joel hoffman

I was curious how all the offerors would have exceeded the maximum dollar amount in their proposals for an ID/IQ base contract award. It would appear that there is some type of CLIN schedule with estimated quantities of unit priced line items. The sum of all unit prices multiplied by their estimated quantities would apparently have exceeded some specified "maximum dollar amount". I'm guessing that the "maximum dollar value was based upon a government estimate for those unit priced line items times the estimated quantities. Assuming the above scenario, it would certainly appear that you could amend the maximum contract amount and/or estimated quantities, whatever was erroneous, at this point and move on.

Mike, are you referring to total prices in a CLIN schedule, based upon some estimated quantities, exceeding the Maximum Ceiling Price you identified somewhere? You apparently aren't referring to the maximum order limitation in 52.216-19 -- Order Limitations. "...(b ) The Contractor is not obligated to honor -- (1) Any order for a single item in excess of _____________ [insert dollar figure or quantity]; (2) Any order for a combination of items in excess of ______________ [insert dollar figure or quantity];..."

I'm curious what 'Whynot' thinks that the term "contract law" means. I wonder how contract law "establishes" (i.e., "creates") a price. Enforcing a price that has been agreed to in a contract does not establish that price. Whynot asked "If I have a contract between myself and a supplier or a reseller that sets a contract price or otherwise controls the price of an item - for example like Best Buy reselling Apple iPads - does this pricing scenario fall under "Prices set by law and regulation". I would be obligated by "contract law" to sell an item at a particular price." You are NOT required by "contract law" to sell an item at a particular price. If legal, you may be required by your contract to sell the item at some minimum or maximum cost. But "contract law" did not dictate that you establish this price. Your buyer may or may not accept your price or may or may not select you as the seller. This resembles a vertical price-fixing agreement. I'm not a lawyer. See for instance: http://legal-dictionary.thefreedictionary.com/price+fixing and http://www.bingham.com/Media.aspx?MediaID=5214 for discussion.

Whose snytax?? It was a quote from FAR 15.403-1( c )(2). What aspect of "contract law" are you referring to?

I think that you are reading too much or too little into this. 1. It does not say I CANNOT compare other offers. 2. "C ) Other cost estimates received in response to the Governments's request;" I think that this may be read to allow comparisons between offers. 3. Under 15.403-3 Requiring Data Other Than Certified Cost or Pricing Data see especially the last sentence below: " (B ) Adequate price competition. When adequate price competition exists (see 15.403-1?(1)), generally no additional data are necessary to determine the reasonableness of price. However, if there are unusual circumstances where it is concluded that additional data are necessary to determine the reasonableness of price, the contracting officer shall, to the maximum extent practicable, obtain the additional data from sources other than the offeror. In addition, the contracting officer should request data to determine the cost realism of competing offers or to evaluate competing approaches."

Can you please explain what you mean?

Direct comparisons between G&A rates are not necessarily meaningful. Such a comparison should be done at a higher level - i.e., as part of an analysis showing how the G&A rates and other indirect markups are applied to other costs. In a cost contract acquisition, I think that cost realism and/or "should cost" analysis is usually or often done. The price evaluation team should have access to a disclosure statement or similar information or at least information on how the contractor marks up the various costs to arrive at a total estimated cost.

This is in response to your comment that "I don't see in the FAR where cost can be compared." You can request data other than certified cost or pricing data in enough detail to be able to determine the reasonableness of the pricing. You can utilize cost analysis techniques to help evaluate this data. You can compare pricing between competing proposals for cost analysis and/or for analyzing a proposal's price realism. FAR 15.402 Pricing Policy. (a) (2) When certified cost or pricing data are not required (ii) Data other than certified cost or pricing data such as... ( cost data to the extent necessary for the contracting officer to determine a fair and reasonable price. See: "15.402 (a) (3) Obtain the type and quantity of data necessary to establish a fair and reasonable price, but not more data than is necessary. Requesting unnecessary data can lead to increased proposal preparation costs, generally extend acquisition lead time, and consume additional contractor and Government resources. Use techniques such as, but not limited to, price analysis, cost analysis, and/or cost realism analysis to establish a fair and reasonable price. If a fair and reasonable price cannot be established by the contracting officer from the analyses of the data obtained or submitted to date, the contracting officer shall require the submission of additional data sufficient for the contracting officer to support the determination of the fair and reasonable price." Under FAR 15.403-3 Requiring Data Other Than Certified Cost or Pricing Data. "(a) Require submission of data other than certified cost or pricing data, as defined in 2.101, from the offeror to the extent necessary to determine a fair and reasonable price (10 U.S.C. 2306a(d)(1) and 41 U.S.C. 254b(d)(1)) if the contracting officer determines that adequate data from sources other than the offeror are not available. This includes requiring data from an offeror to support a cost realism analysis;" FAR 15.404-1 Proposal Analysis Techniques "(a) General ...(4) Cost analysis may also be used to evaluate data other than certified cost or pricing data to determine cost reasonableness or cost realism when a fair and reasonable price cannot be determined through price analysis alone for commercial or non-commercial items." (c ) "Cost Analysis" discusses various cost analysis techniques: "(1) Cost analysis is the review and evaluation of any of the separate cost elements and profit or fee in an offeror?s or contractor?s proposal as needed to determine a fair and reasonable price or to determine cost realism, and the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency." "(2) The Government may use various cost analysis techniques and procedures to ensure a fair and reasonable price, given the circumstances of the acquisition. Such techniques and procedures include the following:" "...(iii) Comparison of costs proposed by the offeror for individual cost elements with--" "...(c ) Other cost estimates received in response to the Government?s request." We have often either required or reserved the right to obtain some type of price breakdown, if necessary to adequately determine the reasonableness of pricing on competitive acquisitions for construction, design-build and some service contracts. We try to not ask for more detail than absolutely necessary. I absolutely agree with here_2_help that you have to determine and understand the nature and basis of the cost data that you are analyzing and comparing to ensure that you arent looking at apples and oranges. However, you'd would have to do that if you were only comparing a government estimate with a proposal or proposals, too. We normally asked for the details, using some type of standardized format that would illustrate, for example, how the overhead rates were applied to the cost elements in the proposal. Bottom line in response to DOECPA's original post is that FAR does allow cost analysis of data other than cost or pricing data and it does allow a comparison between cost elements of the various proposals (as well as between a government estimate, where applicable) and the various proposals. It is hard as heck to follow the paragraph numbering in Part 15 - I gave up on the Blackberry and had to hook up my laptop in the hotel room.

Vel, I think that some of our organization's history with defining progress payment procedures goes back a long way to when the Corps had a lot of big civil works contracts. Those jobs had a lot of mobilization, long lead items, plant, materials, construction equipment, etc. We used to use special items for mobilization and prepatory work and had to figure out what and how much to pay for separately from the actual "work". Work had to be something tangible and materials had to be something we could have physical control over in the event of default or other problems. We had all sorts of policy and procedures. We were trying to avoid the traps and pitfalls of front end loading that was widespread at the time (late 70's to mid 80's when I came into USACE on a huge civil works program). Military construction side of the organization never seemed to have the same level of detailed procedures as the civil side. The last vestiges of our HQ policy organization are still in the civil works part of the organization, though they formulate policy for both civil and military works. Fabricated materials that aren't installed were not traditionally treated as "progress" or "work", either. They were treated as on-site or "off-site" materials. The contract clauses haven't caught up with modern construction practices. The contract clause "Performance of Work by the Contractor" still refers to self-performed work on the site, in determining the required percentage of self performed work, although much pre-fabrication is often done off site. I had alwyer tell me a few years ago that such fabrication doesn't count toward the required percentage.

You are welcome. The discussion partly concerned whether the payments clause "says" we pay for work in-place versus paperwork and procurement activities. Velhammer asked what other's experience was in paying or not paying for procurement activities. Well. In essence, the Payments clause has been interpreted for at least 30 years in my agency to "say" that we pay for work in-place as well as other stuff. We haven't directly paid for admin, inspection and procurement type activities. Those items should be spread over the "work". Velhammer also wondered why the (scheduling) guide spec says to treat submittals as procurement activities, but then seemingly limits reimbursement to only material & equipment delivered to the site. I explained that, in my agency, we require the non-cost loaded procurement activities to be identified in the network type schedule in our progress schedule specification to ensure that those precursor activities and their constraint/influence on the overall schedule are shown so they can be tracked. It would be somewhat difficult to identify such precursor activities on a bar chart type schedule. But that doesn't mean that we assign cost against procurement activities.

To put my answers into context, the original discussion concerned: "[paying] for work put in place and the cost of submittals are included in the respective construction activity...versus "...the submittals are tangible and have value in the event of a surety take-over, as they would likely still be used." I didn't intend to have to provide a treatise on all aspects and nuances of scheduling and construction contract administration, which entire books have been written about.

To clarify my earlier statement, we pay for "estimates of work accomplished, which meets the standards of quality established under the contract." We may also authorize pay "...for material delivered on the site and preparatory work done to be taken into consideration." In our agency, "work accomplished" generally means the physical work, which can also include fabrication of assemblies, even though they aren't "in place". Examples are piping assemblies, electrical panels, mass electrical conduit assemblies, framing assemblies, truss fabrication, bridge fabrication, etc. See also 10 USC 2307, below. Paperwork, procurement activities and inspection of the work are NOT considered, in our agency, to be "work accomplished, which meets the standards of quality established under the contract." Such costs are indirect costs that should be spread over the physical work activities. See below, but if you are referring to "prepatory work", preparatory work includes such items as cost of erection of batch plants, construction of haul roads, erecting fences, shops, etc. (less acquisition costs of equipment and materials not to be incorporated into the work, or mobilization costs." For the Corps of Engineers, "Work" doesnt generally include admin, procurement activities, shop drawing preparation and submission, etc. I don't know what it means to NAVFAC. That's why I advised to check with NAVFAC for their interpretation, because their guide spec is somewhat unclear to me. For USACE Design_Build contracts, design deliverables ARE payable under the design CLIN's. These are generally designs, though - not construction and extension of design submittals. I believe that it is the same for NAVFAC - but they may pay for extensions to design construction type submittals. The NAVFAC template for D-B contracts is unique to NAVFAC. Clause 52.232-5 -- Payments Under Fixed-Price Construction Contracts (2002) "...( Progress payments. The Government shall make progress payments monthly as the work proceeds, or at more frequent intervals as determined by the Contracting Officer, on estimates of work accomplished which meets the standards of quality established under the contract, as approved by the Contracting Officer. ...(2) In the preparation of estimates, the Contracting Officer may authorize material delivered on the site and preparatory work done to be taken into consideration. Material delivered to the Contractor at locations other than the site also may be taken into consideration if -- (i) Consideration is specifically authorized by this contract [Joel's Note: this will be specifically identified in the contract]; and (ii) The Contractor furnishes satisfactory evidence that it has acquired title to such material and that the material will be used to perform this contract. ...(g) Reimbursement for bond premiums. In making these progress payments, the Government shall, upon request, reimburse the Contractor for the amount of premiums paid for performance and payment bonds (including coinsurance and reinsurance agreements, when applicable) after the Contractor has furnished evidence of full payment to the surety. The retainage provisions in paragraph (e) of this clause shall not apply to that portion of progress payments attributable to bond premiums." Statutory authority for progress payments applicable to Military construction is found at 10 USC 2307 : "(e) Conditions for Progress Payments.— (1) The Secretary of Defense shall ensure that any payment for work in progress (including materials, labor, and other items) under a defense contract that provides for such payments is commensurate with the work accomplished that meets standards established under the contract. The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence. " DFARS 252.236-7003 Payment for Mobilization and Preparatory Work will specifically authorize payment for and describes "Prepatory Work". As prescribed in 236.570((2), use the following clause: PAYMENT FOR MOBILIZATION AND PREPARATORY WORK (JAN 1997) (a) The Government will make payment to the Contractor under the procedures in this clause for mobilization and preparatory work under item no. ____________________. ( Payments will be made for actual payments by the Contractor on work preparatory to commencing actual work on the construction items for which payment is provided under the terms of this contract, as follows— (1) For construction plant and equipment exceeding $25,000 in value per unit (as appraised by the Contracting Officer at the work site) acquired for the execution of the work; (2) Transportation of all plant and equipment to the site; (3) Material purchased for the prosecution of the contract, but not to be incorporated in the work; (4) Construction of access roads or railroads, camps, trailer courts, mess halls, dormitories or living quarters, field headquarters facilities, and construction yards; (5) Personal services; and (6) Hire of plant. This is implementing policy from a contract administration manual (Plan) for the Chemical Demilitarization Program at http://www.hnd.usace.army.mil/chemde/cap/Chap8.pdf Although the policy refers to an earlier version of the Payments Clause, the applicable wording in the 2 versions is essentially the same. I think the clause was updated to add coverage of Prompt Payment Act procedures. "8.5 Payment for Preparatory Work and Mobilization. Contract Clause, Payments Under Fixed-Price Construction Contracts (Apr 1989), states, in part: "In the preparation of estimates the Contracting Officer may authorize . . . preparatory work done to be taken into consideration." Preparatory work includes such items as cost of erection of batch plants, construction of haul roads, erecting fences, shops, etc. (less acquisition costs of equipment and materials not to be incorporated into the work, or mobilization costs. 8.6 Payment for Materials Delivered at Work Site. The same clause also permits payment to contractors for material delivered at the site, but not yet incorporated in the work. The clause gives the Contracting Officer wide latitude in determining whether or not to pay for material stored on the site and to determine what supporting documentation will be required. These determinations should be based on contract specific considerations such as job-site security conditions, the contractor's past record of paying subcontractors and suppliers, the value of the material and storage. The equirement for the contractor to acquire title is not mandatory, however, it may be appropriate to require the contractor to furnish a paid invoice as evidence of title. If conditions warrant payment for materials stored on site and adequate documentation to protect the Government's interest is otherwise furnished, then prepaid invoices should not be required. In each case, the duty to protect the overnment's interest must be balanced against the obligation to provide the contractor with timely payment. The sums so included in payment estimates will be subject to withholding of appropriate percentage, if applicable. 8.7 Payment for Materials Delivered Offsite. The contract provides that materials delivered to the contractor at locations other than the site of the work will be considered in making payments, if all the conditions of the payments under Fixed-Price Construction Contracts Clause are fulfilled. Payments for items delivered to locations other than the work site will be limited to those materials which have been fabricated to the point where they are identifiable to an item of work required under the contract. Make such payment only after the contractor furnishes satisfactory evidence that he has acquired title to such material and that the material will be used to perform the specific contract. Satisfactory evidence should be in the form of receipts of paid invoices with canceled check. 8.8 Performance and Payment Bond. "a. Subparagraph (g) of the current Payments Under Fixed-Price Construction Contracts Clause in construction contracts provides as follows: (g) In making these progress payments, the Government shall, upon request, reimburse the contractor for the amount of premiums paid for performance and payment bonds (including coinsurance and reinsurance agreements, when applicable) after the contractor has furnished evidence of full payment to the surety. The retainage provisions in paragraph (e) of this clause shall not apply to that portion of progress payments attributable to bond premiums." b. In implementing this clause, use the following procedures: (1) The contractor must request in writing that he be reimbursed for bond premiums, inclosing a letter from the Surety stating the amount of the premium paid. Evidence of full payment to the Surety will also be submitted with the contractor's request, i.e., a paid invoice with canceled check, or a certified statement from the Surety. After the Resident Engineer has ascertained that the request for reimbursement of the bond premium is in order, include payment as an added item to ENG Form 93. Forward all original documents relative to the reimbursement with the payment estimate request. Reduce the item entry for bond premium monthly in proportion to earnings in the bid schedule until final payment under the contract. (2) Reimbursement for bond premiums will be limited to those bonds of the prime contractor. Do not reimburse subcontractors or suppliers for bonds."

Now, having said all that, the Spec you quoted appears to be a NAVFAC prepared simplified version of a progress schedule guide spec, which has also apparently been tailored for a design-build contract. It has some quirks in it, which might deviate from the concepts that I described above. I asked you a day and a half ago if it was a NAVFAC version. You didn't respond. I should have simply advised you to check with the proponent agency for your guide Spec I researched the Whole Building Design Guide and found a similar NAVFAC Guide Spec for design-bid-build (SECTION 01 32 17.00 20 NETWORK ANALYSIS SCHEDULES (NAS) 08/10). I believe that the ..20" designation means that it written is for NAVFAC use. The designation "01 32 17.05 20" in your example may mean that it is a NAVFAC, design-build tailored version. You didn't explain where it came from. The cost loading portion of the NAVFAC Unified Facility Guide Specification at the Whole Building Design Guide website (Construction Criteria Base - UFGS) says: "1.6.2.5 Cost Loading Cost Loading Activities: Material and Equipment Costs for which payment will be requested in advance of installation shall be assigned to their respective procurement activity (i.e., the material/equipment on-site activity). All other construction costs shall be assigned to their respective Construction Activities. The value of inspection/testing activities will not be less than 10 percent of the total costs for Procurement and Construction Activities. Evenly disperse overhead and profit to each activity over the duration of the project." NAVFAC may allow a separate cost loaded "procurement activity" - I don't know. I suggest asking their Headquarters activity in D.C. or whoever the proponent is for your spec what it means. I was taught not to cost load administrative and management activities and that we (Army Corps of Engineers) make progress payments only for in-place construction and materials. We tell contractors to spread the management and admin costs over the actual construction activities. Having been at the District oversight level for many years, I've seen scads of contractor defaults. I can tell you that a bonding company taking over a defaulted job is very interested when we've shown progress and made payment for paperwork activities that isnt reflected on the ground when they have to come in and complete the project with remaining funds. I've also seen tours by Generals and other VIP tours where the on-site activities don't square with the reported progress in the briefing - It is very embarasing when the Chief of Staff asks why we've paid 40% with barely anything to show on the ground! Often, submittals and other procurement activities aren't transferrable or usable by the completing entity.

After having read this Progress schedule guide spec in the day time, it is more coherent to me. Ok, you ask why we require submittals and procurement efforts to be included as activities. The reason is that they are activities associated with the procurement of material and equipment that require specific actions on the part of the contractor and often the owner before the M&E can be acquired and installed. Such an activity is a constraint upon installation that we want to make sure is included in network schedules so that it can be managed, statused and observed. The schedule shows he interactions between activities, constraints, lags and lead times necessary. Let's use the example of a transformer, which often has a long lead time ("long lead item") to be ordered months before it has to be installed. It provides for installation of the transformer to be scheduled in phases - submit the transformer, govt reviews, order the transformer - do other activities while waiting for the transformer - transformer delivery - install the transformer. Makes a lot more sense than just showing one activity "called transformer". We include the trade labor resources in the associated installatioin activitiy so that the contractor knows when the labor resources are actually needed and how many. The scheduling program will allow the managers to see how much total labor is required on the jobsite and what trades are involved on-site at the same time. One can then manage the overall construction process and plan work. Ok, now let's look at cost loading. The Payments clause says we make progress payments for work in place and for materials on-site (and maybe for off-site materials or fabrication- let's not get bogged down here with details). The procurement, overhead, management costs and other markups are to be included in the associated material installation activities and/or spread over the actual installation activities, not the administrative and procurement activities. The guide spec you quoted appears to be one for design-build, so it also mentions design activities, which can be paid for. Does my explanation make sense as to why a detailed progress schedule has more than one purpose? One is to detail the sub-activities, if I can call them such for this discussion, associated with a larger activity, that are necessary to manage the overall project within the contract duration. Everyone can tell when these activities are needed, how long they take, and their interrelationship with other activities. One can estimate, schedule and manage labor and equipment resources for the actual installation process. One can tell how many electricians are needed overall and at any one time, whether that many are available and if that many will fit in the building or on the jobsite at any one time. The schedule separately allows management of he value of the contract, cash flow and measurement of progress against the total value or price/cost of the contract. Contractor can estimate when it will get paid and an owner can see when the money is scheduled for outflow. Bottom line - we don't pay for admin and procurement activities under those activities. Those indirect costs are spread over the actual installation activities.

Is this a NAVFAC contract specification?

I am assuming for this further answer that that the mod was issued to implement the technical change, stating that the equitable adjustment would be issued later. I dont know if that is accurate from what you said. At any rate, I'd estimate what it would have cost to perform the original work, based upon the best info available at the time that the work would have been done ($a). I'd try to determine what the changed work cost to perform, if possible, If not possible, use the best info possible to estimate the cost of the new/changed work when it was or will be done ($. Further assumption - there was no agreement on the adjustment at the time.

I am assuming that the absolute value of the modification exceeds the contract's threshold for submission of cost or pricing data and no exception applies. The cost or pricing data used for deleted work is based upon the current estimate of what the deleted work would have cost. It isnt necessarily based upon the original, certified C&P data. Lots of stuff usually happens after the C&P data was certified, like revised sub quotes, a better understanding of the work, etc. Does that answer your question? Qualification - the above answers are based upon "glittering generalities". There are all sorts of specific circumstances which deviate from the general rules. Recommend buying the Nash and Cibinic Books on "Government Contract Changes" or "Administration of Government Contracts"

(edited) I assume that the "mod" for the work isnt done yet. The revised work may or may not be completed. I believe that the Table refers to cost estimates which are "current" as of the time that the deleted work would have been done, as opposed to the originally estimated cost used to price the contract. Compare the estimated cost of the work not performed with the most current estimate of what the future new work will cost and/or the actual cost for that portion of the new work that is already performed, to the extent that actuals are determinable. The requirement is necessary to measure the effect of "any such change [causing] an increase or decrease in the estimated cost of, or the time required for, performance of any part of the work ...", per the Changes clause at 52.243-2. So one generally compares an estimate of what it would have cost to perform the original work with the estimated or actual cost to perform the work as changed to determine the adjustment. Actual costs tend to be preferrable basis for the changed work, unless there is evidence that they are really unreasonable. The price included in the contract for the original work, if not completely segregable, is not necessarily the basis for the estimate of the deleted work. As an aside, another note - once we have selected a contractor, we are stuck with each other. Just because the contractor doesnt have the latest, most efficient techniques or equipment, we cant necessarily say that its approach or productivity was "unreasonable". An example, Our estimator assumes the most efficient equipment would be used, which the contractor doesnt own or have on the job. It is more appropriate to recognize and use what is available for the basis of reasonableness.

I agree with both of the other gentlemen. But I would add that if it is possible to explore alternatives, take some proactive management action.If you have determined or believe that the contractor's actions were unreasonable or the higher costs are unreasonable (read FAR 31.103 and 31.2) or if you just want to better manage costs, what alternatives are there to get the estimated costs back within the contract budget? If there are viable alternatives available or if you want to know if there are any, it would behoove you to immediately discuss the matter with the contractor before it is too late to mitigate. At first glance, I wouldnt think that there is much, if any benefit on a cost reimbursable fixed fee contract for the prime contractor to bid shop, or otherwize squeeze the original sub for a lower price that results in the sub refusing to perform or sign the subcontract. Such actions are often considered unethical, but it wouldnt increase the prime's fee, nor will having to get a higherr priced replacement subcontractor increase its fee. So, without the benefit of the full story, it would seem that the prime had no motivation to do such a thing. It is not uncommon for subcontractors to back out or otherwise fail to come through. If there is no alternate that will keep the estimated costs within budget, I believe that Vern described your likely options.

Duplicate

Jm, actually the ACO, allowed the contractor to proceed at its own risk on the work, after sending the mod package up from Panama, because it exceeded his authority. The lawyer caught the funding problem during legal review. The PCO, the Chief of Construction and the District Engineer all were going to officially crucify the ACO for allowing work to proceed without a mod, especially one that had no proper funding. However, I reminded all of them that they never directed the contractor to stop, even a month after they knew about the funding and the situation. Since they were as "dirty" as the ACO, they dropped the action but directed the Contractor to stop the mod work. The customer went back and got the correct funds. Turns out this wasn't an isolated instance, so we had to find the other mods and go back and switch funds. The KO can't knowingly issue an incorrectly funded mod. It was our contract, so the KO was legally responsible to ensure that the correct appropriation is used. From that point on, the user had to provide original year funds or provide evidence from Department of the Army that there no more original year funds.

I don't know and honestly don't want to look it up, because it might be used to conveniently violate the appropriations rules. I found that the "local"customer either didn't know or didn't bother to pursue finding the expired funds at higher levels within the Army. I don't know who in your user's organization is responsible for funding modifications, but their finance and accounting office should know the information that Vern quoted as well as the answer to your question. And I don't accept the excuse that nobody in an F&A office knows the rules. That is a sign of incompetency in government.

From my own experience with "local agencies" (Army O&M) , I don't believe that they aren't available in your case. They likely haven't gone up the chain to the ultimate expired account authorities.

Vern, you're in great form, today. I agree with you