joel hoffman

Matt, our RE's also farm out submittals when necessary, similar to the Air Force, It depends upon the level of technical expertise in the RE office. Most are ACO's. Some might work for an Area Engineer, who may be the ACO. We occasionally have an 1102 ACO in the field office, more likely on cost contracts. I'm curious. Why does NAVFAC incorporate the design into the contract? For instance, what happens if there is a design error or omission in the design-builder's design that has to be fixed? Does someone initiate an engineering change, change order (or whatever term NAVFAC uses for a change to the contract)? How does it get incorporated into the design or contract? If it costs more to fix, does the government pay? Time extensions, etc.? Is there any room for Contractor flexibility in the final design? Yes, I was an ACO.

Matt, our RE's also farm out submittals when necessary, similar to the Air Force, It depends upon the level of technical expertise in the RE office. I'm curious. Why does NAVFAC incorporate the design into the contract? For instance, what happens if there is a design error or omission in the design-builder's design that has to be fixed? Does someone initiate an engineering change, change order (or whatever term NAVFAC uses for a change to the contract)? How does it get incorporated into the design or contract? If it costs more to fix, does the government pay? Time extensions, etc.? Is there any room for Contractor flexibility in the final design?

Vern, that makes more sense to me.

Yes, I understand all that. The light bulb that turned on concerned a supposed great need or statutory requirement to tie down every little facet of travel as a fixed price, supposedly because FFP is a better deal for the government or something. Then, we might well pick the best firm, with little regard for the best overall price. Next we should negotiate travel details to maybe save a few bucks. Gee, is overall price important or not important? Or is only tying down the travel cost so important? Makes me chuckle at what seems to be ironic. Oh, but it is a "no-brainer", isn't it...

Aha, I see your point about picking one firm to negotiate final prices with! Edit: Let me think about that for awhile. Seems funny that we go to all these lengths to tie down all pricing to FFP for some unknown reason (we say "because it is required". But why is it required? Because congress is worried about costs?) , then we pick one firm to negotiate with. Could that indicate, hey pricing might not be so important, qualifications or something else might be more important than the miniscule details of pricing that we seem to be insistent about? Just seems contradictory to worry about tying down all pricing details if price isn't that important. If price were really so important that we have to even fix travel costs, why not discuss final price with more than one firm?

Vern, Part 15 doesn't apply to everything. I never said that it does. DFARS 208.405-70 applies to FSS orders, implementing Section 803 of the Defense Authorization Act for FY2002. Paragraph (3)(bee) says that each order exceeding $100,000 shall be placed on a competitive basis, unless the requirement is waived per the exceptions in FAR 8.405-6. DFARS says to make the notice of intent to purchase the service to as many schedule contractors as practicable. It says to reasonably ensure that offers will be received from at least three contractors that can fulfill the requirements. It also says that at least three offers should be received from contractors who can fulfill the requirement, unless the KO can document that, through reasonable efforts to find other firms, no other firms that could fulfill the requirement could be identified... I admitted that I'm no expert on FSS orders, but for orders exceeding $100,000 looks like DoD agencies must try to compete orders. How practical is it to negotiate unit prices for travel with multiple firms? For orders under $100k, I wonder how much travel would be involved, anyway. It might not be enough to fool with on a unit priced basis, considering that it might have to be modified later. Or sure, if you're dealing with one firm, go ahead and negotiate unit prices if you want to. Heck, it isn't that darned difficult to review a couple of travel invoices on a small order, anyway. My reference to DCAA was merely to explain that professional auditors don't even scour every piece of paper and review in detail every line in proposals or invoices. They use sampling techniques. If the so called experts don't go to that detail on the big buck acquisitions, does a voucher examiner have to on every voucher that includes travel? Besides, I sure as heck can speed read a hotel bill to see what was in it, if I had to.

I wasn't the one who recommended Mr. Drabkin. To the extent that the OFPP Administrator has any influence over anything, I think that there would be change in philosopy, that's all. If that is good, okay. If it is "rogue-like", I'm not sure that it would be good. I'm not going to go any farther here with any of those suggested thus far.

Based upon my impressions from several years ago, as well as a couple hours listening to him in the DAU class, Mr. Drabkin has a more liberal view of the FAR and perhaps Procurement Statutes than the OFPP did. The GSA has "streamlined" government contracting with the various government-wide Part 8, ID/IQ contracts, its for fee business enterprise centers (or whatever they are called), etc. I don't know if he was responsible for or had anything to do with the contracting debacles where centers were taking on all types of customers and issuing all types of orders beyond the scopes of their contracts, but they were certainly using some "out of the box" thinking... I'd say that his philosophy would be projected in any role that could affect Government-wide acquisition policy.

"You'd spend that much checking receipts". Give me a break! The DCAA doesn't even check every receipt for crying out loud. They use sampling techniques. I've yet to see one of our 1102's track every receipt. I'm not even sure that they check math in receipts.

I guess it is a matter of perspective. Does the government set the unit prices? Who is the "we" in "We set it at $500"? Since DOD can't normally just pick one FSS contractor to negotiate an order with (not counting sole source 8(a)), how do you make all these great detailed arrangements in a competitive ordering situation? By the way, somebody has to review and agree with quantities for all those great unit priced items in the invoices, too, unless "We" just skip that step in contract administration.

Boof, are you referring to Contractor 123's acquisition or one of yours?

Well, if Drabkin took over, you'd very likely see changes. Years ago, in my Con 3?? something DAU class in DC, the Deputy Counsel to the OFPP Administrator and Mr. Drabkin were guest lecturers. It was obvious to me that he didn't agree with some of the Administrator's policies at the time. From 1978 to 2001 Shay Assad worked for Raytheon. In 1998, Assad was Executive Vice President (Contracting), also serving as the Chief Operating Officer of Raytheon's Engineering and Construction business sector. He was the CEO at the time it was sold to the Washington Group in 1999. A simple Google search will lead you to much information about the aftermath of that deal...

Vern, I don't disagree with you. The Government should be able to estimate certain travel for individual projects. But, since (at least DOD) must compete orders, I doubt if there would be much, if any, joint planning or individual negotiations prior to the order.

Carl, I admit that I'm no expert on FSS contracts or task orders. I believe that this is a base FSS contract clause, which describes overall contract terms that have to be refined or framed within individual orders. It appears to say that order terms for travel under the contract might be established as either fixed price or some type of reimbursable arrangement. I think I indicated that in my post yesterday. When I write ID/IQ contracts, some clauses prescribe specific terms and conditions applicable to all task orders, while others frame or outline terms of various options that might be applicable to individual orders. Does this one do that? I don't think it is prescriptive. It merely indicates what is allowable under individual orders, which must describe the specific requirements.

The contracts are for "program/project management support type" services. From the business management side of the house, there may be practical problems with pricing travel as a lump sum item on such contracts. I'm assuming in some cases that the contract doesn't state the amount of travel or number of trips required. If the contract does state an estimated or assumed amount of travel, then we may have to micromanage the line item; if the number of trips isn't necessary, do we initiate a credit change? Obviously, if the number exceeds the estimate, we'd have to do something to increase funding, regardless of the type of contract pricing mechanism. Who determines how much travel is necessary? The natural inclination of a contractor, if the risk is now on the contractor to control costs, is to stay within the budget. If the Contractor decides whether or not a trip is necessary or how many can go and how long the employees can stay to support the client, the client will have little control and may not be satisfied with the level of on-site services provided. If it is a mutual decision, the Contractor may reluctant to send people any more than minimally necessary. If it is the Government's perogative to ask for on-site representation, can the Contractor argue that the trip isn't necessary or send the B team instead of the best (assuming they are paid more than the B Team)? How does the Government determine what is a reasonable number of trips to demand (request, require, etc.) and how would the Contractor respond? Unit-pricing of what can be determinable can help alleviate these practical problems. However, I would think that it would be much more practical for the Government and or the Government/Contractor team to manage the amount of travel within a budget, that can be easily adjusted to fit the actual needs of the program. The Government could request the Contractor's presence, the Contractor could suggest or request trips or the team could mutually determine what presence is necessary. As to the practical aspect of reimbursements, Government employees have traveled for years, being reimbursed on the JTR basis. If travel were based upon FFP, the Contractor still has to manage its budget and account for expenses, so the administrative costs aren't much lower, than submitting reimbursement invoices. I suppose the government voucher review process would be more complicated, but probably not that much. The reviewer can do sample full blown reviews and could used simpler reviews in between. When JTR or similar limits are imposed on travel costs under a reimbursable/no fee arrangement, there is a natural inclination for the Contractor to control costs. Yes, I am aware that the Contractor's overall performance may reflect how well it cooperated on sending the troops out to support the client.

After all of this, the problem remains how to price travel. To the extent that any of it can be determinable, you could establish unit prices. To the extent that it isn't determinable, I'd go along with Vern's original advice: "I?m lining up with our Marine. There is no ?answer? to this question. There is only what you can and will do as a practical matter. Why not (no pun intended) say that travel will be priced on a fixed-price basis through order-by-order agreement on the location and duration of anticipated travel, subject to adjustment? If more or less travel is needed, then mod the order. I did that for years under small R&D contracts, and it worked fine. You can also price travel on a fixed-unit-price-by-day basis, to include airfare. That takes some negotiating, but it can be done if you've got the skills. (Of course, creative fixed pricing and negotiation are lost skills in today's contracting.) You can negotiate a plus/minus unit price adjustment clause, too. Of course, information technology has made issuance of a mod a nightmare. There is entirely too much pricing of travel on a cost-reimbursement basis, but if I couldn?t it any other way, then I would make travel a cost-reimbursement/no fee line item. Period." Why? FFP is not appropriate for circumstances where price or scope isn't determinable and where attempting to establish a FFP for an indeterminable item would place undue risk on one or both parties. Indeed, if "time and material" contract type is allowed under 12.207 (bee), with great caution and subject to the restrictions therein, the FAR apparently provides the possibility of pricing indeterminant incidental items/ODC on a commercial contract, including travel using other than fixed pricing. The FSS clause discussed above (C-FSS-370 CONTRACTOR TASKS / SPECIAL REQUIREMENTS or something like it) is apparently in the Base ID/IQ FSS schedule contract. As I read it, this clause does not definitely restrict pricing of travel to fixed price, if it isn't feasible to do so. If there were no alternative to fixed pricing of travel, the clause would say so. If there were no alternative to 12.207(a), there would be no paragraph (bee), allowing Time and Materials contracting. Travel can be a component of Time and Materials. It seems that the lawyer is, in effect, either saying that you cant use the FSS Schedule contract or he/she is saying you must use FFP to contract for travel costs, which you indicated are an indeterminant service. That is my problem with what the lawyer says. He/she seems to be urging you to do something that could be contrary to good business practice or that is inappropriate for fixed price contracting. There has to be a way to price travel - if it is indeterminant - other than on a lump sum or unit priced basis and the FSS contract seems to provide for that exception in the C-FSS-370 clause. I wouldn't kill the lawyer, but I would ask them what solution they would recommend to price an indeterminant,incidental travel cost item.

"Joel says the lawyer is dumb, but doesn't say why. " I never said that "the lawyer is dumb". The lawyer may be brilliant However, the idea that you must contract a fixed amount for for travel, if the travel requirements or locations are indeterminate is dumb, in my opinion. I believe you need to be prudent and find a smart way to control travel costs, while relieving either party of unreasonable, unknown risks. The lawyer's argument appears, from the first post, to be that any cost reimbursement line item would make the contract type a cost reimbursable type contract, no matter how small the item is. "Our legal dept. has advised us that we cannot do this, referencing FAR 16.301-3b which states that the use of cost reimbursement contracts is prohibited for the acquisition of commerical items. My argument is that having one CLIN as reimbursable should not make the entire contract cost-reimbursable. Their response is that having one cost-reimbursable CLIN would cause the entire action to be a non-commercial contract because commercial contracts can only be FFP/FFP with EPA/T&M." If our contracting system is that rigid, we are in big trouble. Reminds me of the inability of the leadership of a certain county to adjust to changing situations in WWII, which helped defeat them. The same thinking persisted in the 1980's, while I worked and lived there. "That can't happen because the rule says this..." Talk about Lemmings (e.g., 80 car pileups on the (freeway), because something that "couldn't happen" if everyone following immediately behind each other at 140 kmph follows the rules, happened)! The unthinkable alternatives often weren't considered. The US, on the other hand, was usually able to change course when necessary...

If your counsel is telling you that you must contract for travel on a lump sum or some unit cost basis for indeterminate amount or places of travel, that is dumb! If you are an 1102, you are supposed to be the business expert, right?

Red, have you read FAR 16.505 (Bee)? There is a requirement for postaward debriefings when the task order exceeds $5 million. See, in particular: "(Bee) Orders under multiple award contracts— (1) Fair opportunity... (iii) Orders exceeding $5 million. For task or delivery orders in excess of $5 million, the requirement to provide all awardees a fair opportunity to be considered for each order shall include, at a minimum— (A) A notice of the task or delivery order that includes a clear statement of the agency’s requirements; (Bee) A reasonable response period; (Cee) Disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating proposals, and their relative importance; (D) Where award is made on a best value basis, a written statement documenting the basis for award and the relative importance of quality and price or cost factors; and (E) An opportunity for a postaward debriefing in accordance with paragraph (Bee)(4) of this section." "(Bee)(4) Postaward Notices and Debriefing of Awardees for Orders Exceeding $5 Million. The contracting officer shall notify unsuccessful awardees when the total price of a task or delivery order exceeds $5 million. (i) The procedures at 15.503(Bee)(1) shall be followed when providing postaward notification to unsuccessful awardees. (ii) The procedures at 15.506 shall be followed when providing postaward debriefing to unsuccessful awardees. (iii) A summary of the debriefing shall be included in the task or delivery order file." Note (Bee) refers to the letter B

Yep, thanks for the correction, Don. Sorry for not looking up the term...

Sue, are you actually identifying which MATOC this is to the contract holders in your RFP, which I assume is a letter? At any rate, I was taught to always identify the contract number in any correspondence to the applicable contractor(s). Inasmuch as there is no implied authority in government contracting, if an unauthorized person requests a proposal without the knowledge or constructive knowledge of the authorized KO, a firm expends funds in preparing and responding with a proposal, the firm would have no recourse if the action was improper or somehow canceled. At the very least, one would think that the government should be competent enough to know the contract number of the contract they are taking an official action under. Tell the PM to 1) provide you the contract name and number, 2) provide the name of the KO or ACO and 3) read the contract before requesting a proposal for a task or delivery order!

Normal wear and tear is expected even under a warranty. As long as the bulbs, as a group or trend, aren't burning out prematurely, that would be considered normal wear and tear or a maintenance responsibility. The clause 52.246-21, Warranty of Construction, doesn't include unconditional warranty that nothing will wear out within one year. Unless light bulbs are "defective" (the warranty is for defects in materials, workmanship or design furnished), then the government is responsible for normal maintenenance and replacement. I was taught in one of my quality assurance classes, almost 30 years ago, that light bulbs were required to be "new" at acceptance. Thus, lights used during construction were to be replaced for acceptance. That was long ago, though. I don't remember if our guide specs at the time specified this or if this was based upon deductive reasoning from the Material and Workmanship clause that required all new materials and equipment unless otherwise specified. That would usually be a very high cost. If contractors were required to take out and replace all bulbs used during construction, we would theoretically pay for those labor and thrown away material costs anyway, resulting in a lot of waste.

Vern, the problem is that most clerks don't have any authority to negotiate with you or me. In one of my Business Law courses, we learned that posted prices are negotiable, not set. However the employee must have authority to bargain, which they don't and most clerks cant override the price scanner to change the price. They must make up any difference between the till and the cash register tape. Smart ones will put out a "penny dish" to collect odd cents to help out those who are "2 cents short".

Yeah but unless you are at a gas station or a store with a penny jar, you cant buy lots of things without the last two cents to pay for it. The last two cents might mean they wont sell it to you. That is a sign that the clerk will have to make up the difference.