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joel hoffman

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Posts posted by joel hoffman

  1. Carl, I agree with you. 

    12 hours ago, C Culham said:

    The given scenerio states that the "most probable cost is flawless' based on a cost realism analysis so tell me what else analytically is there to evaluate?  Seriously!!!!

    Don already explained the parameters for both the cost and non-cost factor evaluations and comparisons in this scenario. There was no need for further thoughtful and professional in-depth analysis for this scenario. 

  2. 1 hour ago, C Culham said:

    All said I do not believe you can read LPTA or Trade Off in to the wording as the effort by its own wording is a FAR 12/13 procurement not FAR 15. 

    Carl, I never said that it is an LPTA procurement.

    I was responding to FrankJon’s statement that all quotes must be considered per 13.206-2 (a)(3).

    My initial reference to LPTA was to state that the requirement to consider all quotations or offers per FAR 13.106-2(a)(3) implicitly contradicts 13.106-2 (b) (1) which allows for IFB like low bid procedures or a lowest priced technically acceptable scenario.** 

    “As for “Consider[ing] all quotations or offers” per 13.106-2 (a) (3), how does one do that, if using IFB like low bid procedures - which are allowed by 13.106-2(b) (1)?”

    and 

    “How does one “consider all quotations or offers” in a lowest priced technically acceptable scenario - which is also allowable under subsection 13.106-2 (b) (1)?”

    13.106-2:  “(b) Evaluation procedures.

      (1) The contracting officer has broad discretion in fashioning suitable evaluation procedures. The procedures prescribed in  parts  14 and  15 are not mandatory. At the contracting officer’s discretion, one or more, but not necessarily all, of the evaluation procedures in  part  14 or  15 may be used.”

    Carl, I didn’t say that it was a part 15 trade-off process either. I said it is “similar to a trade-off with price as the most important factor”

    On 3/11/2025 at 7:35 AM, joel hoffman said:

    …solicitation allows selection of other than the lowest priced technically acceptable proposal, similar to a trade-off with price as the most important factor. The solicitation suggests that the successful quote can be higher than the lowest,  reasonably priced quote

     

  3. ·

    Edited by joel hoffman

    8 hours ago, FrankJon said:

    I don’t see how you can say this, Joel. Considering price as the most important factor doesn’t mean you can arbitrarily decide not to consider prices beyond the lowest two.

    Imagine if the third-highest price were only marginally higher than the second - say a fraction of a percentile - but the agency arbitrarily decided not to consider the technical attributes of the third-highest quote. Wouldn’t that be an unreasonable decision on its face?

    Maybe my initial assessment of this scheme as “fatally flawed” was hasty. The solicitation doesn’t state what the agency will do, only what it may do. But I do think they could get into trouble here if they’re not careful. 

    Frank Jon, yes actually the RFQ said “then "at least" 2 quotes of lowest price will be compared and an award made.” This indicates to me that price is of primary importance.

     That would allow consideration of other than only the two lowest priced quotes.

    However, we have discussed other shortcut methods in the forum where the field of proposals evaluated have been reduced for sake of expediency, particularly where price is most important. 

    On 3/11/2025 at 6:41 AM, joel hoffman said:

    As for “Consider[ing] all quotations or offers” per 13.106-2 (a) (3), how does one do that, if using IFB like low bid procedures - which are allowed by 13.106-2(b) (1)?

    How does one “consider all quotations or offers” in a lowest priced technically acceptable scenario - which is also allowable under 13.106-2 (b) (1)?

    You could probably “consider” them too high, if they are beyond the two lowest priced, acceptable proposals.**

    I think that 13.106-2 (a) (3) is poorly worded.  “Consider” is undefined. This stated requirement appears to contradict 13.106-2 (b) (1) and (3).

    ** Modifying my earlier statement - if they are beyond the two or more, closely priced group of lowest priced quotes.

    EDIT ADD:  Non-competitive quoters aren’t discriminated against here. I don’t think that the RFQ mentioned a round of negotiations and selecting firms to negotiate with. It appears to state that a selection will be made from those lowest priced quotes. 

     

  4. 6 hours ago, formerfed said:

    Just because offerors are rated equal doesn’t necessarily mean selection boils down to lowest cost.  The tradeoff decision needs to examine the relative individual strengths and weaknesses/deficiencies of both A and B.

    if that were the case, yes you are correct. Per Don Mansfield that isn’t the case here. 

    Don said more than once here in his scenario that there is no distinction between the offerors on non-price factors/proposals

    Did you read this thread???

    On 3/13/2025 at 6:32 PM, Don Mansfield said:

    There's no distinction between the offerors on nonprice factors. The best value decision comes down to cost. 

    Joel Hoffman said: Missing information here might be past performance and experience track records of the competing firms for completing similar work and for controlling costs on CR contracts.

    Don Mansfield answered:

    On 3/14/2025 at 10:21 AM, Don Mansfield said:

    Assume no distinction between offerors

  5. On 3/11/2025 at 7:35 AM, joel hoffman said:

    I will say that while price is of major importance as a discriminator, the solicitation allows selection of other than the lowest priced technically acceptable proposal, similar to a trade-off with price as the most important factor.

     

    On 3/11/2025 at 8:48 AM, C Culham said:

    I would suggest you are reading this into the stated criteria and wonder how can you?  Or in other words the language of the RFQ is as FrankJon suggests "flawed".  

    This is how I read what I said into the stated criteria:

    On 3/10/2025 at 9:13 AM, FrankJon said:

    If there are more than two (2) quotes, the

    Government will conduct a comparative assessment of at least the two (2) lowest price quotes. The award will be made to the offeror’s whose quote is determined to have both a fair & reasonable price and to be the most advantageous to the Government.

    After determining which quotes are technically acceptable,  the Government compares (at least) the two lowest priced quotes. Thus, price is of major importance to the government.

    It follows then, that  award will be made to the offeror [assuming that the price is fair and reasonable] that is the most advantageous  to the government. Thus, the solicitation allows selection of other than the lowest priced technically acceptable quote.

    On 3/11/2025 at 7:35 AM, joel hoffman said:

    …while price is of major importance as a discriminator,

    the solicitation allows selection of other than the lowest priced technically acceptable proposal, [I meant quote] similar to a trade-off with price as the most important factor. The solicitation suggests that the successful quote can be higher than the lowest,  reasonably priced quote, if it is “most advantageous to the government”, (whatever that means ?).

     

    On 3/10/2025 at 9:13 AM, FrankJon said:

    ii)Other Factors: Contractor’s quoted supplies or services shall, at a minimum, meet the salient

    characteristics, specifications, deliverables, or performance requirements outlined in the solicitation

    Award will only be made to a technically acceptable quote.

    Since there is a comparative analysis of the two lowest priced, technically acceptable  quotes and doesnt have to be the lowest, reasonably priced quote, it works similarly to a trade-off with price as the most important factor. 

  6.  

    38 minutes ago, Don Mansfield said:

    That's the question (in other words).

    Assume no distinction between offerors.

    Ignore fees in this problem. 

    Ok, thanks. I don’t think the KO can justify any value in paying more when the non-price considerations are essentially equal and the most probable cost varies by $5 million and even the proposed cost estimates vary by $3 million.

    Unless there is some provision in the solicitation for some type of price preference.  In that event, I’d be willing to call Elon Musk. We can’t afford to maintain the Status Quo deficit.

  7. ·

    Edited by joel hoffman

    My best advice to you is to provide the re-design ASAP if you haven’t already.

    if there are delay cost impacts due to alleged lack of funds, I don’t think that the government can hold you liable for that but I’m not a lawyer. The contractual remedies are available to the government through the terms and conditions in both contracts.

    Obviously, I don’t know all the facts, the scope or magnitude of cost of the construction fix, what government entity you are contracted with  or what appropriated funds are, etc.

    if this is DOD, I find it difficult to understand that no funding is available.

    You may or may not have professional liability insurance for damages.   But the government is overstepping its authority if it wants you to pay the contractor directly outside of either contract. In fact, that action might be considered improper augmentation- not sure.

    [Edit: It also depends upon the nature of the corrections and costs to make the HVAC system work. If any of those aspects and costs to correct the HVAC system should  have been in the initial design, and would have been reflected in a corresponding higher initial contract cost, the government would have paid for that anyway (less impact/delay/tear-out costs of course) - those usually aren’t considered liable damages. That was always a USACE* consideration in whether there was A-E liability involved or at least the degree of liability. End of Edit]

    When I recovered liquidated damages or A-E liability damages, they were deposited in the US Treasury - except in Saudi Arabia where the Saudis funded the program. When we recovered damages on contracts there, the Treasury deposited it in the Saudi Engineer Assistance Program Agreement accounts for use on the Saudi Program, including our USACE employee salaries and support costs.

    You are welcome to PM me in confidence. I don’t have a horse in this race. Be glad to discuss it privately with you.
     

    *USACE: US Army Corps of Engineers

  8. If there is no distinction in the non-price factors and we are to assume that the contracting officer's determination of the most probable cost is flawless, what basis would the KO have to award a potentially higher cost contract?

    Missing information here might be past performance and experience track records of the competing firms for completing similar work and for controlling costs on CR contracts,  what type of CR contract and details concerning the proposed fees. Are the “proposed costs” and “most probable costs” inclusive of fees? 

  9. 11 hours ago, Boomer635 said:

    the Construction contractor and AE are not sure what bearing this will have on future warranty issues or other issues that may arise for this work being completed outside the contract. 

     

    I don’t remember reading this earlier but I agree that this directed approach could very well muddy both the design contract responsibilities and the construction contract warranty.

    But the bottom line is that neither contract with the government has any provision that would allow the government to unilaterally direct this solution to the two different contractors. This approach is outside the scope and terms and conditions of either contract.

    i will add that the A-E may want to have real time visibility of the negotiated contractor construction costs for the design solution, if it will be found to be liable for those costs due to negligent design services.

     

     

     

  10. For those readers not familiar with Design-Build contracting, the governments awards a single construction contract for both design and construction of a facility or faculties or System(s). It is not an A-E contract and the prime contractor, whether an A-E firm or construction contractor is the single point responsible party to the contract.m for design and construction.

    The Government is responsible for adequacy and quality of any design criteria furnished under the DB  contract and generally responsible for any partially developed designs furnished to proposers or the awarded DB contractor (with some exceptions).

    The life cycle Design-Build Construction class that I used to teach was a 38 hour course of instruction. So I’m just touching on some bssic concepts here.

    I was also a design engineer for about seven or eight years early in my career. I am a retired Professional Engineer, registered in two states.

  11. ·

    Edited by joel hoffman

    I was the chief of a USACE contract administration section for seven years that also included determination of A-E contract liability for design errors or omissions. I had an employee whose full-time duties included  managing and determining if there was damage liability for design errors and omissions. We never made the two parties “work it out “ for collection of damages.

    Edit: added. I was also one of the design-build approach experts for the USACE and for Districts and Divisions that I worked with. One of the advantages of the The D-B approach is the single point of responsibility for design and construction errors and omissions, when not the government’s responsibility. 

  12. ·

    Edited by joel hoffman
    Elaborated further

    2 hours ago, Boomer635 said:

     We own the problem, but this corrective action direction does not appear normal for Government contracting.  Is it?   I welcome your advice.  

    No, it isn’t normal in my experience for government construction or A-E Contracts in DBB acquisition approach.

    Based on the limited information regarding the actual problem, I wouldn’t know where there is A-E liability for impact cost  damages (here in the construction contract)  to the government for A-E negligence in the performance of any services. The government must first determine this question. Have they done this and do you agree?

    There is no question here that you must correct the design at no additional cost to the government. See the below FAR coverage and A-E contract clause. ** However, whether you are liable for the cost of the change, also including such impacts as tear out and replace/delays to the contractor, etc. depends upon whether or not whether there is negligence in the design beyond the normal standards of care of design.

    ** 36.609-2 Redesign responsibility for design errors or deficiencies. This is the internal policy guidance.

    ** 52.236-23 Responsibility of the Architect-Engineer Contractor. (A-E contract)

    Even if you have been determined to be responsible for the cost of the change/impact damages, as stated in above posts, there is no privity of contract between the construction contractor and the A-E firm nor anything in either contract that would require either one of you to work the issue out directly including payment to the contractor between you two entities.

    The Government is responsible to the construction contractor for the adequacy of the design. You are reaponible to the government for the adequacy of the design and might be responsible for “damages” due to negligence in performance of your contract.

    Many times, there are no  liable “damages” when the cost of the change wouldn’t exceed the cost to build the project had the design initially included the correct feature.

     

     

  13. I will say that while price is of major importance as a discriminator, the solicitation allows selection of other than the lowest priced technically acceptable proposal, similar to a trade-off with price as the most important factor. The solicitation suggests that the successful quote can be higher than the lowest,  reasonably priced quote, if it is “most advantageous to the government”, (whatever that means ?). Perhaps the rest of the solicitation requirements, which I didn’t read, would describe some quality differences between the products. The past performance evaluation standards don’t seem to be comparative between competitors.

  14. ·

    Edited by joel hoffman
    Addressed jjj’s concern.

    As for “Consider[ing] all quotations or offers” per 13.106-2 (a) (3), how does one do that, if using IFB like low bid procedures - which are allowed by 13.106-2(b) (1)?

    How does one “consider all quotations or offers” in a lowest priced technically acceptable scenario - which is also allowable under 13.106-2 (b) (1)?

    You could probably “consider” them too high, if they are beyond the two lowest priced, acceptable proposals.

    I think that 13.106-2 (a) (3) is poorly worded.  “Consider” is undefined. This stated requirement appears to contradict 13.106-2 (b) (1) and (3).

    The stated intent is to provide the KO “broad discretion in fashioning  suitable evaluation procedures” (b) (1) and “[ensuring] that quotations or offers can be evaluated in an efficient and minimally burdensome fashion” (b) (3).

    The evaluation procedures stated here aren’t unfair to competing firms any more than a low bid, a lowest priced technically acceptable quotes or similar procedures would be.

    ”The rest of the competitive field” isn’t competitive, price-wise with the lowest competitively priced, acceptable quotes.

    Im not commenting here on the stated concerns of @FrankJon and @jjj, which may be well founded. I didn’t download and read the whole solicitation.

    Edit: The solicitation and evaluation procedures might have to be amended to comply with the Berry Amendment to require or give preference to US made clothing.

  15. 20 hours ago, FrankJon said:

    See RFQ no. M0026325Q0014 for t-shirts. Lots of obvious problems such as:

    • RFQ is 53 pages long.
    • Requires item identification for thousands of tees.
    • SB set-aside but no reference to nonmanufacturer rule. 
    • Refers to services throughout. 
    • Lots of noncommercial clauses. 
    • States both that it’s an RFQ and that a contract will result from government acceptance.

    The evaluation methodology also appears to me to be fatally flawed, but I wanted to get the view of others here on this. 

    Stating that you’re going to conduct a comparative assessment but that you may not consider any quote beyond the 2 lowest priced quotes seems unfair to the rest of the competitive field and like a sure-fire loser if challenged. Is *arranging* prices from lowest to highest the same as *considering* prices? I don’t think so.  
    I have vague recollection of seeing a GAO decision on a similar scheme but can’t recall the details. 

    I don’t see a big problem with the stated evaluation criteria. Stressing price and compliance with the quality and qualification requirements. No need to evaluate higher priced quotes unless the two lowest priced quotes don’t meet the other non-priced requirements. 

  16. ·

    Edited by joel hoffman
    Bold emphasis added and Added last two paragraphs **

    @Sounding Alarm on Executive Orders, do you think that most contracts are not available to the public to review? 

    This came from a Google search for:  “Are US government contracts public records?

    “Federal contracts are considered public records, with a few exceptions.

    “Given how the resources used to fund the government contracts are from the taxpayers, the public has the right to know the details of the contract. But, not all kinds of information can be disclosed to the public, especially if it can adversely affect one party involved in the contract. According to Exemption 4 of the FOIA, the United States government will keep the commercial and financial details of the government contractor strictly confidential.

    See also: https://www.govconwire.com/articles/government-contracts-10-questions-you-need-to-know/#2_Are_government_contracts_public_record

    “2. Are government contracts public record?

    Yes! According to the rules and regulations set by the Freedom of Information Act (FOIA), the public has the right to request federal contracting records since the resources used for funding came from the citizen’s tax.

    But, just because federal solicitation are public records, does it mean that all the contractors’ sensitive information is given to the public too? No. Based on FOIA Exemption No. 4, releasing information to the public comes with a few exceptions, whereas the trade secrets, commercial and financial details of contractors or businesses will not be disclosed to the public.”

    And:

    https://www.quora.com/Are-federal-contracts-public-information

    “Much information about unclassified federal contracts is public. For example, you can do searches by company name, DUNS number, CAGE code, or another keyword on fpds.gov. Type in “Lockheed Martin” and you will see they have had more than 900,000 contract actions since these records have been started.

    The data you can get will be summary information such as Contract ID, Modification Number, Transaction Number, Award/IDV Type, Action Obligation ($), Date Signed, Contracting Agency, NAICS, etc. In most cases, if you want the entire contract, you would have to go through a Freedom of Information Act (FOIA) request and if there is anything sensitive or company proprietary in the contract, it will be redacted before provided.

    Some classified contracts will be unavailable to the public. I know of contracts so sensitive that even the invoices were considered classified and had to be packaged and shipped using the same procedures as for the handling of a classified, technical report. You won’t get public information about those kinds of contracts.”

    ——————-
    The original poster, @Sounding Alarm on Executive Orders last visited the site on the past Thursday. This might be because the thread first appeared in the Forum either late Sunday or on Monday morning when I received an email, notifying me of the new topic posting.

    ———————

    **Although this information doesn’t specifically state that it isn’t available to Elon Musk and DOGE, I do not see any indication in the Exxecutive Order or reference in the original post that indicates that DOGE has access to “sensitive or proprietary company information”.

    ** i personally think that the records of public contract payments made to a company under the terms of a contract should be available to the public under FOIA and also available to the DOGE. 

  17. Although this post was originally dated last Thursday, it just showed up on my feed today, Monday.  

    With all due respect to @Sounding Alarm on Executive Orders: Do you think that most contracts are not available to the public to review? 
     

    On 2/27/2025 at 11:37 PM, Sounding Alarm on Executive Orders said:

    orders. Especially large businesses that will be completing fairly for government contracts—DOGE or Elon Musk may see your proprietary information. This is a major conflict of interest. Please share this information the public’s need to see this. 

    @Sounding Alarm on Executive Orders, where does the reference state that contractor proprietary business information is available for DOGE review? I didn’t read where it does. The FAR doesn’t make it available either. 

  18. 2 hours ago, Thouse010 said:

    I requested the contractor reduce their price for products being added to an IDIQ contract. I documented the "negotiation" in my mod memorandum.

    Management is telling me I need to request a FPR and do a post negotiation memorandum for mod documentation. 

    Is this actually required per FAR?

    What incentive do I have moving forward to attain better pricing on mods if I'm penalized with more work and PALT!?

     

    Forgive me but I hope you have replied to your agency about what you’ve recently done. I fear for your job, especially if you have “no incentive” to actually negotiate and attain better modification pricing, because it “requires more work”.

  19. 11 hours ago, here_2_help said:

    DFAS frequently makes payment mistakes. Wrong CLIN. Wrong Sub-CLIN. Wrong ACRN. It's not really a huge deal. 

    I think it is then up to the CO to correct DFAS's mistakes by pointing them out. Perhaps correct MOCAS? (Not sure about that.) Often, the contractor is asked to help reconcile invoices to payments.

    The Army Corps of Engineers implemented new  Financial Management Systems “CEFMS” software back in the mid to late 1990’s to manage the allocations, authorizations, reservations, obligations and payments/expenditures  for all of our funds sources and for every contract and purchase (credit card payments but not each credit card purchase, of course). 

    It was also integrated with the “Resident Management System” RMS software for contract administration after award, which also has a contractor module. 

    I don’t know how but CEFMS formats and sends all contract invoice payments to DFAS . I never heard of DFAS making invoice mistakes with this system in place for my former agency.

    Mistakes have been made but it is usually at the field input level (contractor and/or government). When discovered, they were usually reconciled in the next payment.