joel hoffman

Carl, I agree with you. 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.

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”

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. ** 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.

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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??? 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 3/11/2025 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. This is how I read what I said into the stated criteria: 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. 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.

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.

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

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?

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.

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.