Retreadfed Posted February 13 Report Share Posted February 13 50 minutes ago, Sam101 said: Even if the government awarded to SAIC and ignored the hold harmless clause, wouldn't that clause not apply anyways? Why not? Do you think the government cannot agree to an indemnification clause that is not in a government procurement regulation? Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 14 Author Report Share Posted February 14 13 hours ago, Retreadfed said: Why not? Do you think the government cannot agree to an indemnification clause that is not in a government procurement regulation? I am not an expert on indemnification matters in terms of when or why or how the government accepts the responsibility to compensate a contractor for harm or loss as a result of the contractor performing a government contract. I would imagine that only the clauses in the contract apply, so if there is an indemnity clause in the contract, it would have been in the solicitation (market research would have resulted in the government determining that an indemnification clause of some sort, crafted by the government, is appropriate... and I believe there are some standard indemnification clauses in the FAR, and possibly in agency supplements). I believe that any random contractor provided indemnity clause can be ignored, since contractors can't just plug their custom clauses into a contract just because it's in their small print. I guess that's why the government usually informs offerors that they must state any exemptions to the terms of a solicitation in a certain section of their proposal, I usually state in section L that offerors must state exemptions in their introductory letter, and that this is the only place that the government will consider any exemptions, and exemptions stated anywhere else in their proposal (such as in small print on the last page of their price proposal) will be ignored. It's good to know that, at least according to The Analysis Group, LLC B-401726,B-401726.2 that asking a quoter to remove a custom indemnity clause counts as discussions, I would have thought that this would count as a clarification, in terms of "hi, offeror, I noticed you forgot to remove the indemnity clause from your quote, you probably used a template that you use for commercial business to business contracts, please remove this clause, if you don't remove it, the government will ignore it anyways, actually, since the government will ignore it anyways, don't worry about it, I'm not asking you for a revised quote/proposal, I'm just letting you know that your custom indemnity clause will be ignored." For example, if the FAR Changes clause is in a solicitation, and the offeror has "any changes to the contract will be bilateral" in small print somewhere hidden in their proposal, not in the introductory letter's exemptions section, and the government awards a contract, this doesn't mean that the Changes clause gets overridden by the "any changes to the contract will be bilateral" just because that was part of the proposal. If this sounds too simple and doesn't reflect how things work in real life, then the FAR counsel should change the rules to make everything stated above true. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 14 Report Share Posted February 14 (edited) 16 hours ago, Sam101 said: But maybe I would say "no money no contract" and ask the end user to add $200 to the requisition and award to the first quoter. If you are a beginner, let me suggest that you learn how to negotiate and bargain and then practice it. And learn how to respond to QUOTES. It likely takes more of time, effort and labor cost for you and the other government organizations, offices and personnel to contact the end user to demand $200 more to award a purchase order, then have the end user request the funds, someone process and send the funds to your organization, then your organization processing them - than to call (oh no! “Talk” to them?) or even to email them to bargain for a $200 reduction or discount. I was told several times by contractors that they often don’t initially quote or propose their bottom line best price, especially when subcontractors are involved, depending upon the level of expected competition, market conditions, etc. Why request “quotes” if you don’t think that you have the ability to bargain for better price and/or terms and conditions. The GOVERNMENT is the party that makes an offer to the vendor, after all! AND don’t ever ignore a cancellation penalty or any other objectionable term or condition in either a quote or condition!! 15 hours ago, Sam101 said: and I always just ignore it and pretend it's not there, since I only ask for a price in the price volume, and everything else is irrelevant. It may be a standard term or commercial condition but it’s a conditional quote or offer. When the government responds to a quote, it’s making the offer to the vendor to form a contract… Yes, “it depends upon the situation”. Edit: I learned in a Business Law college course over 40 years ago and in negotiation courses and readings that almost everything is negotiable, especially quoted prices and terms and conditions and even printed and posted sticker and price tags. You can bargain for better terms and prices - even if the quote or offer otherwise meets “acceptable” evaluation criteria. Edited February 14 by joel hoffman Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 14 Author Report Share Posted February 14 3 minutes ago, joel hoffman said: learn how to negotiate I know how to negotiate, thank you, I just like the way "no money no contract" sounds. But I understand your point, well said. 6 minutes ago, joel hoffman said: I was told several times by contractors that they often don’t initially quote or propose their bottom line best price This may be a mistake on the contractor's part, for trying to play games, especially when the solicitation asks for best prices on initial quotes. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 14 Report Share Posted February 14 I bought my first new Honda Accord back in 1983. I learned afterward when the bank sent me the loan papers and conditions that the first payment was due 60 days later. That meant that I was initially paying an extra month’s interest plus residual interest on that interest for the remaining 36 month period. I went back to the dealer to claim breach of the written sales contract and the advertised loan. The dealer said that was the bank’s terms, not theirs. I replied that the dealer was, in effect, an agent for the bank, so they and the bank were both liable for false advertising. I then went to the bank and told the bank manager the same thing. The bank rewrote the loan agreement to make the first payment 30 days after my purchase. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 14 Author Report Share Posted February 14 17 minutes ago, joel hoffman said: You can bargain for better terms and prices - even if the quote or offer otherwise meets “acceptable” evaluation criteria. Right, but when all the stars align, the government can end up staring at a document from the GAO stating "the protest is sustained, on the grounds that the government engaged in improper discussions". Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 14 Report Share Posted February 14 3 minutes ago, Sam101 said: Right, but when all the stars align, the government can end up staring at a document from the GAO stating "the protest is sustained, on the grounds that the government engaged in improper discussions". “It depends upon the conditions”. If there are one or more reasonably competitive offers/quotes in the running, it may make sense to negotiate/bargain with them. But, let’s live in fear of a protest and play it “safe”. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 14 Author Report Share Posted February 14 2 minutes ago, joel hoffman said: The bank rewrote the loan agreement to make the first payment 30 days after my purchase. Interesting. That's better than any dealing I ever had with car dealers, since it makes sense and is a reasonable demand. This one time I looked the car dealer straight in the eye, with a serious face, saying I will buy a $37,000.00 car today if they sell it to me for $27,000.00... they said no, and then I left. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 14 Report Share Posted February 14 18 minutes ago, Sam101 said: Interesting. That's better than any dealing I ever had with car dealers, since it makes sense and is a reasonable demand. This one time I looked the car dealer straight in the eye, with a serious face, saying I will buy a $37,000.00 car today if they sell it to me for $27,000.00... they said no, and then I left. It occurred during the second semester of my night classes pursuing a second degree, in Business Administration - soon after learning what I mentioned earlier. We moved to Saudi Arabia about four months later and sold the car. Fortunately, new Hondas were almost impossible to find at dealers back in 1983. Demand greatly exceeded supply. I think we sold it for what we paid for it. Edit: I discovered in Saudi Arabia that the European versions of new Hondas and other car and small truck brands cost a whole lot less than in the US. I could have bought a used, classic Rolls Royce for about $10,000 in 1987. But it was too much trouble to arrange shipping and import modifications and tariffs, etc. plus we were relocating to Germany. 🤪 (I could also have bought a slightly used, late model D-9 Caterpillar dozer in Riyadh for about $10,000 - 35,000 Saudi Ryals - too.🤠) Quote Link to comment Share on other sites More sharing options...
ji20874 Posted February 14 Report Share Posted February 14 3 hours ago, Sam101 said: I know how to negotiate, thank you, I just like the way "no money no contract" sounds. Yeah, but you have to decide whether you are a professional or a clerk -- and even if you strive to be a professional, your organization might treat you like a clerk. The negotiation examples I shared are legitimate and honorable, and using them will help you shift more to a professional perspective. The clerk perspective pervades the 1102 community, and that is sad. I am glad you are asking questions. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 14 Report Share Posted February 14 43 minutes ago, Sam101 said: I know how to negotiate, thank you, I just like the way "no money no contract" sounds. Here, you would actually be negotiating with your government partner. It sounds better here to say the same thing to the vendor.🤠 Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 14 Report Share Posted February 14 Sorry to drone on. I worked with a Korean American fellow contract administrator in Saudi Arabia on mods and claims for a large construction contract with a Korean contractor. I couldn’t understand why the contractor kept proposing higher labor rates for every mod action, long after our auditors found that they were inflated. We would have to adjust the rates and hours for every negotiation. Then our contractor would agree to the lower amounts. Mr. Chong told me “You Americans are gullible and seem to accept everything at face value. We Koreans bargain for everything, even loaves of bread…” 🤪 I still remember that 40 years later. Edit: One last thought. Do you notice that when you are buying a new or used vehicle from a car dealer, the sales person generally always asks you to “make an offer”, then takes it to the sales manager, who either accepts or rejects it? The sticker or window prices are effectively considered to be a quoted price. I haven’t ever been able to get a salesperson to offer me their best or even a lower price first. But the latest and expanding practice is now “no haggle” pricing. I haven’t bought a vehicle under those pricing arrangements yet… Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 14 Author Report Share Posted February 14 32 minutes ago, ji20874 said: The negotiation examples I shared are legitimate and honorable I agree. I remember a recent negotiation where I had to let multiple quoters know that their prices were too high, but I did not explicitly state the decease the government was looking for in terms of explicit dollar amounts, e.g., $200 or $500, I just said this: Quoter 1: Your price is moderately too high, please decrease. Quoter 2: Your price is significantly too high, please decrease. Quoter 1 decreased their price well and ended up getting the award, I don't remember by how much Quoter 2 decreased their price, but in any event, Quoter 1 got the award. 1 hour ago, joel hoffman said: It likely takes more of time, effort and labor cost for you and the other government organizations, offices and personnel to contact the end user to demand $200 more to award a purchase order I see your point, but just in general, not just in the government, but for businesses as well, I sometimes struggle to understand what "labor cost" means when it comes to performing "extra" tasks, in the sense that if workers are not performing these "extra" tasks, it's not a guarantee that they would spend their time doing something else that is useful to the business, or the government, i.e., the workers might be idle... if the works are idle, then what is the extra cost involved in them doing extra tasks? Is it better to pay workers for being idle? Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 14 Author Report Share Posted February 14 26 minutes ago, joel hoffman said: accept everything at face value Yeah, my wallet is looking pretty thin at the moment, sell me this here brand new Lexus for $15,000.00 with 0% interest and make the loan term 10 years. Quote Link to comment Share on other sites More sharing options...
C Culham Posted February 14 Report Share Posted February 14 1 hour ago, Sam101 said: I would have thought that this would count as a clarification, By my read... Not a clarification because it could/would remove the offeror from the competition completely. A little different than asking did you mean to dot this "i" where the offeror would not be removed if it was not dotted. Material revision Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 14 Report Share Posted February 14 12 hours ago, Sam101 said: I agree. I remember a recent negotiation where I had to let multiple quoters know that their prices were too high, but I did not explicitly state the decease the government was looking for in terms of explicit dollar amounts, e.g., $200 or $500, I just said this: Quoter 1: Your price is moderately too high, please decrease. Quoter 2: Your price is significantly too high, please decrease. Quoter 1 decreased their price well and ended up getting the award, I don't remember by how much Quoter 2 decreased their price, but in any event, Quoter 1 got the award. I see your point, but just in general, not just in the government, but for businesses as well, I sometimes struggle to understand what "labor cost" means when it comes to performing "extra" tasks, in the sense that if workers are not performing these "extra" tasks, it's not a guarantee that they would spend their time doing something else that is useful to the business, or the government, i.e., the workers might be idle... if the works are idle, then what is the extra cost involved in them doing extra tasks? Is it better to pay workers for being idle? Well, you can look at it this way then. If you simply call the contractor and ask him to lower his price, versus taking all that extra time to cough up and process another couple hundred dollars and piss off or otherwise under impress your customer, you have more time to goof off and be idle, not doing other work. Quote Link to comment Share on other sites More sharing options...
Retreadfed Posted February 14 Report Share Posted February 14 9 hours ago, Sam101 said: I believe that any random contractor provided indemnity clause can be ignored, since contractors can't just plug their custom clauses into a contract just because it's in their small print. You started off asking about quotes. An indemnification clause might be a significant factor in the quote otherwise the price would increase significantly. Acceptable indemnification clauses are not limited to the clauses in government procurement regulations. The parties can agree to a special indemnification clause so long as it is not open-ended and is limited to the availability of appropriations. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 15 Author Report Share Posted February 15 14 hours ago, Retreadfed said: not open-ended and is limited to the availability of appropriations So, does this mean that the indemnified contractor is only entitled up to the contract price just like in the case of a T4C termination fee? For example, if a contract, no matter the contract type, is $100,000.00, and the contractor almost finished the work (like, I mean the contractor is literally putting the final nail in the work) and is ready to get paid $100,000.00, and a contractor employee accidently drops a hammer on a subcontractor's toe, and the subcontractor gets injured, there would be almost $0.00 left for the government to cover the cost of the government's responsibility to pay for the subcontractor's medical bills? Or is "availability of appropriations" not the same as "the obligated value of the contract"? Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 15 Author Report Share Posted February 15 In the case of United Marine International LLC File: B-281512, is “FAR Sec. 12.301(c) where a relative technical evaluation is contemplated” implying that FAR 52.212-2 Evaluation-Commercial Products and Commercial Services is only appropriate for trade-off solicitations? And not LPTA? If FAR 52.212-2 Evaluation-Commercial Products and Commercial Services can be used in LPTA, how is “the offered equipment's compliance with the specifications” not an evaluation factor? If this clause is allowed in LPTA, shouldn’t DACW69-98-Q-0328 have had FAR 52.212-2 in the solicitation that looked like this?: Addendum to 52.212-2 Evaluation—Commercial Products and Commercial Services. 52.212-2 is entirely replaced with the following: (a) The Government will award a contract resulting from this solicitation to the responsible quoter whose quote conforming to the solicitation will meet the Government’s requirement, the following factor shall be used to evaluate quotes for technical acceptability: Whether the description of the equipment meets the requirements of the performance specifications in Section C. (b) The resultant contract will not have options, the default text of 52.212-2(b) is not applicable. (c) The Government will make an offer to buy to form a contract, based on the selected quote. (End of provision) Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 15 Report Share Posted February 15 On 2/14/2024 at 6:36 AM, Sam101 said: It's good to know that, at least according to The Analysis Group, LLC B-401726,B-401726.2 that asking a quoter to remove a custom indemnity clause counts as discussions, I would have thought that this would count as a clarification, in terms of "hi, offeror, I noticed you forgot to remove the indemnity clause from your quote, you probably used a template that you use for commercial business to business contracts, please remove this clause, if you don't remove it, the government will ignore it anyways, actually, since the government will ignore it anyways, don't worry about it, I'm not asking you for a revised quote/proposal, I'm just letting you know that your custom indemnity clause will be ignored." For example, if the FAR Changes clause is in a solicitation, and the offeror has "any changes to the contract will be bilateral" in small print somewhere hidden in their proposal, not in the introductory letter's exemptions section, and the government awards a contract, this doesn't mean that the Changes clause gets overridden by the "any changes to the contract will be bilateral" just because that was part of the proposal. On 2/13/2024 at 3:25 PM, Sam101 said: I don't know if I ever received a quote with a hold harmless clause, but I have seen quotes with something like "the customer will pay $X amount if they cancel work within a certain number of days", and it's usually towards the end of a price quote, and I always just ignore it and pretend it's not there, since I only ask for a price in the price volume, and everything else is irrelevant. Even if the government awarded to SAIC and ignored the hold harmless clause, wouldn't that clause not apply anyways? What's the point of asking SAIC to remove it if it cannot legally be included in a government contract anyways? Like, why couldn't the government just realize that the hold harmless clause in SAIC's quote was just boilerplate text that they probably include in all of their commercial quotes that they forgot to remove it? I was under the impression that only FAR and agency clauses apply to a contract no matter that a quotation says. You mentioned several times that you “simply ignore” terms and conditions (in quotes or proposals) that conflict with solicitation terms or that are otherwise objectionable. You can’t simply ignore in quotes and proposals terms and conditions that conflict with the solicitation or are otherwise objectionable. If you want to consider the proposal or quote for award, you need to call it to the vendors attention and have them remove the offensive or non-compliant language. There must be a meeting of the minds to form a contract. “FAR 12.213 Other commercial practices. It is a common practice in the commercial marketplace for both the buyer and seller to propose terms and conditions written from their particular perspectives. The terms and conditions prescribed in this part seek to balance the interests of both the buyer and seller. These terms and conditions are generally appropriate for use in a wide range of acquisitions. However, market research may indicate other commercial practices that are appropriate for the acquisition of the particular item. These practices should be considered for incorporation into the solicitation and contract if the contracting officer determines them appropriate in concluding a business arrangement satisfactory to both parties and not otherwise precluded by law or Executive order.” For example: "In reviewing protests challenging the evaluation of proposals, we examine the record to determine whether the agency’s judgment was reasonable and in accord with the RFP evaluation criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90‑1 CPD ¶ 223 at 4. An offeror has the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably when it fails to do so. Recon Optical, Inc., B-310436, B-310436.2, Dec. 27, 2007, 2008 CPD ¶ 10 at 6. Furthermore, in a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Wolverine Services LLC, B‑409906.3, B-409906.5, Oct. 14, 2014, 2014 CPD ¶ 325 at 3-4." See also, for example: https://courses.lumenlearning.com/suny-monroe-law101/chapter/elements-of-a-contract/ ”ACCEPTANCE: Acceptance by the offeree (the person accepting an offer) is the unconditional agreement to all the terms of the offer. There must be what is called a “meeting of the minds” between the parties of the contract. This means both parties to the contract understand what offer is being accepted. The acceptance must be absolute without any deviation, in other words, an acceptance in the “mirror image” of the offer. The acceptance must be communicated to the person making the offer. Silence does not equal acceptance.” With RFQ’s, the government makes an offer to the successful vendor. In the government’s offer to award, you could specifically identify the specific terms or conditions in the quote that you don’t accept. However, you may not know what the price or performance ramifications of objectionable or non-conforming terms of a quote are. Therefore you need to discuss and negotiate the final terms for the quote . It might result in a price reduction. It might result in a material change to the requirement if accepted that may affect other vendors prices. It might result in a price increase that might affect the quoter’s relative ranking among other competitors. If you are a “beginner”, I hope your organization has an attorney who can advise you about the principles of mutual understanding, not ignoring non-conforming terms and conditions in a quote or proposal, “meeting of the minds”, etc. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 15 Author Report Share Posted February 15 52 minutes ago, joel hoffman said: not ignoring non-conforming terms and conditions in a quote or proposal, “meeting of the minds”, etc. I agree. 59 minutes ago, joel hoffman said: You could specifically identify the specific terms or conditions that you don’t accept in the government’s offer to award. I agree, however, this could count as discussions, since it's the same thing as asking SAIC to remove their indemnity clause. It should not count as discussions though as long as the removal of a contractor's unacceptable custom clause does not affect their price quote, or anything else either, like their technical approach, if that was an evaluation factor. Quote Link to comment Share on other sites More sharing options...
Retreadfed Posted February 15 Report Share Posted February 15 2 hours ago, Sam101 said: Or is "availability of appropriations" not the same as "the obligated value of the contract"? These are different things. For example, a contract may be funded by Army O&M funds. The O&M appropriation is the limiting factor, not the contract value. Quote Link to comment Share on other sites More sharing options...
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