joel hoffman

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About joel hoffman

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    P.E., DBIA

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    Following God, Family, Sailing, Motorcycling, Hunting, Volleyball; Acquisition, Source Selections, Contract Administration, Construction, Design-Build Construction, mods, claims, TFD, TFC, project controls,

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  1. Assuming that government delays and government "issues" prevented performance of the contract, determine whether the contractor acted reasonably in preparing for performance to start. Determine if the types of costs were necessary and reasonable in amount. Determine if the contractor minimized, reduced or otherwise avoided incurring further costs at any point where it may have become obvious that performance was never going to commence. Regarding cost of "equipment purchased", does this equipment have any residual or salvage value that should be credited back to the government? If you pay full cost, the government should own it and the contractor should turn it over to the government. If it still has value to the contractor, then you don't have to pay full cost and the contractor can keep it. We don't have any information concerning "overhead" so no comment. Just some initial thoughts. Facts might result in different path. The party seeking the adjustment must justify that the costs and types of costs are necessary, fair and reasonable. This might be considered a "constructive termination for convenience...
  2. From the scenario described in the original post, it looks like there is no optional line item to extend the duration of the contract and you're trying to create a time extension for additional services. That is not the purpose or intent of the – nine clause. The – nine clause describes the conditions under which the government may exercise a separately priced optional line item.
  3. Surprise surprise...that wouldn't be the first time that the President has usurped the power of the legislative branch in issuing an EO. Another EO strong arms agencies to consider REQUIRING Project Labor Agreements on federal construction contracts. it's one thing to allow them but entirely another to REQUIRE them. It started with Clinton; Bush II reversed it; Obama reversed Bush.
  4. H2H, Sorry, that wasn't how I interpreted the way you prefaced and phrased the original question. At any rate, I took a business law night class at a local university once. I remember our instructor explaining that sovereign immunity is necessary to avoid the possibility endless, expensive, possibly financially crippling lawsuits against the Country by any or all persons or organizations. As a Republic, we would hope that there are some checks and balances to reduce the possibility of or to prevent abuses by the government. And Congress has often passed legislation, waiving sovereign immunity for various subjects of lawsuits, such as environmental actions and the Federal Tort Claims Act. It makes perfect sense to me. Dont allow it to ruin your sleep. 😊
  5. H2H, see, for example: https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States
  6. Fara: “Domestic construction material” means— (1) ...(ii) A construction material manufactured in the United States, if— (A) The cost of the components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; [Prepare the submittal list of materials and components for the particular system with adequate info to determine what is US manufactured and what is imported. If at least 50% is US manufactured, then I believe that it meets the domestic construction material definition. i think that is consistent with your OP] or : (B) The construction material is a COTS item;' [if ALL of the components and materials are US manufactured COTS items, then it should obviously meet the requirements under both ( A ) and ( B )] I didn't start the rabbit trail about COTS. There appeared to be some debate whether the components would be commercial off the shelf Items. I am not aware of any government or DoD unique components (or wire, conduit, fittings, and other incidentals of fire detection, alarm and sprinkler systems for buildings that aren't found in commercial buildings. They generally fall under the NFPA codes and specs. Actually, your original question was simply whether or not the wire, conduit, fittings, etc. would be considered together with the devices and other components. I haven't found any written guidance but will try one of my contacts within USACE and ask. There are a couple of USACE employee followers here who should be able to find that answer. How about it USACE folks?
  7. Cool. We are in harmony concerning that aspect, then.
  8. I sent a message to Fara earlier, stating that I haven't found any specific information concerning whether wire, conduit materials , etc. are evaluated as part of the total system or as separate materials. I advised Fara to ask the contracting office, if this is a question concerning a specific project.
  9. Fara, I didn't say that. All the materials comprising the system are evaluated as part of the system, regardless of when or how they are delivered to the site - separately or all at once. They aren't accepted or rejected under BAA, etc. individually. Incidentally, under USACE procedures (and other DoD and NASA, using the Unified Facility Guide Specs for construction submittals) contractors generally provide construction submittals for fire alarm and sprinkler systems before shipping materials the submittals would include lists of materials and components with catalog cuts, shop drawings, material lists, etc. that will allow one to evaluate BAA compliance. Fara, you said: "However, regarding your COTS statement: I think it is very unlikely that a fire alarm system could be COTS. Since it is, by definition, a single item of construction material, it is unlikely that that item would be sold to the government, without modification, in the same form in which it is sold in the commercial marketplace. What are the odds that the same system configuration would be sold to the government as in a commercial building, let alone in substantial quantities?" You are confusing COTS construction materials and COTS components with a building system. From my experience, we don't modify the standard commercial off the shelf products used in DoD fire alarm, detection or sprinkler systems, HVAC systems, etc. They are still COTS products. If they are made in the US, they would be considered domestic for evaluation purposes. We might have DoD specific configurations of wiring and components that aren't always used the same way in commercial buildings but the basic components are unaltered standard commercial products. As for fire control panels, they are custom built and configured, using COTS parts, for every building anyway whether commercial or DoD.
  10. The Prompt Payment Act Amendments of 1988 were effective for all contracts awarded after March 31, 1989. However, the final rule was published in the Federal Register on March 31. The USACE awarded numerous construction contracts after March 31 with bid openings prior to the effective date or shortly after, without the new prompt payment and payment clauses. I thumbed through my PPA folders this afternoon and saw where HQ Office of Counsel, PARC and Construction provided detailed instructions in the Fall of 1989 for USACE Districts' contracting offices to unilaterally modify all such contracts, via administrative mods, to update the clauses "by operation of law. " My office prepared all the mods that our District issued and we developed the specific operating procedures, guidance and standardized attachments to payment requests to implement the new statutory requirements for progress payments, based upon the clauses and the revised OMB Circular A-125. Although the new clauses provided the contractors much quicker progress payments (positive cash flow), the new requirements prohibited prime contractors from physically withholding retainage from subs from the progress payments the government made to them. That had been a traditional practice which allowed primes to finance their contracts using the sub's retainage. In addition, the Amendments required that the primes must pay their subs within seven (I think) days of being paid, which further affected their cash flow. Several firms threatened to submit claims for the increased cost of compliance and inability to physically hold the retainage from the sub's. For contracts awarded after March 1989, the government is supposed to reduce progress payments to the prime by the amount of any retainage from the subs or suppliers earnings payments, which the prime must identify in its progress payment request. We informed all those potential claimants that the contract clauses were effective by operation of law and that they were deemed to have constructive notice of the final rule (even though we didn't know it either at that time). I have copies of the directives and correspondence with some of the contractors. None actually submitted claims within our District. EDIT: OMB Circular A125, Prompt Payment, wasn't amended to provide clear guidance and implementing instructions to government organizations, contracting officers, accounting and finance offices and receiving offices (ACO/CORs) until the Fall of 1989, either. My PPA file is very thick and that part of it is 27 years old. I went through it earlier today to refresh my failing memory. It was a BIG deal back then.
  11. I disagree with Todd Davis's interpretation that the construction materials (the system) is manufactured in the US when it is assembled at the site, as I think that is what he is saying. The point of "regardless of when or how the individual parts or components of those systems are delivered to the construction site" simply means that it doesnt matter if the components arrive together, separately, at separate times, partially or totally assembled.. “Domestic construction material” means— (1) (i) An unmanufactured construction material mined or produced in the United States; (ii) A construction material manufactured in the United States, if— (A) The cost of the components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (B) The construction material is a COTS item;'
  12. Fara, is your question related to a specific solicitation or a question in general? If specific, I'd recommend that you ask the government contracting office for clarification. I haven't found any specific official clarification or definition but a "system", such as a telecommunications system or telephone system or building electrical system, generally incorporates the wiring  and conduit that connect the switches,  devices, distribution boxes, etc. 

    i do know a couple of friends that own or work for fire protection installation and maintenance companies. I can ask them how this has been interpreted. You could also ask your contacts at those type firms. 

    1. Fara Fasat

      Fara Fasat

      Joel,

      Thanks for the response. This is not for a specific contract. We are trying to prepare training for a large network of system designers and installers (several hundred) and this is a common question.

      I would appreciate your checking with some of your contracts. It's an important issue, but as you already know, there is no answer in the FAR, and I have been unable to find any cases or other guidance. I don't want to wait until an inspector finds a system noncompliant.

    2. joel hoffman

      joel hoffman

      Fara, I will try to check with my Construction contact tomorrow. 

  13. H2H, maybe the government teams in some of those examples you referred to are tired of being cooerced, bullied and/or what comes close to "extortion", thus are reacting like hard asses. I had the unfortunate opportunity to deal with some of them and it adversely affected my health. It ended up backfiring on them in the end I am no way implying anyone here is acting that way.
  14. Don, I've been told that we have to descope, delete something or halt and notify Congress before exceeding a Statutory ceiling.