joel hoffman

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.

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.

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.

I think that a face to face (if possible/practical) interview with promising applicants would be a more appropriate place to do something like what WifWaf proposes. For involved responses like the “test” here, I would inform the candidates when making the interview appointment, so they can be prepared think about and can prepare for the interview.

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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.

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.

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.

We will have to leap frog over those promotional posts. Unfortunately there was a response to that post after you posted here 🤪

@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.

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? @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.

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”.

Depends on what info you are interested in. Do you have access to Administration of Governments Contracts by Nash, et al.?

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.

I think it might be a matter of contract administration. Might be misbilling, might be a mistake in processing a progress payment by the contracting office. Unless the OP comes back we won’t know. The OP started this thread almost four weeks ago. This is the first day that I’ve seen this thread. If it posted earlier it wasn’t highlighted as unread. I received a couple dozen email notifications of new threads this morning, some dating back to last summer.

Good points. It appeared that there was a single fund source. the last time that the original poster check in while signed in was Jan 31st. They might have given up waiting for answer .

Just received an email notification of this “new topic” today; the topic was posted last month. You said this is a “bid” but later state that certain representations were made concerning who the employees work for and past performance by the prime “in the proposal” Has the contract been awarded or was it in proposal evaluation stage when you asked the questions. If the latter, the government should have questioned the discrepancies if they were aware of them prior to award. if this is a construction contract, it should include the contract clause Performance of Work by the Contractor. That clause requires the prime contractor to manage the work with its own employees and to perform at least the specified minimum percentage of the work. If this is a small business set-aside or a sole source contract, there should be a Limitation on Subcontracting clause that limits the amount of subcontracting. Those contracts also require the prime to control and manage the work. if A construction contract, the prime must identify each subcontractor and also must identify who the employees work for in the weekly payroll submissions. You should consult your legal counsel if you are with the Government agency. If you are a third party, you can advise the Agency of the misrepresentations. Specific answers would require more context to the situation and current status of the acquisition.

Just saw a notice of this new topic this morning in my Denali. In response, based upon the limited information in the original post: If the contract completion date has been extended due to delays to the critical path to completion due to a DSC, it would appear that some form of extended field office overhead would be allowable.

I still have new 19 email notification messages to look at but there are no unread posts or comments that should be indicated in bold on the Forum Home Page. Just read another email notification of a new topic post which is strictly an advertisement.

What is going on with the forum today? Suddenly a flood of emails came out with what appears to be new topics or even old topics that were never posted. in addition, I’m getting notices of new or recent comments to topics. However, they aren’t marked as “unread” responses when I go to the Forum Home Page.to look for unread threads or comments. Looks like Bob purposely did not post at least one of the topics - it was an advertisement or promotion for certain products. Totally inappropriate topic. Some of the topics are Overcome by Events. Old dates with then current questions on what to do. No use bothering now to research answers. Most were initially asked in the Sept- December timeframe when Bob was seriously ill or had passed away. However, they aren’t marked as unread in the topic listing even though I’ve never seen them before.

The question is too vague to answer. How did DFAS overpay and on wrong CLIN? Was it an error by the contracting agency? Have the payments exceeded the funds obligated on the contract? Further details are necessary if not exceeding the contract amount or funds obligated, this should be reconciled on the next invoice for ongoing work.

Yes, on a deductive or increase change (per the changes clause) , to be consistent, the equitable adjustment includes net change in costs, including G&A and profit allowance -

Aside from the question concerning issuing a CPARS rating on a cancelled purchase order, the contractor must have an opportunity to respond to a negative draft CPARS rating. Someone a level above the the KO who prepared the evaluation must review disagreements between the parties over the evaluation. A contractors rebuttal also becomes part of the file. 42.1503 Procedures. “d) Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. The contractor will receive a CPARS-system generated notification when an evaluation is ready for comment. Contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation. These evaluations may be used to support future award decisions, and should therefore be marked “Source Selection Information”. Evaluation of Federal Prison Industries (FPI) performance may be used to support a waiver request (see 8.604) when FPI is a mandatory source in accordance with subpart 8.6. The completed evaluation shall not be released to other than Government personnel and the contractor whose performance is being evaluated during the period the information may be used to provide source selection information. Disclosure of such information could cause harm both to the commercial interest of the Government and to the competitive position of the contractor being evaluated as well as impede the efficiency of Government operations. Evaluations used in determining award or incentive fee payments may also be used to satisfy the requirements of this subpart. A copy of the annual or final past performance evaluation shall be provided to the contractor as soon as it is finalized.” I personally don’t think it is appropriate to prepare a performance evaluation for a purchase order cancelled pursuant to FAR 13.302-4(b) . After cancellation no further action is required per that reference.

Without any more information and context to the situation, we can only speculate…

Yes, I agree with formerfed on this. Please provide the context to the situation. If the Government has arranged for a conference location, hotels often provide free or discounted meeting space and services based upon expected occupancy for attendance. The parties may have arranged for a block of rooms for attendees. Since the government is paying for the attendees travel, it would seem entirely reasonable to expect the attendees to stay at the location in such circumstances. Sorry if you won’t get points or other membership Bennie’s from another hotel chain.