joel hoffman

Hey now. I didn’t call you a tree hugging Birkenstock wearer And drive a Subaru just because you are an Oregonian. 🤪

Ah so.

Boeing and its political supporters fought tooth and nail to win the KC-X Tanker competition. They were widely critical of EADS in the media in an apparent effort to try to block EADS from establishing a U.S. production presence. That might have influenced their KC-46 competitive price proposal. Maybe not. IMO, the real winner was EADS/Airbus. They plan to assemble 25 A-320’s per month plus the new A-220 line in Alabama…

Vern, I don’t know how the USAF could have conducted a competition for the Tanker program or can conduct the new competition for follow-on Tankers without some type of cost considerations or competition. I don’t really know anything about the next planned Tanker competition round - haven’t bothered to study it at this stage in my life. The EADS/Northrop Grumman KC-45 was a version of the Airbus A330 Multi Role Tanker Transport (MRTT). The A330 MRTT is a European aerial refueling and military transport aircraft based on the civilian Airbus A330. Per Wikipedia, “a total of 15 countries [have] placed firm orders for approximately 82 aircraft, of which 63 have been delivered by 28 February 2025.” I have laughed, seeing some photos of A330 MRTT refueling a USAF fighter ____________________________________ I do know that EADS is thriving and expanding their Airbus production lines in Mobile, AL a few miles from our home at the former Brookley AFB. After losing the KC-X Tanker re-competition, they instead committed to built the new plant in Mobile for their A-320 commercial aircraft series. The plant became operational in 2015 and delivered the first plane in 2016. A second A-320 line is underway. Airbus also bought the Canadian Bombardier’s CRJ aircraft line, now being produced as the A-220 in Canada and as a second location here in Mobile. I think that a new production line for those aircraft in Mobile is also under construction Interestingly, the Mobile A-220 location was initially developed because Airbus was concerned that tariffs were being considered for planes produced on the Canadian production lines. It was later determined that the Canadian production wouldn’t be subject to tariffs but the new Mobile line is still underway.

Case in point. The USAF KC-X tanker second round competition in 2010 after Boeing protested the initial award to Northrup-Grumman EADS in Feb 2008. The 2010 re-competition was touted in the news media as “fixed price” They also reported that it was Best Value with price being very important. Not mentioned by the news outlets was that the re-competition for the development and the first four aircraft was a Fixed Price Incentive, with 60/40 Government/Contractor share of cost growth exceed target cost. The re-competition changed the requirements and apparently favored a smaller tanker than the EADS modified A330 tanker version. According to Northrop Grumman (N-G) there was a clear preference for a smaller aircraft than the EADs A330, which was more expensive than the Boeing 767 version in the initial competition. N-G left the competition. EADS then decided to go it alone during the RFP proposal submission period. The second phase of the acquisition for up to 179 aircraft would be FFP while subsequent phases would be “not-to-exceed” (not explained in the sources I read). Might be FFP with escalation clauses? Boeing won the contract in 2011. Initial delivery to USAF was to be in 2014. It ended up being Jan 2019 for delivery of the first four aircraft. There were tremendous cost overruns (60/40 government/Boeing share) and technical problems with the Boeing KC-46, which became evident relatively soon after award and resulting in significant delays in delivery and USAF acceptance of the first four - FOUR- tankers. There were still significant technical problems after the initial delivery. The current DoD/USAF acquisition strategy is to re-compete after the first 179 aircraft... See, for instance: this 2020 Congressional Research Service report (which is “polite”): https://www.congress.gov/crs_external_products/RL/PDF/RL34398/RL34398.49.pdf and this 2010 USAF article concerning the post, initial award Protest re-competition: https://www.af.mil/News/Article-Display/Article/117525/tanker-solicitation-seeks-fair-competition-best-value/

I addressed those questions earlier. Edit: I’ll let DOGE know when the answer to the quiz is revealed.

Carl, I agree with you. Don already explained the parameters for both the cost and non-cost factor evaluations and comparisons in this scenario. There was no need for further thoughtful and professional in-depth analysis for this scenario.

Carl, I never said that it is an LPTA procurement. I was responding to FrankJon’s statement that all quotes must be considered per 13.206-2 (a)(3). My initial reference to LPTA was to state that the requirement to consider all quotations or offers per FAR 13.106-2(a)(3) implicitly contradicts 13.106-2 (b) (1) which allows for IFB like low bid procedures or a lowest priced technically acceptable scenario.** “As for “Consider[ing] all quotations or offers” per 13.106-2 (a) (3), how does one do that, if using IFB like low bid procedures - which are allowed by 13.106-2(b) (1)?” and “How does one “consider all quotations or offers” in a lowest priced technically acceptable scenario - which is also allowable under subsection 13.106-2 (b) (1)?” 13.106-2: “(b) Evaluation procedures. (1) The contracting officer has broad discretion in fashioning suitable evaluation procedures. The procedures prescribed in parts 14 and 15 are not mandatory. At the contracting officer’s discretion, one or more, but not necessarily all, of the evaluation procedures in part 14 or 15 may be used.” Carl, I didn’t say that it was a part 15 trade-off process either. I said it is “similar to a trade-off with price as the most important factor”

Frank Jon, yes actually the RFQ said “then "at least" 2 quotes of lowest price will be compared and an award made.” This indicates to me that price is of primary importance. That would allow consideration of other than only the two lowest priced quotes. However, we have discussed other shortcut methods in the forum where the field of proposals evaluated have been reduced for sake of expediency, particularly where price is most important. ** Modifying my earlier statement - if they are beyond the two or more, closely priced group of lowest priced quotes. EDIT ADD: Non-competitive quoters aren’t discriminated against here. I don’t think that the RFQ mentioned a round of negotiations and selecting firms to negotiate with. It appears to state that a selection will be made from those lowest priced quotes.

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if that were the case, yes you are correct. Per Don Mansfield that isn’t the case here. Don said more than once here in his scenario that there is no distinction between the offerors on non-price factors/proposals Did you read this thread??? Joel Hoffman said: Missing information here might be past performance and experience track records of the competing firms for completing similar work and for controlling costs on CR contracts. Don Mansfield answered:

On 3/11/2025 at 7:35 AM, joel hoffman said: I will say that while price is of major importance as a discriminator, the solicitation allows selection of other than the lowest priced technically acceptable proposal, similar to a trade-off with price as the most important factor. This is how I read what I said into the stated criteria: After determining which quotes are technically acceptable, the Government compares (at least) the two lowest priced quotes. Thus, price is of major importance to the government. It follows then, that award will be made to the offeror [assuming that the price is fair and reasonable] that is the most advantageous to the government. Thus, the solicitation allows selection of other than the lowest priced technically acceptable quote. Award will only be made to a technically acceptable quote. Since there is a comparative analysis of the two lowest priced, technically acceptable quotes and doesnt have to be the lowest, reasonably priced quote, it works similarly to a trade-off with price as the most important factor.

Ok, thanks. I don’t think the KO can justify any value in paying more when the non-price considerations are essentially equal and the most probable cost varies by $5 million and even the proposed cost estimates vary by $3 million. Unless there is some provision in the solicitation for some type of price preference. In that event, I’d be willing to call Elon Musk. We can’t afford to maintain the Status Quo deficit.

My best advice to you is to provide the re-design ASAP if you haven’t already. if there are delay cost impacts due to alleged lack of funds, I don’t think that the government can hold you liable for that but I’m not a lawyer. The contractual remedies are available to the government through the terms and conditions in both contracts. Obviously, I don’t know all the facts, the scope or magnitude of cost of the construction fix, what government entity you are contracted with or what appropriated funds are, etc. if this is DOD, I find it difficult to understand that no funding is available. You may or may not have professional liability insurance for damages. But the government is overstepping its authority if it wants you to pay the contractor directly outside of either contract. In fact, that action might be considered improper augmentation- not sure. [Edit: It also depends upon the nature of the corrections and costs to make the HVAC system work. If any of those aspects and costs to correct the HVAC system should have been in the initial design, and would have been reflected in a corresponding higher initial contract cost, the government would have paid for that anyway (less impact/delay/tear-out costs of course) - those usually aren’t considered liable damages. That was always a USACE* consideration in whether there was A-E liability involved or at least the degree of liability. End of Edit] When I recovered liquidated damages or A-E liability damages, they were deposited in the US Treasury - except in Saudi Arabia where the Saudis funded the program. When we recovered damages on contracts there, the Treasury deposited it in the Saudi Engineer Assistance Program Agreement accounts for use on the Saudi Program, including our USACE employee salaries and support costs. You are welcome to PM me in confidence. I don’t have a horse in this race. Be glad to discuss it privately with you. *USACE: US Army Corps of Engineers

If there is no distinction in the non-price factors and we are to assume that the contracting officer's determination of the most probable cost is flawless, what basis would the KO have to award a potentially higher cost contract? Missing information here might be past performance and experience track records of the competing firms for completing similar work and for controlling costs on CR contracts, what type of CR contract and details concerning the proposed fees. Are the “proposed costs” and “most probable costs” inclusive of fees?

I don’t remember reading this earlier but I agree that this directed approach could very well muddy both the design contract responsibilities and the construction contract warranty. But the bottom line is that neither contract with the government has any provision that would allow the government to unilaterally direct this solution to the two different contractors. This approach is outside the scope and terms and conditions of either contract. i will add that the A-E may want to have real time visibility of the negotiated contractor construction costs for the design solution, if it will be found to be liable for those costs due to negligent design services.

For those readers not familiar with Design-Build contracting, the governments awards a single construction contract for both design and construction of a facility or faculties or System(s). It is not an A-E contract and the prime contractor, whether an A-E firm or construction contractor is the single point responsible party to the contract.m for design and construction. The Government is responsible for adequacy and quality of any design criteria furnished under the DB contract and generally responsible for any partially developed designs furnished to proposers or the awarded DB contractor (with some exceptions). The life cycle Design-Build Construction class that I used to teach was a 38 hour course of instruction. So I’m just touching on some bssic concepts here. I was also a design engineer for about seven or eight years early in my career. I am a retired Professional Engineer, registered in two states.

I was the chief of a USACE contract administration section for seven years that also included determination of A-E contract liability for design errors or omissions. I had an employee whose full-time duties included managing and determining if there was damage liability for design errors and omissions. We never made the two parties “work it out “ for collection of damages. Edit: added. I was also one of the design-build approach experts for the USACE and for Districts and Divisions that I worked with. One of the advantages of the The D-B approach is the single point of responsibility for design and construction errors and omissions, when not the government’s responsibility.

No, it isn’t normal in my experience for government construction or A-E Contracts in DBB acquisition approach. Based on the limited information regarding the actual problem, I wouldn’t know where there is A-E liability for impact cost damages (here in the construction contract) to the government for A-E negligence in the performance of any services. The government must first determine this question. Have they done this and do you agree? There is no question here that you must correct the design at no additional cost to the government. See the below FAR coverage and A-E contract clause. ** However, whether you are liable for the cost of the change, also including such impacts as tear out and replace/delays to the contractor, etc. depends upon whether or not whether there is negligence in the design beyond the normal standards of care of design. ** 36.609-2 Redesign responsibility for design errors or deficiencies. This is the internal policy guidance. ** 52.236-23 Responsibility of the Architect-Engineer Contractor. (A-E contract) Even if you have been determined to be responsible for the cost of the change/impact damages, as stated in above posts, there is no privity of contract between the construction contractor and the A-E firm nor anything in either contract that would require either one of you to work the issue out directly including payment to the contractor between you two entities. The Government is responsible to the construction contractor for the adequacy of the design. You are reaponible to the government for the adequacy of the design and might be responsible for “damages” due to negligence in performance of your contract. Many times, there are no liable “damages” when the cost of the change wouldn’t exceed the cost to build the project had the design initially included the correct feature.

I think that a face to face (if possible/practical) interview with promising applicants would be a more appropriate place to do something like what WifWaf proposes. For involved responses like the “test” here, I would inform the candidates when making the interview appointment, so they can be prepared think about and can prepare for the interview.

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I will say that while price is of major importance as a discriminator, the solicitation allows selection of other than the lowest priced technically acceptable proposal, similar to a trade-off with price as the most important factor. The solicitation suggests that the successful quote can be higher than the lowest, reasonably priced quote, if it is “most advantageous to the government”, (whatever that means ?). Perhaps the rest of the solicitation requirements, which I didn’t read, would describe some quality differences between the products. The past performance evaluation standards don’t seem to be comparative between competitors.

As for “Consider[ing] all quotations or offers” per 13.106-2 (a) (3), how does one do that, if using IFB like low bid procedures - which are allowed by 13.106-2(b) (1)? How does one “consider all quotations or offers” in a lowest priced technically acceptable scenario - which is also allowable under 13.106-2 (b) (1)? You could probably “consider” them too high, if they are beyond the two lowest priced, acceptable proposals. I think that 13.106-2 (a) (3) is poorly worded. “Consider” is undefined. This stated requirement appears to contradict 13.106-2 (b) (1) and (3). The stated intent is to provide the KO “broad discretion in fashioning suitable evaluation procedures” (b) (1) and “[ensuring] that quotations or offers can be evaluated in an efficient and minimally burdensome fashion” (b) (3). The evaluation procedures stated here aren’t unfair to competing firms any more than a low bid, a lowest priced technically acceptable quotes or similar procedures would be. ”The rest of the competitive field” isn’t competitive, price-wise with the lowest competitively priced, acceptable quotes. Im not commenting here on the stated concerns of @FrankJon and @jjj, which may be well founded. I didn’t download and read the whole solicitation. Edit: The solicitation and evaluation procedures might have to be amended to comply with the Berry Amendment to require or give preference to US made clothing.

I don’t see a big problem with the stated evaluation criteria. Stressing price and compliance with the quality and qualification requirements. No need to evaluate higher priced quotes unless the two lowest priced quotes don’t meet the other non-priced requirements.

We will have to leap frog over those promotional posts. Unfortunately there was a response to that post after you posted here 🤪