basis for the selection in debriefings. Probably because they were all engineers or business majors, used to numbers and formulas. Plus the whole thing was a mystery to them anyway and they respected my boss. 🤪 That was in the 1989-1991 time frame.
  10. If you think about it, it should be obvious that one couldn’t even evaluate and compare many aspects or relative merits of the performance capability of proposers or even their technical approaches, if each additional dollar cost had to have a quantitative benefit value associated with it. In my opinion, the GSBCA was out of their league or at least out of their minds by getting into the protest arena., especially for DoD acquisitions. $/?&@##% agitators!!! I don’t know why the Air Force waited two years to appeal the B3H decision. I begged our HDQTRS a year earlier to urge the USAF to appeal… Of course, I was simply an outside the Beltway employee.
  11. The FAR 15.308 “Source selection decision” language that doesn’t require $$ quantification of the additional benefits of selecting a higher priced proposal was added by FAC 97-2 in Sep 1997 (the “FAR 15 Rewrite”). Before that, FAR 15.611 “Best and final offers” (d) merely said “Following evaluation of the best and final offers, the contracting officer (or other designated source selection authority) shall select the source whose best and final offer is most advantageous to the government, considering only price and the other factors in the solicitation (but see 15.608(b):” [which described conditions for rejecting all offers, revising the solicitation and resoliciting new offers]. The pre-FAC 97-2, source selection procedures were not well written or very clear. I would read any references that I could find, especially GAO Protest decisions on guidance for determining what constituted the “best value”. I was pretty confident that we didn’t have to $$ quantify every difference between proposals to make that determination. Then we were punched in the stomach by a GSBCA protest on our 1995 Utility Monitoring and Control System overhaul of a large Army Hospital, where the GSA Board cited the 1994 GSBCA protest decision of B3H vs. the Air Force. I’d never heard of that decision before or the GSBCA jurisdiction over DoD acquisitions. This was our first UMCS project for the Army MedCom. Another USACE office had been handling those projects. We learned later, the hard way, that every single SS competition for such systems was protested to GSBCA and MedCom would shop around other Districts. In this case, the loser protested within an hour or two of receiving the selection notification and had a canned protest, because there was no time to debrief and the protest claimed errors that it could never have even known about plus they weren’t true. The only basis that the GSBCA really had was the B3H decision. The GSBCA directed us to replace the SSA (Contracting Officer) and the entire source selection Board and re-evaluate proposals. The follow-on Board came to the very same conclusions that we did and the loser appealed again. This time HDQTRS USACE appealed the next goofy GSBCA Protest decision to a court, and was able to overcome GSBCA jurisdiction by getting the Court to agree that the type of data processors used in typical building systems was not “FIP” for purposes of the Brooks ADP Act. Thus, GSBCA had no jurisdiction over our DoD acquisition. And the Court agreed that the SS Decision was reasonable. About the same time in 1996, Congress repealed the Brooks ADP act, which stripped GSBCA of its protest jurisdiction. And the Air Force successfully appealed the B3H GSBCA decision. Then the FAR language was updated in 1997 to make it clear that no quantification of every benefit is required. Due to the chronology of events, I’m fairly certain now that the language was added or at least the need to was reinforced by the GSBCA’s incorrect interpretation of how to determine the best value. This thread caught my attention and re-opened some bad memories and disgust with the GSBCA protest machinations.
  12. Before the Brooks IDO Act was repealed in 1996, the GSBCA (General Services Board of Contract Appeals had jurisdiction over protests of all ADP equipment and resources contracts, including what constituted Federal Information Processors (FIP). One prominent protest was a July 1994 decision: B3H Corp. v. Department of Air Force, GSBCA No. 12813-P, 94-3 B.C.A. (CCH) p 27,068, 1994 WL 372020 (1994), granting the protest of B3H Corporation (B3H) in a best value procurement. The GSBCA overturned the Air Force’s determination that a higher priced , higher rated offer was worth paying the difference in price. The GSBCA held that the Air Force didn’t quantify the additional benefits (including all tangible and intangible advantages) to justify its best value decision. In addition, per some outlandish interpretation (by GSBCA?), the GSBCA protest jurisdiction was extended to any construction contract that included fire protection systems, HVAC systems and other building systems with microprocessors (FIP) in the monitoring sensors and control systems. In 1995, GSBCA was requiring agencies (including DoD) to quantify virtually all advantages or benefits whether tangible or intangible to justify the best value award decision, including construction contracts. My office was caught up in one of those protests where the B3H Decision was cited as the precedent. We had to go back and re-evaluate proposals and try to quantify every advantage of a first rate offer over a mediocre proposal for a major hospital utility, mechanical, electrical and HVAC system monitoring and control system (“UMCS”) upgrade. Fortunately, there was eventually an Air Force appeal of the B3H protest of the Air Force’s best value Determination to the US Court of Appeals for the Federal Circuit ( 75 F.3d 1577 (Fed. Cir. 1996)). The Circuit Court reversed the GSBCA position that the best value determination had to be quantified to justify paying more than the lowest priced technically acceptable offer or any other technically acceptable, lower priced offer. See: https://law.justia.com/cases/federal/appellate-courts/F3/75/1577/475281/ Also fortunately, The DOD authorization bill for fiscal 1996 repealed the Brooks Act and with it, the GSBCA protest jurisdiction, thank God!
  13. No offense to Michelle. But I have seen a lot of “Ask a Professor”questions and questions in the WIFCON forum that were/are very broad with little or no context provided. In the late 1990’s and early 2000’s, I often complained to the AAP administrator about the poor quality of both the questions and answers. Finally, probably to shut me up, they asked if I would take over the A/E and Construction topic area. I agreed and was the A/E and Construction “professor” for about five year period, both before and for awhile after retiring from active civil service. During that stint, I would contact most questioners to ask and discuss the specifics with them in detail before posting an answer to the AAP website. I often included clarification of the question in the answer. Any public Q&A site can be overly general, misleading and harmful without putting the Q and A in proper context.
  14. Thanks, Carl. Yes, there is a distinction between “services” or “supply” with ancillary installation and minor construction when certain schedules can accommodate such minor construction activities. At any rate, I think my statements and request for clarification are still relevant and applicable here. The tickler was Michelle’s mention of “HVAC units”, in the plural, without any further context, including identifying the applicable schedule. That hints of more than just buying a replacement unit for a repair.
  15. This reminds me of the time that the mother said to her child, “Just don’t say another word!” “Okay” ”I said NOT ANOTHER WORD! ”Yes ma’m.” ”I MEAN IT!” ”I KNOW” ”sigh”… 🤣😂
  16. I’ve learned over the years that certain debaters in the Forum will doggedly persist until they have the last word. Recommend that somebody let the other one have it. 🤗
  17. The last time a similar question was asked, it turned out after the typical clarification exercise that it was an alteration, not replacement and they were adding several additional a/c units, complete with new ducting, controls, electrical and considerable carpentry work. That is why I mentioned the difference between supply and construction. I do agree that one for one replacement of A/C “unit” would likely be a supply acquisition, with installation services. In my experience, the equipment and materials constitute at least 65-80% of the replacement cost. EDIT: I just noticed that Michelle is referring to multiple “units”. At least three of us asked what the purpose or context of the question was. Generally, the FSS are for commercial products and services. The schedules that I reviewed awhile back specifically stated that they are not for “construction”. Michelle asked whether “this is still a service” and “is this an appropriate use of the schedules?”. Therefore, the answers depend upon the purpose and details/context of the questions.
  18. For instance is it a straight replacement “unit” for a failed existing unit? Since likely buying a commercial item to replace an existing one, the associated installation work could be an “installation service”, in support of the commercial item supply purchase in my opinion. The major share of the expense is generally the new equipment and refrigerant. Is that consistent with the description in the FSS? Or are you adding a new (e.g., additional) “system”, including the unit and associated electrical circuits, wiring, controls and mechanical ductwork, registers, etc. ? This would likely be be an alteration to an existing real property asset (construction). I’ve individually replaced six outside A/C units plus their air handling units in the attic of our church over the past 1 1/2 years as old units failed or began to fail. When either the inside or outside parts of the system fail, we generally have to replace both due to having to match coils, etc. to the currently available refrigerants. Although not government work, it’s pretty much straightforward supply and service work in my opinion. They reuse the existing, in-situ electrical service and ductwork, registers, etc. It’s not an alteration to the existing building systems. Most of the cost is for the new equipment and refrigerant. I think the labor was only about 20-35% of the cost at most. Our new units cost between $8500-$16000, including a church discount.
  19. To be able to more definitively respond, the OP would have to describe what the contract or order billing requirements and time limits are for those un-billed expenses. De-obligating the funds probably wouldn’t, by itself, justify a refusal/inability to pay otherwise allowable costs (per the above discussion), if those type appropriations are still available for payment purposes. The OP can invoice for them. It wasn’t clear to me if they already did and were denied based solely on the unilateral de-ob mod.
  20. If an acquisition is highly competitive and numerous firms can show that they could (have a high probability to) successfully fulfill the requirements for a competitive price, how about a lottery to select the winner? The government could include a stipend pool to split among those technically acceptable unsuccessful offers to help offset the cost to compete.
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