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Everything posted by ji20874

  1. I agree with your "So far so good" statement. I wish you were able to stop there. 🙂
  2. My two cents: Notifying the contracting officer and following his or her instructions is the right thing to do. Notifying the other party is not the right thing to do. If necessary, the contracting officer can give whatever notice is needed to the other party.
  3. Boomer365 Why did you wait until today to share that the Government directed you to leave the work unfinished for all this time? If you want advice, you have to be willing to tell the story. We're getting bits and pieces, and we're not getting answers from you to our questions. I hope you are relying on an attorney with whom you have been candid.
  4. If your company received a competitor's ENs, you may reasonably assume another competitor received your ENs. The next step depends on you, your competitors, and the agency. Almost anything is possible.
  5. govt2310, Have we talked about this matter before? A while back, someone was talking about whether a contractor's violation of law sticks to the agency or to the contractor -- am I recollecting rightly?
  6. Boomer365, What will you do if you are unable to come to agreement with the contracting officer?
  7. It is normal for contractors to charge preparation costs to overhead accounts. Those indirect costs are part of the hourly rate. When the contractor starts real work, it will re-coup those on-boarding costs through those indirects. Para. (a)(3) of the contract clause at FAR 52.232-7, Payments under Time-and-Materials and Labor-Hour Contracts, indicates that the Government pays for labor performed on the contract. If the contractor has not performed any labor on the contract, it is not entitled to any hourly rate payments. At least, that's how I see it.
  8. contractor100, No one here purported to speak for other contracting officers and their expectations. I spoke for myself. Who knows that thoughts other contracting officers have in their minds? 😉
  9. I do not have any such understanding. I am mindful of FAR 42.1503(d)'s instruction to government employees that "...the completed evaluation shall not be released to other than Government personnel and the contractor whose performance is being evaluated..." -- but I am unaware of any restriction on the contractor's sharing of the information from its own report.
  10. Well, if the prime contractor's request is not a notice under para. (c) of the contract clause at FAR 52.232-22, Limitation of Funds, then you may ignore it. It seems that there are adequate funds already on the contract to cover the unexpected increase in subcontractor costs.
  11. Boomer, Now you are introducing something wholly new -- a Government delay. I asked earlier if you had any basis for expecting payment for the two years of staying on site, and you didn't answer that question -- but now, I suppose the answer to that question is YES. Good luck -- negotiate the best deal you can. I cannot discern any reason for any entitlement at all based on what has been shared above, but you know the facts and we don't. I suppose the REA will be based on para. (b) of the contract clause at FAR 52.242-14, Suspension of Work? If so, remember that your entitlement to recover costs only reaches to 20 days before the date of your notice contemplated by para. (c) of the clause. I hope you gave this notice two years ago!
  12. Was the prime contractor's request presented as a notice of overrun under para. (b) of the contract clause at FAR 52.232-20, Limitation of Cost, or para. (c) of the contract clause at FAR 52.232-22, Limitation of Funds? If not, I'm thinking this isn't your concern but is a matter between the prime and the sub.
  13. Have you thought about updating your schedule and finishing the work? Even if you are hopeful for the new work, updating your schedule (see contract clause at FAR 52.236-15) might alert the Government that they need to come to terms with you to get the new work started sooner rather than later.
  14. Boomer, If the Government decides not to proceed with the modification, but chooses instead to end the task order, do you have any basis for expecting payment for the two years of staying on site? I ask because you skirted one of my questions. I asked if your decision to remain on site even after demobilization was your business decision, and you answered that your decision to demobilize was your business decision. This kind of sparring and evasion will impede my ability or willingness to make any recommendation. The facts matter. It really matters whether your remaining on site (for security) was your business decision or was Government direction. Your decision to demobilize (except for security) is irrelevant to this entire discussion. I also asked if the work was complete, and it now seems the work is not complete. Was it your decision not to complete the work? If YES, and inasmuch as there was no stop-work order or suspension order, all the costs associated with protecting your unfinished work might well be your costs to bear, with no increase in the contract price (assuming this is a fixed-price contract). If this is true, maybe you really need to cozy up to the contracting officer and negotiate as good a deal as you can -- you may have no basis for demands.
  15. You say this is new work -- therefore, the Changes clause does not apply, right? I have only questions, no recommendations-- answers to questions might help me to give recommendations. Have you exhausted all of your negotiation acumen to negotiate a price that you can live with? The contracting officer can do anything he or she wants, but I am not certain that such a unilateral modification will withstand scrutiny. Are you prepared to challenge the validity of the unilateral modification as outside the scope of your task order? Do you know the authority for the proposed unilateral modification? If it is the Changes clause, are you prepared to submit a request for equitable adjustment amenable to the Changes clause in the contract? Are you willing to file a claim under the contract's Disputes clause if you are unable to come to agreement on the price of the work? Did the Government accept and make final payment for the previously-completed work? Are you willing to file a claim to force the Government to accept and/or make final payment for the previously-completed work? Was your decision to remain on site even after demobilization your business decision? Or was it Government direction?
  16. So many acquisition professionals carry around so much baggage in their minds -- I hope this exchange will help some of our readers shake off their errant and encrusted baggage. Learning and honoring simple and correct principles is important.
  17. And there are other possible methods not using point scores or adjectival ratings -- for example, direct comparison and rank ordering such as A is soft and B is softer than A. I suppose some readers are reading thoughts in this thread that they have never imagined. Here's maybe another one: A source selection evaluation need not be based on identifying strengths, weaknesses, significant weaknesses, and deficiencies in proposals -- it is not required to evaluate specifically for these things, and yet so many evaluation plans do this. And then assigning ratings based on counting these adds stupidity to stupidity (speaking broadly). Yes, the FAR mentions them, but it does not tell us to evaluate for them. We should evaluate for quality or other attributes, and then the strengths, weaknesses, significant weaknesses, and deficiencies will become self-apparent without specifically looking for them -- and we then use these, or at least the significant weaknesses and deficiencies, to help shape discussions and in debriefings (but not for the evaluation).
  18. Does the FAR prohibit this? Where? Comparative evaluations are expressly allowed for simplified acquisitions, and the guidelines for fair opportunity comparisons says scoring of offers is not required. For source selections, some people say FAR 15.303(b)(4)'s statement that source selection authority (SSA) shall "ensure that proposals are evaluated based solely on the factors and subfactors contained in the solicitation" means the agency is required to evaluate each proposal against factors and subfactors and is a prohibition on comparison. I beg to differ with those people. For me, an evaluation involving a direct comparison of offers based solely on the factors and subfactors is okay for a source selection. For a source selection, the FAR does not require the use of either numerical scoring or adjectival ratings -- although I admit that most practitioners seem to think that scoring or rating is required. Indeed, FAR 15.305(a) expressly allows for ordinal rankings, and, well, the only way to do ordinal rankings is to directly compare.
  19. I am not a fan of numerical scoring in government procurements, but I don't think it is because of ignorance. I'm not a fan because the process is unnecessarily complex for the vast majority of government procurements as my primary reason. But I acknowledge that there is a place for numerical scoring for very complex acquisitions.
  20. Vern's answer is right. But I will add that the justification need not be dollarized or objectified. See FAR 15.308: "The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision." Example-- Pillow A -- $10 -- Soft Pillow B -- $12 -- Softer acceptable: I select Pillow A as the best value. It is not as soft as Pillow B, but it is still sleepable. And I am not able to justify paying 20% extra for B's additional softness. /s/SSA Metro Productions Government Services, LLC B-416203, B-416203.2, Jul 6, 2018: While the SSA noted that “Metro’s approaches have appreciable merit,” he determined that the “level of technical superiority of Metro’s proposal [did] not justify a price premium of approximately 18% higher” price when compared to DCG’s proposal, which was assigned a good rating under the technical factor. Id. In making his final decision, the SSA took into account the substantial confidence ratings both proposals received for past performance, and decided that price was the significant discriminating factor in Metro not receiving award of the contract. Accordingly, we deny this protest allegation because our review of the record confirms that the Army reasonably selected a lower‑rated, lower‑priced offer after concluding that the price premium involved in selecting Metro’s higher‑rated proposal was not justified in light of DCG’s good technical competence that was available at a lower price. also acceptable: I select Pillow B as the best value. It is softer than Pillow A, and that softness will contribute to better sleep and better other outcomes. The better sleep and other outcomes is worth the 20% price premium. /s/SSA Allied Technology Group, Inc., B-282739, August 19, 1999: In making the tradeoff decision resulting in an award to an offeror with a higher technically rated, higher priced proposal, there is no requirement that the agency provide an exact quantification of the dollar value to the agency of the proposal's technical superiority. MVM, Inc., B-407779, B-407779.2, Feb 21, 2013: Where a cost/technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with additional costs. However, there is no need for extensive documentation of every consideration factored into a tradeoff decision, nor is there a requirement to quantify the specific cost or price value difference when selecting a higher-priced higher-rated proposal for award.
  21. REA'n Maker, So, the agency only paid the contractor a partial amount? Since you are talking about a cost-reimbursement contract, FAR 52.232-20 para. (g) or FAR 52.232-22 para. (j), whichever is in the contract, will come into play when a change order is involved. A contractor's failure to follow those clauses may easily result in non-payment of overrun amounts, and rightfully so.
  22. So, it seems the agency erred in its award decision, but the work may be complete or almost complete and hallowed is not going to get the work. Withdrawing the protest means hallowed loses and the agency's record remains spotless (no sustained protests). I support Don's question to hallowed, "what outcome do you want?" FAR 33.103(d)(2)(vi) says a protest to the agency is supposed to include a "[s]tatement as to the form of relief requested." The agency does nOt need hallowed's permission to "continue with this award" if "it is in the best interests of the Government" (FAR 33.103(f)(3)). On the other hand, a withdrawal might help someone in the agency out of a bureaucratic bind, and hallowed's courtesy might be remembered later.
  23. If you are buying an item of supply, and you want the contractor who furnishes it to also deliver and install it, that seems to me as a general rule to still be a supply contract.
  24. if you withdraw your protest, you can hope that the agency will do what it said it will do. If you do not withdraw your protest, the agency will declare to the GAO (or other protest tribunal) that it is taking corrective action and will petition the GAO to dismiss your protest, and then you can hope that the agency will do what it said it will do. At least, this is how I understand these matters.
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