joel hoffman

I was in Riyadh, Saudi Arabia from 83-87, Kaiserslautern, Germany from 87-89 and in Dhahran, Saudi Arabia (actually all over the Arabian Penninsula) during the Gulf War in 90-91. We never restricted sources to locals, although we gave preference to or required a Saudi partner in the late 80's, near the end of the Saudi program. My memory fails me concerning the specifics, but it was near the end, when we were specifically trying to develop the Saudi construction industry. The Saudi program was a huge FMS case, and they paid for everything. Being their money, I'm sure that our Agreement included some provisions to aid the local industry. If your (our?) Counsel is citing FAR Part 5 as justification for less than full solicitation, it appears that there is no special program or exemption established in your Area of Operations. I don't think that Part 5 establishes any exemption in Part 6 for excluding sources.

When I was with the Army Corps of Engineers overseas (okay, it was 20 years ago), we had to advertise full and open, except where we had country to country agreements and where the host nation funded the FMS sales case. Then, I think we only had a preference for local firms, not reserved exclusively for locals. When I was in Europe, it was our money and there was no exclusion that I was aware of.

I dont know about Interior, but DOD and each service has rules and restrictions about Relocatable buildings and I believe that it it discussed in the Redbook. Unfortunately, I do not have access to the regulations. Army's regs are contained in AR 420-1. Relocatables are classified as personal property to the bet of my recollection.

I have seen contracts which stipulated that the performance bond was effective through the construction warranty period.

Frog - why pay three firms to perform testing and develop a concept design? At this point, you could evaluate the pricing, find out how much contingency they all put into their numbers, select one and go the route that I suggested or that the PM suggested. Dont waste the taxpayers money on paying for three investigations and three concept designs.

Vern, thanks. If that is the scenario, then I think that, for design-build, it is good to stick with an established system like GMP. And if time is a serious issue, perhaps not bother with the other two higher priced firms, unless there would be some significant benefit in allowing all three to reconsider their prices. Since the objective would be to save money if possible, the GMP with savings and with the owner's option to definitize to FFP within the GMP should work. Above, I forgot that the geo-tech work and concept design should already be included within the overall proposed price, since that would be necessary, anyway. The sub might want additional money to cover the administrative costs to definitize to a FFP

The guaranteed maximum price method basically works like this - The contractor guarantees to complete the scope of work within a maximum price ceiling. Payment is based upon actual, allowable costs plus a fixed fee, similar to a CPFF arrangement. If not definitized, there is usually a cost incentive arrangement whereby the parties share cost savings based upon a negotiated or owner established cost sharing ratio (e.g., 70/30 owner/contractor shares). If to be definitized to FFP, then the cost, possibly the fee arrangement, and possibly some incentive award fee arrangement are negotiated as the design progresses. This is different than an FPI arrangement, whereby there is a target cost, "fee sharing" ratios for overruns or underruns, but generally not "cost share" savings. I believe that the "successive targets" arrangement allows the parties to adjust the target or to establish a FFP. The GMP is a heck of a lot simpler arrangement and is familiar to design-builders.

Frog are you, as the Contractor, soliciting subcontract proposals to perform the work? If so, what is your contract and pricing arrangement with the government? Task order?, CPAF, FFP, etc.? I am assuming that the project manager wants you(?) to award a subcontract for the proposed amount plus cost to perform geotech studies and prepare a concept design, then negotiate a final price within the original price. I'm not sure about this, so I need Vern or someone else's input here. Can a prime contractor subcontract using what is referred to in commercial sector as a "guaranteed maximum price" (with an option to definitize to FFP if practicable)? Or is the prime limited to subcontracting using only FAR specifically authorized contract types? The closest comparable method in FAR to a GMP is the "fixed-price incentive, successive target" acquisition method. We are using this method on various complex medical and headquarter faciliities. Wre start with a target price, then attempt to definitize to FFP during contract design development and construction. It has similariteis to but not the same as GMP, which is a better system, in my opinion. The method that the government Project manager is referring to really should be done using FPI-ST if required to use a FAR method or better yet - as a GMP, with the intent to definitize to FFP, if the prime can subcontract using commercial pricing arrangement. As to whether or not the Government can require you to only negotiate with the lowest proposer, I will leave that to others to answer. It isn't practical to have three firms devrelop a concept design and do the geotech work, but they could all three revise their proposals to include those costs. However, I'm not sure that would help the other two firms or provide any benefit to the government, unless the revised proposal includes some type of ceiling cost.

I've been out a few days but I agree with the advice givers. A single award task order contract provides the vehicle for COMMUNICATION and streamlining T.O. issuance. For gosh sakes don't overcomplicate the damned process!!!!!!

You didn't provide enough detail to understand why or why not evaluation criteria would be necessary for a non-competitive negotiated acquisition. What will be submitted?

Yes, jtoli, you are correct. I quoted an article that I received in the mail, Saturday from my old Office of Counsel. The numbers in the article are transposed. I tried to find the subchapter, too and was unsuccessful. Thought it was my Internet skills. Thanks for the correction.

Vern, I'm with you on this. The FAR cost principles aren't "suggestions". They are "principles." However, I'd go a bit further. 31.201-6 says costs that are expressly unallowable shall be identified and excluded from any proposal applicable to a government contract. My assumption is that this is in regard to a negotiated proposal, when cost analysis is performed.

If you are with DoD, see DoD Manual 1400.25, subchapter 415. It states that it is DoD policy not to recognize private citizens or private entities that have a commercial or profit making relationship with the Department, unless the contribution is substantially beyond that specified or implied in the terms of the contract establishing the relationship, or the recognition is in the public interest.

Sorry - duplicate post.

Why not ask the proposer to provide a reference who can verify the person's experience or past performance? Whichever is the factor. You said "past performance", so let's assume that is the factor. I don't know if it would be considered discussions or a clarification. See 15.306 (a) and (bee). If references were required with the proposal, then it would probably have to be discussions, if they didn't provide a required reference to verify the experience or PP. Or, if they did but the reference isnt reachable, it could possibly be considered clarifications. Ask your lawyer, at any rate. If considered discussions, you could rate the person's experience or PP (whatever the factor is) as unverifiable and ask for some reference(s) during discussions. If clarification, ask for the info to verify during the evaluation.

Hey, Mike. I think I understand you to say that the government team has determined that either the manufacturing specs or the product doesn't meet the contract requirements but that the contractor is asserting that the test standards applied exceed the contract QA standards , industry standards or something like that. So, you must do something to avoid having the contractor manufacture non-complying canisters. Is that correct? I remember reading in "Administration of Government Contracts" that there are cases where higher testing that exceeded the standards in the contract was considered a constructive change. However, if the government wont accept the canisters until they pass the test requirements, it might be more prudent to tell the contractor - rather than a stop order - to take corrective action and then get the canister(s) retested??

B-147615 December 14, 1961 was an issue with a 2% tax as a business privilege tax on the vendor or supplier to the Government. The Household goods shipper had to pay the tax and passed it on to the government. The other decision B211093, May 10, 1983, was where the electric utility had to pay a sales or gross receipts tax and passed it on to the US. You are correct to the extent that when a tax falls on a government vendor, not the government as the consumer, then it can pass that obligation onto the federal government.

Okay - if this is a directed change to my contract to seek proposals for upcoming funding, I believe that I would demand that it be in writing and that the Government fund my overhead and admin expenses for seeking proposals prior to funding being in place, if that is applicable to your situation. That way, if they cancel the projects, you can likely be at least reimbursed your admin or B&P costs.

Yes, but please define the "risk" to the contractor under the above scenario? What is it at risk for? It would seem to me that a supplier or subcontractor could choose to participate or not under the conditions expressed in the contractor's RFP/RFQ, right?

dwgerald, I'm not referring to purchases by or for employee expenses or for government contractors. Government employees or contractors generally are not inherently exempt from state or local taxes, unless there is some type of exemption from the state or local taxing authority. I'm referring to and inquiring about possible state or local taxes on direct government purchases for a service or supply. By the way, what basis do you have for saying : "Most state and local goverments do not" (tax federal travelers or contract vehicles)...?

If the contractor explains the funding situation in it's requests for proposals and states that it will not be liable for any costs incurred prior to a funded order, what is the risk being assumed by the contractor - its solicitation costs?

22, do you have some examples of state "taxes" that the federal government must pay on direct purchases by the government? I'm just curious, thanks.

Don, there's not a whole lot you can do if the acquisition method is an IFB... Non-responsibility is not as easy as one may think or desire.

I think you answered your own question. If it is a Contractor requirement under the contract, then you should enforce the contract. If it isn't a contract requirement, then the government doesnt need the qualification.

OOPS. I did misread your scenario. I will answer but not tonight. I just got home from TDY and leave again first thing in the morning. I want to see my wife. I will need to read up on it. I'll be home Friday night and will look after that. There is a difference though. In the original scenario, the contractor did what it proposed to do. In the second situation, it didn't do what it proposed to do. However, I need to read Nash and Cibinic and the files I have collected.