joel hoffman

Carl, I'm not arguing with you. I am simply trying to say that for the present situation, it should not be a problem, even if the hardheads insist on requiring a 30 day proposal submission period. The utility says it is ready to submit its proposal now. The parties both know when the utility can submit its proposal. No use in arguing with those hardheads right now. Send the RFP out, even if they require a 30 day response period. If the utility is ready to submit their proposal, they can submit it "early". Then, simply evaluate and negotiate the proposal. What would be more stupid is if the government refuses to touch the submitted proposal until the full 30 day period passes. For the future, I agree by all means, try to educate them. The key is that the parties should be able to agree on a reasonable proposal submission period when sole source contracting. However, unless the parties agree that a period of less than 30 days is sufficient, we should normally allow the firm(s) at least 30 days to prepare a proposal for a construction contract.

I think that 2 of us offered a practical solution to the immediate situation, it assumes that the offeror will submit its proposal within a few days, even with a 30 day allowed proposal period. Then the government is hopefully smart enough to evaluate then negotiate it after receipt. Maybe I assume too much if someone can't function without a literal FAR prescription for every situation. Then argue about the period for next time. The FAR intent is to allow industry at least 30 days to prepare a proposal. If a sole source firm doesn't need 30 days, then evaluate and negotiate as soon as they send it in.

They may be citing 5.203 (c ): © Except for the acquisition of commercial items (see 5.203(), agencies shall allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold. The purpose thereof is... " (b )The contracting officer must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond to each proposed contract action, (including actions where the notice of proposed contract action and solicitation information is accessible through the GPE)..." If the sole source offer provides the proposal sooner than in 30 days, then why can't you evaluate and negotiate it upon receipt?

Thanks for the clarification about the custom search, Bob. I see now that GOOGLE Ads appear with a "No Results" statement at the bottom.

Bob, just to advise you that I tried the Google search for "Alabama Insurance Underwriting Association (AIUA)" on the WIFCON Home Page and it did not work, whereas a search on the GOOGLE Home page provided the relevant information. I also searched for "USAA" on the Google search feature on WIFCON Home page and it did work that time. Just thought I'd let you know since you are testing the new feature. Happy Sails! Joel Hoffman

These may seem like pretty basic questions. However, one must understand how the contract was originally priced and what the contractor is now considering to be the extra work. 1) what is the basis of the pricing for this contract? Lump sum? Did it base this on unit priced labor line items in a GSA contract? 2) what is the basis of pricing for the REA? 3) From the nature of your questions, I'm not really sure what you are asking. Are you trying to determine what the contractor is actually saying is extra work and/or extra costs? If laying out the locations for the new cabinets is extra work beyond the scope of the contracted work, who performed the extra work and when? The hired labor or the supervision? If the supervision did it and it required extra time for someone to be at the site, then perhaps that is additional direct or indirect cost. If both the hired labor and the supervision laid out the site, then its tricky because the rates for the direct hire labor may or may not include amounts to cover associated indirect and supervision costs. And how much additional time was actually involved for the crew itself? If the crew was there while the lines were laid out and if it wasn't delayed any extra time while the supervisor laid out the lines, would there be any extra cost at all? I asked you earlier how the contract was originally priced.

More explanation is necessary. What line items are in the contract (e.g, hourly rates?) and what did the change or added work are involved? Also, Vern asked if there is a change clause or other provision for change in the contract...

Not sure what the problem is but one must examine both the forest and the trees in this situation.

In a unit priced contract, it is important to evaluate both individual unit prices and overall prices, unbalanced "bidding", included. And yes, I realize that the unit prices are maximums that will be competed in actual orders. I still don't understand what point the original poster is trying to make.

Some possible reasons for including option years could include: Market conditions change, thus affecting the need for long term ordering capability. It is probably easier not to exercise options than it is to terminate for convenience before the end of a multi-year contract. The Government can decide not to exercise options for certain firms. This is especially important when fair opportunity requirements on a MATOC would otherwise compel allowing a marginal firm to continue competing, wouldn't it? The Government uses the rules and evaluation tools in FAR 17.2 to decide whether or not to use and to exercise options, rather than simply contract with firm(s) for a long term. If the IDIQ is for construction, a long term contract might affect or tie up a firm's bonding capacity even with few or no orders during the period.

I thought that I was following you, except for the idea of "scrubbing" the CLIN list(?). Then' you lost me when you mentioned the "new players" that are taking a "hard line" at the CLIN level. Please explain what you meant by "scrubbing" CLINs and how the new players specifically want to evaluate pricing. I think that you recommended putting dummy estimated quantities in the schedule to be able to better visualize differences in maximum unit prices by multiplying the unit price by the dummy quantity. So, one can see a bottom line price difference as well as distinguish at the CLIN level. Now the "new players want to do something different... What, I don't know - please explain . Is that close?

Note that you will have to have "convincing evidence", not just a "belief", to support defense of a claim for defective pricing. The burden of proof is on the government to prove that there is defective pricing. As for the Hotline, I think that might involve the CID , OSI or other criminal investigative service. From past experience, they often aren't very good at defective pricing and may go off trying to prove fraud, rather than handle TINA cases. Defective pricing is an administrative action, while fraud is a criminal action - and much harder to prove. They really screwed up some situations for us where we were just trying to take admin actions. By the time they got done with it, the KO's were unable or unwilling to pursue the TINA route.

But please remember that simply because funds are available doesn't establish reasonableness. Challeng the contractor to justify the amount of the increased costs.

I assume that you need to negotiate the equitable adjustment with the vendor. Therefore, you need to obtain clarification of exactly what they are asking for. I am assuming that they have already been paid at the standard rates for the night work. Thus you say they are entitled to an equitable adjustment for the difference between CBA and night differential rates, plus a reasonable markup on those additional costs. You can discuss a clarification with the contractor before you determine your pre-negotiation objectives. Or you can develop a pre-negotiation objective then discuss with the contractor. I always like to understand the basis of the claim or request for equitable adjustment before finalizing a pre-negotiation objective. Two keys to successful resolution of claims and REA's are to understand the basis of the REA and secondly to understand the basis of what you consider to have merit. As an aside, you mentioned that the KO is "gone" and that there is no documentation that the KO recognized merit or intended to modify the contract. I'm assuming then that these assertions are coming from the contractor. Have you tried to locate or contact the KO to verify this? Is there a possibility that the contract already required a composite rate (not smart but possible)? I only mention this because of how you described the scenario. It seems funny that nothing was done over the course of a couple of years and that there is no documentation of this or any government position. However from what I've read on WIFCON, this appears to be more common than I would imagine. Contract administration takes certain skills, dedicated time and the ability to organize tasks and files among other things. Plus, the FAR doesn't have all the answers...

How about referring to them as "non-consumables" ?

Clear and succinct. Well stated.

I thought that Vern's post number 3 provided a good interpretation of the clause in question and offers a way forward. If you are helping to negotiate a cost sharing contract and your client will purchase some of the items and the government will purchase some, then can't the parties negotiate some reasonable or theoretical split of the cost of the items in question? That way the contractor can keep those items that it theoretically paid for itself. The KO can keep those items that the contractor is "reimbursed for". The KO is covered and so is the kontr. I suppose that the parties would have to work through some type of split for purchases not known at the original negotiations. Is my scenario too simplistic?

In my opinion, its called the rule of common (business) sense. Anytime you are paying the full cost or even a share of the cost of some equipment or materials which have significant continuing value/use beyond the contract or have salvage value after use on the contract, the government negotiator needs to take that into account in the amount of money to pay or allow for the item. When I worked in Saudi Arabia 25 years ago on a large project, I discovered that we had paid 100% of the cost of purchasing several expensive custom machines and custom built paver forms on some change orders, which had significant salvage value. I directed the contractor to leave all that equipment with the Saudis upon demobilization. There hadn't been any advanced agreement on who could keep the equipment, but the contractors didn't normally argue with the Saudi's. Why do some contracting specialists often seem to require some regulation or FAR cite to back them up? It should be obvious that if you are going to be charged for the purchase of non-consumable materials or equipment for a project which have significant salvage value or which may have future use, you'd better either negotiate some type of cost share or consider who should get title to the items upon completion. Contracting personnel want to be considered "professional business advisors", "business professionals", etc. Well, sometimes that requires the application of common sense, not just reading some rule or legal citation. Just my opinion.

Why do you need a specific reference? The contract needs to specifically authorize payment for off-site materials, outside the payment clause. The specific authorization can include reasonable conditions that you cited. There can be higher risks for off-site materials than with on-site materials that the government can put its hands on and seize if necessary for default. We used to include requirements in certain Corps of Engineers civil works contracts for large fabricated items like dam or lock gates, custom valves, bridge components, etc. One of our conditions was that the material had to be part of something included in fabrication, specifically identifiable for our piece of machinery or equipment, which wasn't easily convertible to other uses. Raw materials or steel that could be used for other purposes did not qualify. The contractor also had to prove title (paid invoices for the specific lots)

In case you don't know - if the government decides to pursue criminal charges against a government employee, it will not provide legal representation for the employee, even if they were acting within the scope of their employment. And one doesn't even have to have knowingly or willingly violate the law. I am aware of 2 high level civilian employees who experienced this, were convicted of felony violations of the Resource Conservation and Recovery Act (RCRA), fined and either put on probation or spent time in prison (I don't recall the specific consequences).

If it comes to that, you will receive a properly executed order, with proper delegations. It won't originate at the Garrison level.

Having worked on several projects in Panama and also a couple with the Panama Canal Commission, I could probably "read between the lines" in the referenced GAO matter. The PCC was run like a very tight and professional Corps of Engineers' District before it was turned over to the Republic of Panama. Hence the legal dotting all the i's and crossing all the t's by the PCC. I have a gut feeling that there was more to the story but that the PCC was able to use the recovery process from the contracting officer as the most practical resolution to what probably was going on.

Did you have any luck getting info from the DOT's, landfill(s) and from Mobile yet? I agree with you regarding lump sum vs. unit price (and segregate the mob/demob costs into a separate lump sum line item for each site). It takes some tech/market research to put together a reasonable contract approach for demo./debris removal.

The VEQ clause provides for adjustments to unit prices, where a variation between the actual work and the estimated quantity causes the unit cost to the Contractor to go up or down. It doesnt authorize a variation between some estimated quantity and actual quantity. That would be covered in the statement of work. NPCO and I discussed how to avoid having to deal with a unit price adjustment for his specific circumstances. When I was quite a bit younger, I drove the roads where this work will be done and I hung out at those beaches -small world ain't it? It is important to find out where nearby landfills are that will accept chunks of asphalt concrete pavement and how they charge haulers. If we can isolate all the one-time and mobilization/demobilization costs at each site and separate them from the unit price for loading, hauling and disposal, then the unit cost is essentially unchanging per unit at each site. Trucks are often privately owned as independent subcontractors. The major mob costs would probably be for the supervision, general conditions and the loading equipment I suggested that CO call the Department of Transportation Offices to obtain info on landfills and how they contract for debris removal, in addition to contacting the Mobile District Corps of Engineers. who contract for similar debris removal. The better one can define the scope of work , the easier it is to devise a contract that reduces risk for both parties, even if one cant accurately estimate the total volume or tonnage of debris.

This appears to be a relatively simple debris removal contract. Suggest you look up the Mobile District Corps of Engineers and discuss with the Chief of Contracting, who is an old friend of mine. They do a lot of this type of contracting for hurricanes and tornadoes. He can answer your questions. Or you can email me through WiFCON and I will give you his contact information.