joel hoffman

Since you aren’t on the SSEB, I don’t know what your involvement and input to the SS at this point are. You probably can’t answer Vern’s valid questions and probably ought not post them here. I personally wonder whether there were actually any ORAL discussions between the Government and all these “offerors” and did the firms that submitted proposals say they won’t or can’t meet the current solicitation requirements. If there were REAL discussions and the firms can’t or won’t meet the current requirements, then the source selection officials should decide whether revised requirements would be acceptable to the government and achievable by the current proposers. If yes, it might be advisable to revise and continue. If revisions to the current requirements would result in major changes to the solicitation, .it might be necessary to cancel and re-solicit. If not acceptable, they will have to decide if they need to continue with the current solicitation or pursue another course of action.

@MBown What’s your point? Tariffs and duties are commonly interchangeable terms.You can do a simple search to find that. The 52.229-3 clause discusses increased or after imposed excise taxes and duties as eligible for a price adjustment. Not every type of tax is eligible for price adjustments either. The GSAR clause says that the contract prices “include all applicable Federal, State, and local taxes” And “No adjustment will be made to cover taxes which may subsequently be imposed on this transaction or changes in the rates of currently applicable taxes.” Whether or not a tariff is a duty or a tax, the GSAR clause at 552-229-70 doesn’t provide for a price adjustment for changes in rates or after imposed taxes nor does it mention duties or tariffs. Edit: Some other mechanism in GSA schedule contracts may provide an adjustment for tax increases or imposed/increased duties such as tariffs. I don’t know. I was only addressing the aforementioned FAR and GSARS clauses.

“An agency shall evaluate competitive proposals and then assess “their relative qualities” solely on the factors and subfactors specified in the solicitation." Does assess “their relative qualities” mean “compare the quality between the different proposals” - solely based upon the specified factors and subfactors ? Oxford Dictionary: Relative as an adjective: …”considered in relation or in proportion to something else.” "the relative effectiveness of the various mechanisms is not known" —-—————————- Or does it mean “assess their [each proposal’s] relative qualities” under the specified factors and subfactors using some type of rating system [e.g., is it relatively weak, meets, exceeds, excels under the factor or subfactor quality requirements]? In other words what is the contextual meaning of “their” [singular or plural] and “relative” [compared to each other or compared to the evaluation criteria]?

Well, let’s see. A Tariff is a “duty”, not a tax. So, the GSAR clause only addresses “taxes” being inclusive in the contract prices. The GSAR clause is for contracts expected to exceed the micro purchase threshold but not the simplified acquisition threshold: “529.470 Domestic contract clauses.(a)Insert the clause at 552.229-70, Federal, State, and Local Taxes, in solicitations and contracts estimated to exceed the micro-purchase threshold, but not the simplified acquisition threshold.“ —-———————————————————— Does your contract allow and involve acquisition of non-domestic supplies or materials? FAR 52.249-8 Why not try discussing this with GSA?

PilieroMazza PLLCTrump Administration’s Proposed Tariffs: How Can Governme...While on the campaign trail, President-elect Trump spoke of implementing tariffs. How will government contractors be affected if the upcoming Trump administration enacts its proposed tariffs in 202...

Have you checked your GSA schedule contract? Is FAR clause 52.229-3 in your contract? I found this AI overview: “For federal contractors, the FAR clause related to tariffs is FAR 52.229-3 (Federal, State, and Local Taxes), which allows for equitable adjustments to contract prices when new or increased federal excise taxes or duties (like tariffs) are imposed after contract award, provided the contractor notifies the contracting officer promptly and the costs weren't already factored in.”

So a simple reading of the EO would require that the Attorney General or President must review the government’s preliminary position advanced on every protest, or contract claim or REA involving application of contract or case law?

Of course, what happens when Federal Court case law contradicts an Executive Branch interpretation of the law? That will have to be adjudicated between the President and/or Attorney General and the Judiciary, won’t it?

State laws are heavily influenced by industry lobbyists and associations. I know from experience, having being a registered PE in two states.

By the way, there is much civil, UCC and common law litigation concerning disputes on non-federal construction and A-E contracting. There is much variation, depending upon the particular state laws and jurisdictions as well as jurisdictional precedent decisions. Appeals of decisions are common. I used to get monthly summaries and still am subscribed to one monthly source. I still have a shelf full of yearly updates to such case law. Haven’t read them in 18 years but kept them because I’m too lazy to clean out my bookcase. 😆

Remember that D-B is statutory. The original 1920’s D-B threshold was higher than the current statutory threshold, which was understandably lowered during the 1930’s Depression era. Trump won’t fight the labor unions there, even though the ridiculously low, unchanged Depression era threshold is of no benefit to union labor. Applying D-B requirements to jobs that small is administratively wasteful (time spent and $) for both industry and gov’t. Edit add: The changes clause allows the government to make unilateral, in-scope written or (case law - constructive) changes and establishes the basis for an equitable adjustment for increases or decreases (per case law) in the contractors cost and time extensions, etc. The part 12, commercial contract clause , allowing only bilateral agreement before making a change is unworkable for construction contracting - often resulting in delays, disruption and/or rework and other time schedule and cost impacts. $$$$ and T—-i—-m—-e——.

Ah, I hope you don’t mind me mentioning “Don Acquisition”. I figured it was a clever, double entendre for “Department of the Navy Acquisition”. 😁

Huh? Im not referring to any of the socio-economic aspects of the FAR here. I’m talking about the A-E and construction contract-specific clauses and coverage, that are comparable to other non-FAR A-E and construction contracting models. They have been used a long before the FAR, going at least back to the beginning of the seventies in DoD contracting for construction and A-E contracting. I’m referring to federal A-E construction contracts being all over the place without standardized formats and consistency within those specific areas. There are billions of dollars of DoD A-E/construction contracts alone awarded each year across the Services. Obviously, there are various standardized formats and conditions for each State and local government contracting organizations. And when I was in private practice we used standard formats.

If they gut the FAR 15 rewrite language concerning discussions, it probably wouldn’t matter much. From my perspective , many contracting officers never learned the differences between the pre-rewrite language and how to bargain for better performance anyway. Minimal negotiating-as though it were like having to get your teeth pulled. . Had several KO’s in different Districts argue with me, stating that if the proposals meet the minimum requirements, they couldn’t negotiate in an effort to improve them. That’s how we got some design-build ugly buildings that were objectionable to the installations, for example. The previous FAR didnt really emphasize discussing weaknesses, from my memory.

Is the purpose limited to complying with statutes and case law? I don’t think so. Every construction or A/E contract, whether commercial, private, state, local or Federal government has terms and conditions defining the roles and responsibilities and assignment of risk between the parties. State, local, Federal and the various model construction or A-E specific contract clauses, terms and conditions are standardized for consistency and to avoid re-inventing the wheel. Industry would go crazy if Federal contract terms and conditions were all over the place. Case law didnt create these terms and conditions and I doubt that they are statutory.

And, for good or bad, i chose not to be anonymous on this Forum. Some others have come over from the dark side over the years. (Right, Don? 😃)

I think there ought to be enough pride to assume some accountability for your work products. For as long as I was involved in design and construction both outside and inside the Government since 1971, every drawing included in solicitations and contracts have had a title box including the names of the designer(s) and the reviewing authority on them. As a licensed Professional Engineer, I also stamped every drawing and spec title/cover sheet that I was responsible for or personally prepared with my P.E. Stamp and license number. I think that it is a Croc to remain anonymous for your work products. Take ownership…

Sorry, I’m out of date Vern. Im used to having RFP solicitations with a cover page describing the project title and location as the first page. So used to industry complaining about page count for solicitations. Whatever works, fine.

In order to avoid adding an extra page, I’d include it on a cover page with the title and Solicitation number. But yes

Without standardized design and construction contracting approaches, the do it your own way approach would, in my opinion, produce chaos and confusion for both industry and government agencies. We conducted nationwide Town Hall meetings with the design and construction community in the late 1990’s as we developed the $50 billion MILCON/BRAC/Grow the Army Transformation Program acquisition approach. In those meetings and feedback, the industry made it clear that they wanted uniform design criteria, contract formats, source selection approaches and after award contract management procedures. The Army was standardizing the organizational (Brigade Combat Teams) functional and technical design criteria for 40 plus standard facilities types that would be replicated across the Army in the hundreds and some in the thousands. Industry said they couldn’t afford to and wouldn’t compete in multiple, individual Districts and Installations for the same types of standard facilities if there would be individual installation design standards, individual Corps District RFP/competition standards and individual District project after-award execution/contract admin procedures. They strongly advocated standardization and streamlining all these facet approaches across the Army. Inasmuch as the Army’s annual construction program grew to as much as six times the normal MILCON volume for five to six years, its goals were to drastically shorten the acquisition, design and construction timelines, to reduce initial costs (award 100% of the annual programmed projects, get awards of 100% of project scope within 100% of the programmed budget) and reduce life cycle costs (operation and maintenance) for the many facility types, most of which had commercial counterparts. That and the industry input were big lessons learned to save money, foster industry interest and participation and drastically streamline and shorten the time to obtain the new facilities.

Most of the standard A-E and construction specific contract clauses are long-standing, standardized assignments of risk and responsibilities between the parties. Not sure why they would be candidates for streamlining contracting or otherwise controversial. There are varieties of commercial construction contract formats and terms and conditions, generally written in the interest of the proponent organizations that formulate and issue them. Similarly, the professional architecture and engineering organizations promote their own versions of those type contracts.

Was the $4000 proposal for the initial contract? When was the contract awarded?

@Sue Kranes If you don’t know anything about design-build, the last thing you need to do would be to look at a sample design-build construction contract and then cut and paste The DBIA (Design-Build Institute of America) should be willing and able to provide you advice on how to proceed with a D-B project. They can suggest some names of design-build professional advisors to help you develop design-criteria and develop a format based upon the functional and technical design criteria for the project and your goals and objectives for quality, cost, time, etc. if you want me to send you the contact information for a design-build expert who was formerly the CEO of the DBIA, I can do that. I can call him and see if he is still active in the business or can suggest some names of others. I have known him for over twenty five years. I say this as a retired DBIA Designated Design-Build Professional Practitioner and a US Army Corps of Engineers D-B proponent/practitioner for 25 years or so. My first DB project was actually an Air Force family housing project as a Second Lieutenant in the Air Force back in 1971 at Castle AFB, CA. You don’t need to only consult with a “smart, experienced attorney”. You also need to consult with a smart, experienced design-build expert advisor. i freely admit that I don’t know anything about Other Transactional Authorities or what you want to use a Design-Build contract for.

What “business judgement”…?

Hey now. I didn’t call you a tree hugging Birkenstock wearer And drive a Subaru just because you are an Oregonian. 🤪