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joel hoffman

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Everything posted by joel hoffman

  1. I think the question was answered. The clause requires the contractor to repair and maintain the GFP. It’s a sole source contract. The price will be negotiated. The contractor will price this responsibility in its proposal. Nothing in the OP indicated that the contractor wants to know HOW to price the effort. if the gov’t has other plans for maintenance and repairs of some or all, then it should clarify this during the negotiation process and document it in the contract. I just noticed that the question concerns a follow-on contract. The contractor should already have been maintaining the GFP in its possession under the current contract. It should not be including additional costs in the follow-on contract price for currently required maintenance or repairs due to the current condition of the GFP in its possession, if that is part of the original question. The contractor should charge its costs of maintenance and repairs currently required during the current contract to the current contract, not to the follow-on contract . This assumes that the referenced GFP clause is in both the existing and the follow-on contract.
  2. Yes it does provide an answer as to WHO maintains the property- unless, as others have said, the government needs to maintain that responsibility. Of course the government will pay for maintenance one way or the other. FAR 52.245-1(b)(1) “(b) Property management. (1) The Contractor shall have a system of internal controls to manage (control, use, preserve, protect, repair, and maintain) Government property in its possession. The system shall be adequate to satisfy the requirements of this clause. In doing so, the Contractor shall initiate and maintain the processes, systems, procedures, records, and methodologies necessary for effective and efficient control of Government property. The Contractor shall disclose any significant changes to its property management system to the Property Administrator prior to implementation of the changes. The Contractor may employ customary commercial practices, voluntary consensus standards, or industry-leading practices and standards that provide effective and efficient Government property management that are necessary and appropriate for the performance of this contract (except where inconsistent with law or regulation). (2) The Contractor's responsibility extends from the initial acquisition and receipt of property, through stewardship, custody, and use until formally relieved of responsibility by authorized means, including delivery, consumption, expending, sale (as surplus property), or other disposition, or via a completed investigation, evaluation, and final determination for lost property. This requirement applies to all Government property under the Contractor's accountability, stewardship, possession or control, including its vendors or subcontractors(see paragraph (f)(1)(v) of this cluase). (3) The Contractor shall include the requirements of this clause in all subcontracts under which Government property is acquired or furnished for subcontract performance. (4) The Contractor shall establish and maintain procedures necessary to assess its property management system effectiveness and shall perform periodic internal reviews, surveillances, self assessments, or audits. Significant findings or results of such reviews and audits pertaining to Government property shall be made available to the Property Administrator.”
  3. Bob, would you consider invoking rule 17 here, tomorrow morning? It’s been four days since the two respondents asked for clarification and more context to the original post. The Original Poster logged in to visit this thread almost two days ago on Monday afternoon but hasn’t replied to any questions.
  4. I said “if”. More than once… Why is the original poster asking about a need for certified cost or pricing data? What would be the purpose of obtaining cost or pricing data if it was necessary? For this best value competition the prime should have and did already evaluate both non-price and price factors (“categories”). The declared “winner” had the “best scores” in all categories (schedules, past performance and price). The “program” wanted to also award a subcontract to the “non-winner” for a 25% share of purchases. The non-winner’s prices, schedule and past performance werent good enough to “win” the competition but the program wanted to give the firm 25% of the sales. Wouldn’t the program office want to get a better deal than was initially offered - if there were significant differences in non-price and/or price categories? It would be apparent to me that cost or pricing data would supposedly have been used for negotiating prices, if it had been required for that purpose. The prime wouldn’t need cost or pricing data to bargain with the firm or either firm for that matter. By the way, I didn’t mention or hint that the second firm had “performance deficiencies.”
  5. Since the original poster asked about the need for certified cost or pricing data, I suspect that they may have been thinking of negotiating or bargaining for better terms or performance or price for the alternate supplier. At least I hope so.
  6. In this case there is no stated change to the terms of the solicitation. The prime contractor can negotiate or bargain for better price and/or performance with one or both of the proposed subs if that is company practice. If there is adequate price competition or the equipment is determined to be a commercial product it would generally be exempt from the requirements to submit cost or pricing data and to certify it. Beyond that I don’t see any need here for CCOPD. If the government wants to increase its supplier base and if there is a wide variance in prices and/or differences in proposed quality of performance, it would unwise* to simply offer an award without bargaining for improved prices and/or performance *poor business practice - AKA stupid business decision.
  7. Competitively negotiated procurements with adequate price competition (or commercial products or services) - as discussed here- would generally qualify for an exemption from submission of certified cost or pricing data. I often conducted price discussions in competitive acquisitions. At the most I might occasionally ask for some “data other than certified cost or pricing data”.
  8. Thursday, 6 Jun 2024 at 02:13 PM, @KJKD posted: “FFP contract - major equipment contracted. can you take money left over and buy something someone who proposed messed up on (supposed to be qty 5), then move money around to make up for it?” ________________________________________ @JKJD, your initial post makes little sense to me. How can anyone answer your question without speculating about it or the scenario/context? Please relax, think about it and clearly explain the situation and then phrase your question. For example: What type of FFP contract is it? Commercial products? Supply contract? GSA Federal Supply Schedule/Multiple Award Schedule, etc.? Where is the money left over and from what action? Is there less than a quantity of five pieces of equipment? What is the mistake and who made it? Can you move money around (from where? To where?) to “make up” for what?? I am assuming that a contract has been awarded. Is that correct? Thanks
  9. Ah, good catch, Carl. I missed it and nobody asked. Even if the subcontract is for a commercial product or commercial service, my previous comment is applicable and the prime isn’t bound to simply accept the second “supplier’s” prices because they were based upon competition.
  10. The exemption from submission of cost or pricing data doesn’t mean that the prime doesn’t have ensure that the subcontract prices are fair and reasonable, especially if the second firm’s prices are significantly higher than “the winner’s” prices for the same effort or products. Of course differences in non-price (e.g., technical approach) could affect prices… The exemption is only applicable to certified cost or pricing data, not “data other than certified cost or pricing”.
  11. The initial post seemed to indicate to me that the program office wanted to make a split award and wanted to know why it couldn’t be done. And it appeared that the Original Post was referring to split awards at the prime contract level. We asked for more context. DawnS then revealed that the solicitation was at the subcontract level and that the solicitation mentioned the possibility of split awards. This was the first mention of subcontracts… The mention of certified cost or pricing data indicates that there would likely be negotiation involved with respect to the second vendor. Why would one ask for CCOPD to determine whether a competitively submitted price is fair, reasonable and acceptable? Why would one ask for CCOPD unless they intend to negotiate a proposal? Why would one ask for CCOPD to bargain/negotiate a competitively submitted price? The bottom line is that there is an exemption to otherwise applicable CCOPD if you are negotiating competitively submitted prices with one or more firms for awards to those firms.
  12. Sorry for my edits but please see my last edited reply…
  13. The competition exemption from CCOPD can certainly apply to multiple awardees. The second firm is still “successful” in obtaining an award, just “not as successful” as the first one However, if you (and/or the Gov’t. Program Office) aren’t satisfied with the second awardee’s prices, you could bargain with them for better pricing. Since you weren’t sure whether or not CCOPD was required, you obviously would have the right under your issued solicitation to negotiate with one or both vendors, correct?. And If you aren’t satisfied with the non-price portion of the second firm, could you also bargain for better performance under the terms of the subcontract solicitation? The CCOPD exemption under 15.403-1(b)(1) would still apply due to adequate competition.
  14. Well, this appears to be a completely different scenario than initially described. However, your solicitation mentioned the possibility of split awards. Prices were competitively obtained. I don’t see why there is a need for certified cost or pricing data from either firm. They would both be competitively obtained awards.
  15. I will echo Vern’s question. Some more context is necessary. Whether or not you can even make a split award or a partial award to one of the vendors without further interaction with both firms would seem to be dependent upon what the “competitive solicitation” described as the basis of award. That would seem to me to be applicable regardless of the type or size of the solicitation. For instance, if the solicitation says something like “Award will be be to the [firm[ [offeror] [vendor] which provides the best value…”, to make a split award or a partial award of the scope is a modification of the initial basis of the solicitation initially sent to the two firms. It would be a change to the ground rules of the competition If so, then, as a minimum, I’d think that you will need to amend the solicitation to allow and describe a split or even a partial award. It appears to me, based upon the limited information provided and your question, that what the program office is requesting is a modification to the scope and quantity of possible business that the initial solicitation described and/or was based upon. Maybe one or both firms would not be interested in a partial, shared award for a smaller scope/amount/nature of business than you initially solicited. Or maybe their prices would be different (higher?/lower?). [EDIT: Where does the original poster mention subcontractors in this thread]?
  16. In addition why is this posted under the Subcontracts and subcontract management discussion area?? It belongs under “contract award” or some other similar discussion area.
  17. What I don’t understand is, unless this was a competitive (8a), single award ID/IQ , it should have initially been negotiated for at least the Time and Material base year. And you are obviously negotiating an option year price. Why hasn’t anyone asked the procuring agency during the initial negotiation or now during the current negotiation how to apply the set “combined rate”? Was the rate initially negotiated? If the rate is “vague” I would (have) certainly discuss(ed) it with the agency during negotiations… I don’t think anyone here can answer your initial questions but the agency should be able to. Assuming this is a sole source negotiated contract with negotiated option year pricing, it could justifiably be set-up as T&M base year followed by FFP option years. We dont know what type of “engineering” effort or products are involved.
  18. The OP has not said that this was a MATOC or a competitive set-aside contract. Carl, 1. What is your concern about 13 CFR 124.404? 2. 13CFR 124.505(a)(4): “(a) What SBA may appeal. The Administrator of SBA may appeal the following matters to the head of the procuring agency: …(4) The terms and conditions of a proposed 8(a) contract, including the procuring activity's NAICS cod designation and estimate of the fair market price.” The contract is already awarded. We don’t know what the agency solicitation/RFP for the 8(a) IDIQ engineering contract stated the possible pricing methods could be. 3. 13 CFR 124.510(b)? The OP already said that the subcontractor is a similarly situated entity. The limitation on subcontracting is not applicable to a similarly situated subcontractor here, is it? 4. 13 CFR 124.514: I don’t necessarily see a problem with pricing options, post award, here. “…(2) If the concern is still a Participant and otherwise eligible for the requirement on a sole source basis, the procuring activity contracting officer may negotiate price and exercise the option provided the option, considered a new contracting action, meets all regulatory requirements, including the procuring activity's offering and SBA's acceptance of the requirement for the 8(a) BD program.”
  19. What is the wording of the 36% stipulation? Please quote it. My inclination is that it doesn’t apply to subcontracts but please quote the stipulation in the contract.,
  20. So, you may think that commercial entities don’t include incentives or other terms in contracts to encourage or incentivize on-time performance or delivery, when such is deemed critical? I will venture a guess that timely performance is more often then not a primary goal and objective in the commercial marketplace.
  21. For DOD A-E contracts or for construction contracts with contractor provided design (e.g., design-build contracts or standard construction contracts with a contractor designed building system(s)) , see DFARS 227-7107 “Architectural designs and data clauses for architect-engineer or construction contracts” paragraphs .(a), (b) and (c). This provides the prescription for contract clauses regarding non-exclusive (a) or exclusive (b) Government rights to the data pertaining to the design and the design-products. A clause pertaining to the government’s rights to shop drawings (including any design furnished) is prescribed in (c). The clauses are: 252-227-7022 Government Rights Unlimited 252-227-7023 Drawings and Other Data to Become Property of the Government 252-227-7033 Rights in Shop Drawings
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