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joel hoffman

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  1. “We” were the Mobile 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 KO’s for those contracts and “we” coordinated closely with the Atlanta Regional SBA office.
  2. 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. 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. We once cancelled a sole source 8(a) procurement for unreasonable pricing and unsuccessful negotiations to reduce it. It was obvious that the arrangement was a front for a couple of subcontractors. We converted it to a competitive small business set-aside. The resulting contract was something like 40% lower in price.
  3. 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.
  4. Ask the assigned/appropriated point of contract for this acquisition. It doesn’t matter what interpretation we give you in this Forum.
  5. 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.
  6. 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…
  7. 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.
  8. 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?
  9. 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.”
  10. 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.
  11. Then shouldn’t the crime have been “accepting a bribe”, not a gratuity?
  12. 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.
  13. 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.
  14. 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?
  15. FAR 19.804-2 Agency offering, (a)(10) allows the agency to identify a specific source for a sole source 8(a) contract. This conflicts with the A-E selection procedures prescribed in 36.6 if the Agency skips the qualifications based competition selection procedures in 36.6 **edit- add: (to identify an 8(a) candidate for an ID/IQ to the SBA.) 36.101( b) “When a requirement in this part is inconsistent with a requirement in another part of this regulation, this part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved.” The Brooks Act A-E selection procedures in 36.6 are statutorily mandatory.
  16. NASA apparently has another perspective: https://doingbusiness.msfc.nasa.gov/documents/3128625/3479668/Helton.pdf/ec3e3094-7f6e-a30b-8a1a-32dcc3dc847d?version=1.0&t=1556915942299&download=true
  17. Set-asides for 8(a), A-E contracts are allowed but must use the Brooks Act, Quality Based selection procedures. This is also discussed in Appendix J of EP 715-1-7. And yes, this is an Agency document. If you want to discuss the legal basis for the policy, you could contact the USACE proponent at HQUSACE . https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_715-1-7.pdf See also: https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_715-1-4.pdf
  18. This is from the US Army Corps of Engineers Engineer Pamphlet 715-1-7 Architect - Engineer Contracting in USACE Appendix J “Procurements reserved for the 8(a) program must utilize the selection procedures outlined in the Brooks A-E Act including holding discussions with the three most highly qualified firms… “The Contracting Officer must have a reasonable expectation of receiving responses from a sufficient number of small businesses to proceed with an 8(a) procurement.”
  19. H2H, I worked on some large DOD Systems contracts with one of the top DOD contractors that I believe you worked for. And other Systems contracts with one of the three largest US engineering and construction contractors. They both avoided filing claims in lieu of submitting REAs and/or less formal methods through the Partnering process. One REA from your former firm was for $63 million. We negotiated a settlement fairly expediently after the REA submission (for a fraction of that).
  20. Vern, I didn’t mention it but in the various Corps of Engineer Districts (and the Division) that I worked for, we had personnel in the Construction Division at District or Division level assigned to make an independent review, evaluation and assessment of contractor claims, REAs and disagreements from the assigned Contract Admin Office and/or the KO. It depended upon who the action was for. We would generally involve and coordinate with Office of Counsel and the KO. We were supposed to review each situation from a neutral viewpoint. For issues short of dispute status that had merit or partial merit, we would so advise the field office. If the field office couldn’t resolve it, we would become involved in the negotiation with the contractor. If a pre-claim issue was elevated to us that had no merit, we could advise the contractor. That would sometimes resolve the issue. All claims were routed through our Construction Claims section for evaluation and coordination with Legal and the KO. If the claims had no merit, merit or partial merit, we would advise the KO in order to prepare a KO decision and/or for us to negotiate, as appropriate. There's more to it than I described but an important aspect is an independent review of issues at lower levels.
  21. Specifically? The contractor here has demanded a final decision. It’s a claim. I agree with 33.204, including the use of arbitration when appropriate. We also had procedures in place to try to resolve controversies prior to a contractor elevating it to a claim.
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