|
|
 |
|
joel hoffman
-
Joined
-
Last visited
Posts posted by joel hoffman
-
-
Yes and sealed bidding is still widely used in state and municipal contracting for construction and some other acquisitions, such as for standardized supplies and commodities. I remember bids for trucks and cars with standardized requirements. Other services such as painting buildings, tuck pointing and patching brick buildings, etc.
-
To clarify, as briefly as I can,
The basis of award in Section M would include wording to the effect that the successful proposal had to conform to all RFP requirements, as amended at award. Any deviations or other material deficiencies found in the proposal would render it unacceptable for award.
Thus, the government had the fundamental obligation to understand the RFP requirements and to reasonably review the proposal for conformance therewith.
Discussions with those competing proposers in a competitive range ( or with a single proposer if only one proposal received) must, as a minimum, advise them of any known deviations or design deficiencies (e.g., design-build), request clarification if conformance wasn’t clear. The Govt should discuss weaknesses or undesirable features of proposals found, etc. Also discuss any pricing issues.
The successful accepted proposal would have to conform with the final RFP requirements…
Sometimes, the RFP would be amended if necessary to accommodate an advantageous non-conformance or suggested revision - so that all the competing firms could compete on the same basis…
Sometimes, of course, it might not be reasonably possible for qualified reviewers to catch every non-conforming proposal aspect. The reviewers might not have enough information and weren’t required to technically review the sizing of every proposed piece of equipment such as pumps, electrical equipment, etc , at the preliminary design proposal stage.
When the problems were discovered after award, the RFP requirement at award would override the design or accepted proposal..
Ok, so this topic would take at least an hour to cover in our Corps construction contracting and Design-Build contracting classes, including the nuances, etc.
-
On 8/27/2026 at 9:01 AM, C Culham said: Again a different matter than UCF. By example consider the Federal Highway Administrations "FP-24". It would fit into the UCF in Section C, right? As could the CSI for technical specifications could they not?
_________________________________
The Standard Specifications for the Construction of Roads and Bridges on Federal Highway Projects (FP-24) was issued in 2024 replacing the FP-14.
This is the current edition of the FP.
________________________________
Here is the Order of Precedence-uniform Contract Format (Oct 1997):
“Any inconsistency in this solicitation or contract shallbe resolved by giving precedence in the following order:
(a) The Schedule (excluding the specifications).” [This is Part I, which includes Sections A-H, including “the description and statement of work” in Section C but excepting “the specifications” in Section C]
“(b) Representations and other instructions.” [This is Part IV, including Sections K-L-M]
“(c) Contract clauses.” [This is Part II, Section I]
“(d) Other documents, exhibits, and attachments.” [This is Part III-List of Documents, Exhibits, and Other Attachments in Section J]
“(e) The specifications.” [This is the Specifications in Part C]
(End of clause)”______________________________
Thus, the above cited FP-24 and CSI specifications would be included in Section C in the UCF . However, they would be level (e) in the Order of Precedence.
The Section J documents, exhibits and other attachments are level (d) in the Order of Precedence.
Thus, construction contract Drawings, and various other items, such as references, soil borings, and “for information only” exhibits or attachments, pictures, sketches, etc. would have a higher order of precedence than the specifications.
This is in direct conflict with the FAR construction contract clauses that place the contract specifications higher priority than the Contract Drawings. Plus the contract clauses also defined other hierarchy levels of distinction in the details.
In Design-Build contracts, we would usually incorporate parts of the successful proposal, such as preliminary design features and drawings, descriptions of some important materials or equipment, site plans, proposed betterments to the minimum RFP requirements, etc
But we included the specific proviso that, if any conflicts or inconsistencies were discovered within the accepted Proposal or between the accepted Proposal or the contractors Final Design and the RFP (including amendments, if any) at contract award, then the awarded requirements (including any accepted betterments) would be the ultimate priority.
-
My only opinion here is that for anything other than a simple replacement or installation of a piece of equipment or other single trade simple work, etc., the use of the UCF for construction as a commercial service purchase order or contract isn’t consistent with commercial construction contracting practice. And the order of precedence clause for UCF is inconsistent too.
The standard FAR construction clauses cover the specific orders of precedence between drawings and specs as well as other standardized aspects of the drawings and specs.
Architect and Engineering professionals use one or more standard design specifications and contract organization formats, such as AIA, ASPE, AGC, CSI, DBIA (Design-Build Institute of America) , etc. for multi-disciplinary construction projects.
The Construction Specifications Institute (CSI) format covers the formats for design-build, construction specifications and for construction contract sections.
If the intent is to maximize use of commercial contracting practices, then use the professional design and construction industry formats, not the UCF and its mandatory (Dis)Order(ed) Precedence clause.
In fact, the DoD and NASA use the CSI format for the contract and technical Specifications.
-
-
This is an 18 August 2026 Government Executive article concerning an ill-fated Army Ammunition Plant to produce 155 mm Artillery Shells to send to Ukraine
-
4 hours ago, formerfed said: From what I’ve seen in either leading or providing support to teams reviewing the contracting functions at perhaps 20 offices, the problem you describe at USACE is widespread. But I need to qualify this statement by saying the 20 or so reviews were done at requests of senior agency personnel (SPE, SAO, CFO, Assistant Secretary, etc.) who likely suspected problems and needed verification that issues indeed exists. In any event, multiple interviews with program offices disclosed several issues - contracting personnel didn’t provide much guidance in preparing source selection plans or assistance with evaluations, contracting personnel tried to avoid discussions, and contracting personnel said to hold off making changes to technical issues until after contract award to the successful offeror. In addition, program office staff were requested to conduct price analysis instead of the contract specialist using program knowledge of the marketplace.
Sounds familiar, alright…
I loved evaluating competitive and sole source technical and price offers, preparing for and conducting “discussions” (YES - negotiating) and mutually resolving both technical and pricing issues.
-
19 minutes ago, C Culham said: Workforce quality and management has not been successful because "its primarily because of the way it's being done, not the rules that govern its conduct."
On 8/2/2026 at 2:57 PM, Vern Edwards said: In my opinion, workforce quality and management have been the biggest problems in procurement. A bigger problem than rules.
The rules are a problem, yes, but a much bigger problem is the manner in which they are implemented. If source selection takes too long, it's primarily because of the way it's being done, not the rules that govern its conduct.
I agree with both of you, in principle.
For source selections, I didn’t have a problem with any of the ones that I conducted or most that I participated in after the FAR Part 15 Rewrite.
However, on some of those that I participated in with other USACE Districts or observed problems with other Districts’ finished projects, I found that those organizations weren’t able to negotiate to obtain better technical and/or pricing.
Those problems weren’t due to the FAR. They often didn’t understand that they could bargain. They also simply didn’t know how to evaluate pricing or find out what caused high pricing - problems with our requirements? Contingencies?, etc. Some had no clue how to negotiate mutually acceptable solutions. As a result, they either simply asked for more funds to award and/or resorted to correcting undesirable aspects of proposals (e.g., design-build) by change order. Some didn’t use available technical or pricing resources during discussions. The problems were systematic and widespread.
-
I personally liked the FAR Part 15 rewrite of 1996/1997. it helped me learn to bargain for better performance, especially when a proposal met the minimum performance requirements but contained features that we and our client organization didn’t care for.
formerfed hit the nail on the head when saying that (many) legacy management and Contracting workforce practitioners just didn’t get it.
I’d get arguments from KO’s in other Districts on site visits and in teaching Design-Build construction that we essentially couldn’t discuss anything with an offeror that met the minimum requirements but was less than desired- that it was “technical leveling”.
Even after I told them that the Rewrite eliminated reference to technical leveling and encouraged bargaining, they’d say that was the way their organization operates and that they would have to issue changes to improve the designs or material selections…. The old forces passed on the old ways and methods to the new forces. “That’s the way we’ve always done it”.
And I’ve seen time after time when KO’s and their negotiating team didn’t have a clue how to determine why prices were higher than the budget. They couldn’t find a way to modify the RFP to eliminate or reduce contingencies or otherwise negotiate prices with offerors in competitively negotiated acquisitions.
They would usually simply go back for additional funding.
-
-
We evaluated the qualifications of key personnel that offerors proposed for many years. We identified the positions that we considered to be “key”.
We also stated in the contract that substitutions of specifically proposed key personnel would be subject to the KO’s review and approval. Any proposed substitute would be evaluated in comparison to the qualifications and experience of the originally proposed and evaluated key person.
-
Thanks, Vern. The basic problem in our discussion eight years ago was the result of certain government organizations not accepting a contract type (or any for that matter) that wasn’t specifically described in FAR part 16.
As it turns out, my proposed Guaranteed Maximum Price (GMP) contracting method was already being used by GSA more than eight years ago for certain Construction Manager at Risk (CM@risk) programs .
For GSA, the government would provide and be responsible for the design, which would be developed and finalized after hiring the CM@risk.
In my scenario, for Design-build programs, the design-build contractor provides and is responsible for the design of the project after award.
The GMP contracting method that I described is essentially the same as one approach that the Design-Build industry uses for many non-government programs and is promoted by the DBIA.
The DBIA asked me, as a member of the DBIA’s Government Design-Build Programs Committee, to show how GMP could be used in appropriate circumstances for federal government design-build contracting.
-
On 5/26/2026 at 12:20 PM, joel hoffman said: Thanks, Mike. Looks like GSA is using a form of FPI with Successive Targets for GMP construction or design-build construction projects. Ha Ha to the naysayers!
I see from an 8 year old thread where I WAS aware of the GSA method used for (“construction manager”) CM@Risk construction contracts, where GSA was providing and responsible for the design.
It uses a fixed-price incentive with successive targets FPI(ST) contract method, because the contractor doesn’t have control over the design development (maturity of the design) or design changes during design by the government.
The “target price” equals the “ceiling price” as the guaranteed maximum price (GMP).
For design-build projects, the contractor isn’t a construction manager at risk. The design-builder has sole responsibility for both design and construction. It is responsible to develop the design and responsible for the adequacy of the design. Therefore government provides and is responsible for the scope and design criteria.
Therefore, it could be feasible for design-build to use FPI with Fixed Target rather than successive targets. The GMP is based upon the Target price equaling the Ceiling price.
_____________________________
To answer Verns question above about what the naysayers said, I found the eight year old thread about the debate. I doubt that many or anyone would read it through. But I can summarize a couple of objections raised about using the method.
For other than GSA’s CM@Risk procedures, the FPI method had never used a GMP based upon the target price.
The typical FPI contracts were extremely over complicated.
I don’t want to keep debating plus am no longer involved in the Design-Build Institute of America (DBIA) quest to implement GMP for federal design-build contracts under the regulations without seeking statutory revisions.
General Zhukov said: “RFO :This update [to FAR Part 16] represents a deliberate shift from a restrictive to a permissive framework, empowering contracting officers to use novel and innovative contract structures ..."
I meant to express pleasure that the RFO rewrite appeared to loosen restrictions on using contract types and methods other than those specific procedures described in the legacy FAR part 16.
-
-
1 hour ago, Mike_wolff said: Joel, are you familiar with GSA PBS's use of GMP contracting, which we've termed "Construction Manager as Constructor" (CMc) (as opposed to the common industry term, Construction Manager at Risk). https://www.acquisition.gov/gsam/part-536#GSAM_Subpart_536_71
GSA PBS has been doing variations of CMc for 20+ years - the link above is to the current process, but I don't know how much it will (or won't) change with the RFO re-write - that part of the GSAR is still being worked on.
Thanks, Mike. Looks like GSA is using a form of FPI with Successive Targets for GMP construction or design-build construction projects. Ha Ha to the naysayers!
-
-
Thanks, @General Zhukov.
Hmm, a “guaranteed maximum price” GMP contract, using a variation or form of fixed price incentive with S.T. or F.T., like the approach that I debated several of you a few years ago in the Forum should now be “RFO FAR” allowable.
It’s a common design-build construction delivery approach in industry.
It would be suitable for large, complex projects where time is of the essence.
It does require active government contract administration by personnel who are qualified in REAL management and oversight, not just inspectors and paper pushers.
That level of “project controls”* approach and government team interaction with contractors’ design teams and design-build construction management personnel is crucial , especially so when fast track design-build is used, but is rare in my opinion and years of experience..
There are college majors for professional construction management but, to my knowledge, little or no professional recognition or Civil Service professional job series , unless they finally implemented it in the past decade. The engineer career field appeared to me to see it as a threat…
I provided a paper to the Design-build Institute of America (DBIA) Government Programs advocate in the early to mid 2010’s, describing and outlining the method, which would be similar to their commercial GMP methodology.
I think NAVFAC may have experimented with it around the time that I proposed it as a viable contract approach.
*”project controls” is an industry term for managing and tracking costs, performance, quality control, design and construction schedules, acquisition of materials and subcontractors, etc.
-
-
Ok, in refreshing myself over the FAR language regarding evaluating prices in the selection of MATOC awards, I remember that we were evaluating prices using the seed task order pricing in Phase 2 of a two phase design-build MATOC base contract awards.
We were doing that irrespective of and prior to the exemption for DOD MATOCs in FAR (now under RFO 15.104 (b)(1)(A)(3) :
“15.104 (b)(1)(A) Contracting officers may choose not to include price or cost as an evaluation factor for award when an RFP–
(3) States that the Government intends to make an award to each and all qualifying offerors.”
We did not state that “we would make an award to each and all qualifying offerors”.
We short listed a number of firms in phase I to compete for up to a stated maximum number of awards in phase 2. We didn’t intend or guarantee that we would make an award to each and all phase 2 offerors .
To my knowledge, the Corps of Engineers were never questioned or protested for not evaluating prices under this two phase approach. We determined that we were competitively evaluating prices under 15.304(b)(1) for the initial base contract awards when we used the initial (seed) task order award in establishing the MATOC pool(s) .
-
Yes, “sample task orders” do result in fictional (non-binding) pricing.
Phase two, Competition for a construction or design-build construction “seed task order” would normally result in receiving prices that would bind an offeror, if they were awarded the seed task order. Therefore, we could evaluate pricing for selection of award of MATOC base contracts, even though the base contract wouldn’t include fixed prices.
Subsequent task order competitions would generally result in price competition.
I wrote two-phase Model RFP’s that were used USACE-wide for MATOC base contract competitions and another Model for task order competitions (for design-build and for some straight construction contracting).
Too bad, this method wasn’t available government wide.
-
-
1 hour ago, formerfed said: Another point involving misperceptions is companies often don’t propose their more favorable offers in competitive situation. Pricing depends upon what the company needs to do to win or much much they want to win - how badly do they want this business, how important is it the their overall strategic plan, do they want to commit their best resources including personnel to the project, what other opportunities will they pass up, what is the likely return on the investment, who is their anticipated competition, what are the potential risks, what is the clients reputation (is the agency something they want to deal with), and so on. Sometimes a company proposes with high prices even with identified negatives on the notion it’s worth it for the added profit.
A somewhat similar situation exists with quality.
In today’s times where conducting negotiations is becoming the exception, contract awards may reflect much higher prices than what could be possibly achieved.
I agree that firms may often not initially propose their best price in negotiated acquisitions. That’s why government buyers should negotiate and bargain for better prices.
And I agree that many buyers/KO’s don’t want to negotiate or bargain for better terms/prices.
In construction contracting, I found that many KO’s in my former Army Command don’t know how to analyze pricing , didnt know enough about construction contract pricing to analyze or to negotiate/bargain. Heck many of them across the Districts didn’t even know they COULD bargain!!
-
3 hours ago, joel hoffman said: wow, that is great- if it actually happens!
Bargaining for better performance. I had numerous KO’s argue that it’s their Districts’ policy that if some aspect of a proposal meets the minimum technical requirements - even if it is objectionable or barely acceptable that they aren’t allowed to discuss that aspect with an offeror. They said they would have to issue a change after award to get what they want!!!
I’m certain that their supervisors from the pre- 1997 “FAR Part 15 rewrite” era never learned that bargaining for better performance was stressed in the rewrite”. So darned aggravating!!!
To clarify, these were design-build construction RFP’s.
-
Did They or Did They Not
in Proposed Law & Regulations; Legal Decisions
I don’t know who the “Mr. Hoffman” , mentioned in this protest is but I can assure any reader here that it wasn’t the undersigned!
I was falsely accused in a canned, GSBCA protest, about 30 years ago, of something I didn’t do. The false accusation didn’t factor into the Decision but it and my name was noted in the record.
I was extremely pissed and asked the USACE legal counsel to demand a retraction but they didn’t, since it didn’t factor into the Protest Decision.
I’ve been fully retired for over ten years, so don’t anybody associate this current action with Me. 😜
Signed: Joel T Hoffman , retired since 2016…