joel hoffman

See 52.237-10 , Identification of Uncompensated Overtime for example. If the company’s normal practice is not to pay for salaried overtime, then there is no additional expense to bill or to be reimbursed. See also 37.115 Uncompensated overtime.

By the way, note that they are synonyms of each other. Both aspects - doable and sensible are important.

It appears to me that, in shades of distinction between “practicable” and “practical”, the former could relate to something that is doable or reasonably possible. The latter could relate to how sensible or pragmatic an action is. Here are some Merriam Webster Synonyms for “doable”: achievable attainable feasible possible practicable realizable viable workable Here are some synonyms for “pragmatic ” practical realistic sensible logical rational I’m merely speculating..,

Acceptance of construction is a formal process. See also the Warranty of Construction clause at 52.246-21, whereby the warranty commences on completed portions accepted or on fully completed project acceptance or on any portion which the government takes beneficial occupancy of prior to completion and acceptance. Beneficial occupancy can be permanent or tempoaray. The Warranty doesn’t start on work in progress or on the contractor’s stored materials!

Progress payments do not imply or constitute acceptance of the construction materials or the construction works. Your bold emphasis above concerning assuming ownership is only applicable to “supplies tendered*”, which is separate from “approving” performance. See the following clauses, for instance: 52.236-7 Permits and Responsibilities “…The Contractor shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit of work which may have been accepted under the contract.” 52.246-12 Inspection of Construction. Discusses inspection and the separate acceptance of the work, including final acceptance. 52.232-5 Payments under Fixed-Price Construction Contracts. “…(h) Final payment. The Government shall pay the amount due the Contractor under this contract after- (1) Completion and acceptance of all work;” See also: 46.102 Policy “…(c) Government contract quality assurance is conducted before acceptance (except as otherwise provided in this part), by or under the direction of Government personnel;” There are reasons for the government assuming ownership of partially completed work and for stored materials either on or off site. The contractor retains responsibility for securing and protecting the stored materials and the in-progress works. However, he government doesn’t “accept” the materials to be incorporated or the partial progress of the construction works, unless there are specific provisions for separate or partial acceptance. “Supplies*” are not “materials to be incorporated into the work.”

I didn’t see any reference to or description of “journeyman” in policyguy’s reference. Perhaps I overlooked it. Honestly, why don’t you ask your source person what they mean and where it’s described?

Nope. It was simply a joke. I was surprised when that was the first definition that popped up. No offense intended. From experience over 52 or so years, the term generally refers to someone who is experienced and qualified for their job in their trade. And it is above an apprentice level but below a senior level in an organization.

There are plenty of references to what a journey level position is on the web. Why not ask the person who referred to the term what they meant? P.S., don’t use the definition for a journeyman athlete…🤠

https://www.acq.osd.mil/asda/dpc/ce/p2p/docs/transparency/DoD Line Item Guide Updated May 2023.pdf

That’s the way it should work, although they probably won’t reduce funds before that… they have to determine award fee, if any and fund it.

To add to the above, the contractor might embrace the government’s concerns. In addition, you must be fair to all those firms included in the competitive range. I don’t know why you are going to conduct discussions or what you intend to discuss with other firms. Edit: But be sure to remember that, in an LPTA acquisition, you aren’t allowed to seek enhancement of proposals beyond the minimum requirements or to compare the relative merits of non-price aspects of the competing proposals. Best value here is the lowest reasonably priced proposal that is technically acceptable - based upon the evaluation criteria identified in the solicitation.

Patrick, if the evaluation factor requires the offeror to demonstrate how it will provide sufficient manpower to perform all janitorial services each month, that could be a topic for discussions (negotiations). I don’t know how the evaluation criteria is worded in the solicitation. If it is highly subjective, then you could have some interesting discussions. I think that the government should explain why it considers the “submitted” manpower inadequate to complete all required monthly janitorial services. Then, ask the offeror to justify the adequacy of its proposed staffing… The offeror might agree and offer to increase its staffing levels. Or the offeror might convince the government thst it can complete all required monthly services. We dont know the specifics of the RFP. If, during the discussions, after the proposer responds to the government’s concerns or position , the government considers the risk of non-performance at the proposed price too high, I think that it should clearly inform the proposer of such position. I can’t completely frame or “construct” the government’s “questions” for discussions. Don’t have the solicitation or proposal at hand to independently frame the negotiations/discussions. Ive conducted many discussions and negotiations. These are my ideas, based upon the limited information available here. Hope it might help. 🤠

Patrick3 said “It's a FAR 15. It's LPTA as well. If you would use that in discussions, how would you construct that question to be asked?“ Since this is an LPTA, if the firm”s price proposal is competitive but you want to eliminate it from a competitive range for discussions based upon a technical deficiency, you will have to establish that it doesn’t meet the minimum solicitation requirements. Patrick3 said: “…the vendor didn't submit enough manpower the technical panel suggests is enough to complete the project every month, is that enough to remove them if we have discussions?. “ Patrick, a “suggested amount of manpower”, enough to complete the (janitorial services) every month is likely not a defensible reason to declare that the proposal is deficient in order to exclude the firm from the LPTA competitive range. The solicitation must identify minimum standards of acceptability for the factors being evaluated. See: “FAR 5.101-2 Lowest price technically acceptable source selection process. (a) The lowest price technically acceptable source selection process is appropriate when best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price. (b) When using the lowest price technically acceptable process, the following apply: (1) The evaluation factors and significant subfactors that establish the requirements of acceptability shall be set forth in the solicitation. Solicitations shall specify that award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors… …(c) Except for DoD, in accordance with section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232, 41 U.S.C. 3701 Note), the lowest price technically acceptable source selection process shall only be used when— (1) The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers; (2) The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements; (3) The agency believes the technical proposals will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal…” ——————————————— If you can establish that it doesn’t meet the minimum technical solicitation requirements but the price is otherwise competitive and has the possibility of being the lowest priced offer if the offeror can cure the deficiency, you can include it in the competitive range for discussions. Then you must indicate to or discuss with the offeror what is deficient about the proposed manpower levels. See: “15.306 Exchanges with offerors after receipt of proposals. …(d)(3) At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond…”

Thanks, Patrick. I’m quite frustrated right now after midnight about my inability to move between screens on my iPhone without being logged out of the forum. I quoted portions of your above posts and typed responses but when I go to another screen to look up and copy FAR or other references to paste here, it logged me out and wiped out everything that I typed or quoted i will will rewrite my response in notes in the morning, then paste it here.

What is the basis of award? And is this a Part 15, best value tradeoff or is it a Part 12 commercial services acquisition with trade off? You mentioned “competitive range” you don’t have to answer the latter questions if it would identify your acquisition. However- to me, if you have concerns about the adequacy of proposed staffing levels, that is exactly the kind of thing you should address during oral discussions.

On 5/24/2023 at 8:43 PM, Fara Fasat said: “The impact is this: if the prime can treat the subcontract as a commercial services subcontract even though it is CPFF, then it will only need to include the clauses applicable to commercial subcontracts.” and: “I don't know why the businesses decided this; I was pulled in on the clause question. If the decision is already made, why are you trying to figure out the right thing to do? Concerning “what is right”? and the right thing “for whom”? Whether CPFF is the right thing for the prime? The established standard prices for the services are apparently known. There is a FFP unit priced option available. With either CPFF or unit priced with estimated quantity commercial service, the total quantity is unknown. There is less risk to the prime with a unit priced commercial item contract with the ability to simply adjust the quantities than one that is CPFF, where both price and total quantity are unknowns. Either way, you said you would use only clauses applicable to commercial services. Sorry for the font size. Can’t adjust it on my iPhone.

Clarification : Nope, it’s obviously exempt. I do agree with those who say that the KO should craft the solution

See below

And then applied consistently to all orders…

Hey, Fara is going to do what he is going to do anyway. It will be interesting what will happen if there is a change or REA involving the cost plus sub, claiming exemptions from any normal requirements pertaining to the sub, based upon commercial services exemption. Edit: I think that it is rare that a FFP prime contractor will issue CR subcontracts for anything other than minor requirements. I may be wrong. The one that I was involved with turned out to be a financial disaster for the major DoD prime and the associated delays also impacted government treaty schedule obligations. At least we were able to successfully assign most loss of productivity and delay REA back on the CR sub and also successfully documented how it impacted the productivity of the other trades. 🤠

Don’t know.

Yep T&M is okay.

How so? No, a prime contractor wouldn’t necessarily have to compete its subcontracts after being awarded a FFP contract.

Jacques, the prime and sub can agree to price a subcontract as CO. But it can’t then declare it to be a FAR commercial service for the expressed purpose of avoiding required flow downs of the non commercial service contract clauses in the prime contract to its sub. That’s what I’m saying. It’s not a “commercial service” under the FAR unless it’s compliant with all the applicable Part 12 procedures and requirements, including pricing in 12.207. And, of course it can’t negate the FFP contractual relationship between the government and the prime.

Fara is the one who said that the services are priced “at standard rates”, and “[use] established rates”, which isn’t on a cost reimbursement basis. Fara said the only problem is that the amount of this effort isn’t known. One can’t simply pick and choose what paragraphs of Part 12 it wants to use to classify a subcontract as a commercial service, then ignore 12.207, which doesn’t provide for commercial service contracts priced other than FFP or other FP types or T&M or labor-hour. Fara wants to classify the subcontract as one for commercial services in order to use commercial items clauses to justify avoiding inclusion of other required flow down clauses.