joel hoffman

I’m guessing that NOVA_CO is using the software writing system for this type of small acquisition with a given that the prime will be a small business concern for the first time?? Maybe I’m way off base? Edit: Shoot, maybe Nova is just trying to assemble the clauses for a small vusiness acquisition .

Bob, I’m not disagreeing with you, although I added an additional purpose of a small business subcontracting plan. I’m asking the original poster (who I think is writing the solicitation or acquisition) how the specific requirement for a “subcontracting plan” is described in the output of the contract writing system. Everyone seems to agree that a small business subcontracting plan isn’t required of a small business concern- both by law and implementing Regulations. I didn’t research the “DD 254” topic too deeply and am not familiar with what PIEE contracting software system says about it. NOVA_CO says that the system is “asking questions in such a way that a subcontracting plan clause is coming out…” Although NOVA did mention “clause”, the phrase “small business” wasn’t mentioned. I wondered if some other subcontracting plan, which actually identifies proposed subcontractors on a classified project, as distinguished from a small business subcontracting plan, is “coming out” (the output of the program) as a requirement. If it is referring to a small business subcontracting plan and that clause requirement, can Nova_CO edit it out or is the tail wagging the dog and it can’t be edited. I’m assuming from the OP that NOVA_CO has punched in a data element identifying the contract as reserved or intended for a small business prime. A small business subcontracting plan generally isn’t limited to specific, known proposed subcontractors at the time of award. If the government wants to know who the actual subs are going to be for security purposes, a small business subcontracting plan wouldn’t necessarily address thst.

Carl, both primes are apparently unwilling to engage. The sub has the GFP. The governments owns the GFP. I’d ask the government if they want it back. If yes, I’d return it. If no, the government should say so. If the government says to deal with the prime (it already has) , then the next step is to do the same thing with the prime. The sub just wants to get rid of it. If it is documented that nobody will take it , the sub could do what a marine air conditioning company (Marvair) did with their spare parts inventory after Dometic acquired them a few years ago. The company loaded every spare A/C part into a semi-trailer and dumped it off on a Dometic loading dock one weekend when nobody was there. No parts lists or other documentation… I know that from first hand conversation with the Dometic Parts manager when I needed a new control board for my still under warranty boat A/C unit. That would be a bit drastic. But I can understand the OP’s frustration with the other parties.

Neil, I think that the OP is a CO or other government employee.

The purpose of a “small business subcontracting plan” is to maximize subcontracting opportunities for various small businesses and “to get money into the pockets of small businesses.” See 19.702 (a) (1) for one designation of the “subcontracting plan” as the “small business subcontracting plan.” “a) (1) Except as stated in paragraph (b) of this section, section 8(d) of the Small Business Act (15 U.S.C. 637(d)) imposes the following requirements regarding subcontracting with small businesses and small business subcontracting plans.” It is correct that small business subcontracting plans are not required of small business concerns per paragraph (b) (1). Due to the nature of the contract (DD 254 is applicable), I'm asking the OP what type of subcontracting plan is being required. Does it specifically refer to the contract clause 52.219-9 “Small business subcontracting plan”? The OP hasn’t logged in to the Forum since the original post. In addition, it’s not clear to me whether the OP works for the government or a contractor. It appeared to me that he/she is a CO.

I never said there was privity of contract and offered a follow up course of action if that is the governments response. The government apparently already dealt directly with the OP’ company though. Maybe abandonment won’t work, without Prime concurrence too.

Does the DD 254 specifically state “small business subcontracting plan” and refer to the clause or does it state “subcontracting plan”. I’m no expert on it but it would seem to me that the government is gonna want to know who the planned subcontractors are for classified and security purposes. That may or may not be the same as a “small business subcontracting plan” if the prime is a small business.

I should have reviewed the entire clause. I like formerfed’s suggestion to suggest the option of government abandonment of the property in accordance with paragraph (k) of the clause in the contract. And request (require ) a reply or written confirmation within a reasonable time after receipt of the certified letter (30-45 days?).

If DD-254s are required for security and classified information purposes will it be necessary for the a proposer and/or contractor to identify all subs in some kind of intended plan for subcontracting other than the one in 52.219-9? You didn’t say much about the intended contract.

I would write the government KO of the last contract that you were officially assigned the GFP. Advise them that you intend to return the equipment and ask them where to bring/send it. Ask them, in the alternative, what should you do with it. Advise them that you aren’t going to continue to store it. If they say it is a matter between you and the applicable prime (which one?), send a copy of all the correspondence to the prime, copy furnish the government official, tell the prime the same thing and ask the prime the same thing. But insist on a written response from whomever you correspond with. Note that any proceeds from a sale sent to the government would be deposited in the Treasury. Based upon my own experiences, don’t necessarily count on much government employee enthusiasm in looking out for the taxpayers first. After much insistence with the airline company on my part and persistence, American Airlines wrote me a $4200 check for crushing my government laptop in an airport carryon luggage freight elevator malfunction. The baggage handlers over stacked the carryon luggage cart. My computer and several others fell off and were crushed in the elevator door frame. I endorsed the check payable to the Treasury. Surprised the crap out of our finance and accounting office. They acted like they didn’t know what to do with it. Avoided a “report of survey”, which nobody was interested in doing. (I returned the crushed computer to our IT office and insisted on documentation that i was no longer responsible for it. There were other contract experiences where there wasn’t too much interest by others in pursuing (liquidated or other monetary) damages if the funds weren’t going to be directly available to the agencies for other spending purposes. I ignored that indifference. Be persistent that you aren’t going to keep storing it and demand disposition instructions.

ghostie, here is a Table of Contents from the fourth edition of “Administration of Government Contracts” . There is also a detailed index by subject in the back of the book. “Table Of Contents Contract Administration and Personnel Contract Interpretation Risk Allocation Changes Differing Site Conditions Delays Government Property Pricing of Adjustments Inspection, Acceptance and Warranties Default Termination, Damages and Liquidated Damages Termination for Convenience Payment and Discharge Contract Disputes” Of course, case law and new topics continue to evolve. However, the Book is outstanding in defining the detailed legal principles and background of each topic. I had the first edition in ~1981. Of course, there was no Internet at that time. I still have the third and fourth editions. If I was still working, I’d have the fifth. It’s expensive as a personal purchase. Hopefully your office can purchase a copy! Used copies are available on line though. It’s nice not to have to buy them at college book stores anymore.🤠

I recommend at least two books, which you can purchase new or used on line: “Formation of Government Contracts”, which includes discussion of award controversies/protests. You can do a Google Search and find out where to purchase new or used versions. There are five editions with various authors, the late Prof. John Cibinic and Retired Professor Ralph Nash are two of the primary authors of the various editions. It was originally part of the George Washington University Law School, Public Contracts Program textbooks. Table Of Contents Chapter 1 – Basic Principles of Federal Procurement Chapter 2 – Contract Formation Principles Chapter 3 – Acquisition Planning Chapter 4 – Contractor Qualification Chapter 5 – Sealed Bidding Chapter 6 –Basic Negotiation Procedures Chapter 7 – Indefinite Delivery/Indefinite Quantity Contracts Chapter 8 – Simplified Acquisition Chapter 9 – Commercial Products and Services Chapter 10 – Special Negotiation Procedures Chapter 11 – Interagency Acquisitions Chapter 12 – Types of Contracts Chapter 13 – Contract Pricing Chapter 14 – Collateral Policies Chapter 15 – Contract Award Controversies Chapter 16 – International/Comparative (5th Edition) The other book is “Administration of Government Contracts”, part of the same series. It covers the gamut of contract administration, including but not limited to contract interpretation issues, changes, mods and claims. It was my favorite after award reference for many years. You can Google it too. Of course, you can use WIFCON as a myriad of research and daily updates concerning disputes and protests…

Vern, where did I “agree with ji20874 that individual evaluator findings are not records” ?? I have reread my comments in this thread and can’t find that “broad assertion”. I didn’t make any reference to ji’s statement. I composed this during Bob’s temporary freeze on further comments as my response to Don Mansfield’s comment concerning “a broad assertion that individual evaluator notes are not a record”. I didn’t think that I made any “broad assertion” that individual evaluator notes are [never] records. in this post I should clarify my opinion concerning retaining evaluator notes. I will agree that they can be records under some circumstances. But I don’t think that they are a record under our specific methodology. “Don Mansfield said : “I always considered considered everything a record.” I asked Don if he was going to support his opinion or assertion. In response, Don said on the next day: “Individual evaluator notes" is undefined. They may or may not be the types of records required to be retained by the FAR. It all depends on what information they contain. A broad assertion that "individual evaluator notes" are, in fact, not records demonstrates a profound ignorance of case law.” Don apparently changed his long held opinion that he “always considered everything a record”. Don cited a case and concluded that it all depends upon what information they contain. I don’t have a problem with that statement. The 2010 Pitney Bowes Case that Don cited concerned individual evaluator “rating sheets”, where an evaluator would presumably assign a “rating” to a factor, (and subfactors and/or elements?) likely with some basis for the rating(?) I described our process. The solicitation doesn’t state or hint that the evaluation team members will individually evaluate or rate proposals. To the contrary, our solicitations specifically stated that the source selection evaluation team will evaluate and rate proposals using a consensus procedure. In addition, we specifically directed team members not to “assign ratings” to the factors and subfactors during their individual reviews. Under our procedures at the time, ratings could only be determined under a defined and published rating system - AFTER the source selection Evaluation Board meets, discusses and collectively determines and documents the technical acceptability, strengths, weaknesses, uncertainties, deviations, deficiencies, etc.- if any, during the group evaluation and documentation process. Our Source Selection Evaluation Boards were composed of various internal organization members representing different career fields and functions plus one or more customer agency representatives. Not every member had the same technical or business background. Under our process, it would have been a waste of time and resources for individual members to try to document detailed conclusions or to come up with initial ratings. They read and familiarized themselves with the proposal, the proposal submission requirements, evaluation factors and evaluation criteria. They would note what they thought to be a deviation, deficiency, question or uncertainty, an omission, something they thought was a strength or weakness, etc. (as defined in the evaluation criteria) to discuss during the group consensus evaluation. Under those circumstances, the notes of the individuals’ first look at the proposals, without the benefit of group discussions and better understanding of the solicitation requirements and more familiarity with the proposals, were mostly just that - “notes”. They weren’t determinative. Usually first impressions. Those procedures were based upon lessons learned early on and applied over a course of about 90 source selections between 1989 and 2012 or so that I either conducted, led, participated in or supervised others leading a SS. In addition, I generally read the GAO protest decisions most every day from GAO and as Bob posted every day on the home page. My source selections were only protested three times, one GSBCA (construction, Trade-off, we ultimately prevailed after a Court ruling that GSBCA had no jurisdiction over the acquisition), one Agency (construction, LPTA set-Aside for Disadvantaged SB, denied), and the one GAO (services, Trade-off, denied) that I referred to earlier. And Feldman was brilliant in that defense.

The COR from the customer agency administering or overseeing the other agency’s task order task order on-site could be authorized to review and give their approval to the progress payment invoices or other type invoices for the issuing agency’s COR to input into the contract writing system…

At least several Army Corps of Engineers Districts have established Basic Ordering Agreements with multiple small businesses to simplify and facilitate competition and award of purchase orders for small construction, repairs, emergency repairs, emergency supplies, etc. under the SAT and/or micro-purchase limits. I suspect that most USACE Districts and Centers that support installations have used or are now using BOA’s. DFARS and the PGI also address BOA procedures at 216.7…

That’s consistent with my prohibition on individual “scoring” (numbers) or “ratings” (numbers or adjectives). The ratings and the underlying basis for the ratings, which precedes the ratings are done by the group in a consensus…as clearly stated in the Solicitation.

Well, Don- are you going to support your assertion or opinion? Why are individual notes made, before the official group consensus evaluation, a “record” of the source selection evaluation? If so, then why shouldn’t the give and take discussions of each source selection team during the official, group consensus evaluations and reviews, if any by other teams, be recorded and preserved? Because they are all pre-decision preliminary notes and opinions.

ABSOLUTELY!!! I was one of the first members to join Bob’s original WIFCON Forum and the WIFCON Home Page was my home page for at least 15 years, even after my initial retirement. I also used to go almost daily to the GAO and ASBCA websites to read the Protests and Claims decisions.

Exactly!! (Regarding individual evaluation notes and consensus evaluations). In fact that is what I taught, when teaching source selection procedures to various classes. I learned early on not to have or allow the members to individually assign ratings to the various factors/subfactors. Some initial ratings often bore little resemblance to the final ratings anyway. I was part of the subject of one protest of a services contract source selection, circa 2005, as the Chairperson of the SSEB. After I wrote the official consensus evaluation report, I threw away the individual evaluators’ pre-group notes. This is exactly what the protestor’s attorney was looking for. I was involved in one previous GSBCA protest where that tactic was used - to use individual notes to twist and confuse the facts of the official, consensus evaluation. Steve Feldman was our attorney handling this later protest. He tried to rake me over the coals for not retaining the notes of the individual, initial evaluations. These notes were basically the individual, initial thoughts after hastily reading the proposals but before the group discussion and official, consensus evaluation. The KO and I explained to Steve that several of the evaluators changed their opinions after the notes were discussed in the group, admitting that they either didn’t have a good understanding of those aspects of the proposal or had misunderstood the proposal and that the lawyers would only try to twist the evaluation. We reminded Steve that the RFP solicitation clearly stated that the evaluation and subsequent ratings of proposals would be based upon the SSEB’s consensus evaluation and that we would document any dissent from the conclusion- of which there was none here. Steve Feldman then changed his mind and strongly supported us in the government’s reply. Steve convinced the GAO’s attorney. EDIT: The GAO denied that aspect of the protest and every other basis of the protest. The PCO and I spent a Saturday with Steve formulating the Government response to the Protest.

Here is a helpful DCMA reference. Although it is Agency specific, it contains plentiful details and numerous references. https://www.dcma.mil/Portals/31/Documents/Policy/DCMA-INST-136.pdf However, unless you can provide more information about your needs concerning “process[ing] an assignment of claims” and what party to the contract you work for, I’m not going to research any deeper. I may be wasting my time. Your initial post was devoid of any information. It isn’t reasonable to ask others to spend time researching this important aspect without providing any context. From the government side, legal review of an assignment of claims is a likely a must. From the contractor view, you should have legal involvement due to the subject matter of an assignment of claims.

What besides the policies and procedures in FAR subpart 32.8, the contract clause at 52.232-23 Assignment of Claims and any applicable agency supplements or policies do you want to know about? Are you working for the government or a non-government entity? If the government, do you have access to an agency attorney?

The government organization should have ethics standards and training regarding this topic. we had annual training on this subject. Thus, if you want to find out if such events are proper, you could ask the KO. It would be a pure no no in my former, DOD Army Agency.

Carl, my last post was responding to Arlene’s question concerning customer agency participation in her agency’s contractor selection and being a “co-COR during the A-E task order performance. My USACE organizations allowed and encouraged client/customer participation in the requirements determination, selection, design development and design review processes. Not sure why a customer agency would need a co-COR for an A-E design task that is administered by the agent agency. Usually makes sense not to duplicate the official COR role during a design task that is performed at the A-E’s offices. That question should be the decision for the PCO. But the FAR doesn’t prohibit it. I suppose that it depends on who will assume the lead for the various post award processes/phases. The customer lead on our projects was typically titled as the customer’s project manager, project engineer or project architect.

The key takeaway is that - unless the agency or higher policy prohibits it, qualified, client agency personnel may participate on a “vendor” selection team. I hate the term “vendor” applied to an A-E firm. As a registered professional engineer (retired) and having been a design and construction engineer in an A/E firm , I was never called a “vendor”. I provided professional planning, engineering and design services for my clients. I didn’t sell them.

Good points.