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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. Staying in vs leaving

    MV, what type of industry day events are you referring to? For individual actions or for presentations of programs?
  2. Staying in vs leaving

    MV, you asked a broad question. I’m wondering what type of acquisitions you are referring to. You mentioned uninterested “suppliers”. If you are experiencing a lack of interest across all types of acquisitions, then it would seem to me that few firms want to deal with your organization. You should want to become a “great customer”. I can say that a simple answer from my perspective and experience is to “make the solicitation attractive to industry”; read your solicitations from a supplier’s perspective; treat suppliers fairly with respect and honesty; and make prompt payment for goods and services provided. As for “how to” make the solicitation attractive to industry, it depends upon the type of acquisition but frame the requirement so as not to restrict competition. Use reasonable evaluation and selection criteria. Don’t over complicate the acquisition process and keep industry response costs as low as possible. Make prompt selections and awards. Don’t go on “phishing expeditions - effectively use market research before issuing solicitations. Seek industry feedback during your research. In summary, to promote competition, you must become an attractive customer.
  3. CPARS comments

    Bob, I suggest moving this thread from “Contract Award” to “Contract Administration” for future reference search’s.
  4. ji, are you saying that a CO decision within 60 days, must include the final settlement or that the settlement is unilateral? I don't think so.
  5. No disagreement with that. Since this is a topic under the "For Beginners Only" Forum category, I would also suggest caution and due diligence. However, I don't recommend automatically taking a full 60 days to render a "decision" on the merit of a claim - which doesn't necessarily include final settlement or payment of the amount within that time. The government shouldn't unnecessarily drag out the reimbursement process. As D_Wess has indicated, "[t]hese are small companies that really don't have the ability to float the Government, so we're hoping a two tier decision is acceptable." EDIT: Posted before I saw Vern's post immediately preceding this. I agree that the clause is indefinite and the third paragraph mixes reimbursing the contractor for repairs and charging the contractor for government repairs. In reading the clause think that it would be reasonable to expect reimbursement to be for loss, damage or destruction similar to an insurance company's liability to another driver's vehicle in the event of an accident involving it's insured client. I've been able to get the other driver's company to reimburse me for what it would take to buy a similar replacement vehicle, considering age, condition, etc. , market availability, etc. I couldn't get reimbursed for a new replacement vehicle, nor didn't settle for ACV or trade-in value of my car. I was able to negotiate the cost of a one year newer replacement vehicle than mine because it wasn't possible to find one of the same year and model in the same condition as my vehicle.
  6. I think that ji’s suggestion to check for insurance coverage that might be available to offset some of the contractor’s costs is a good idea. However, I don’t necessarily agree in purposely delaying settlement of a known liability in a sum certain amount in this case, where you are uncertain of entitlement or possible amount for “loss of use”, in order to gain a perceived advantage in the overall negotiations. I am assuming that the contractors can substantiate their claimed replacement costs and that some reasonable depreciation of the destroyed equipment has been considered.
  7. Your question is too general to provide an answer. Please frame the scenario. Who is billing for what costs under what type of contract and/or subcontract; what type of contract action is involved; what is the pricing type of the contract, etc.?
  8. I don’t agree with ji.
  9. Section 801 of 2018 NDAA

    Contractors in the construction business don’t generally pay Grainger catalog “list” prices, in my experience. The government shouldn’t either.
  10. Are Payment Logs Required?

    ji,, that is not a condition of the contract payment or prompt payment clauses in order to be paid or to be considered an "acceptable invoice". And - why pay additional taxpayer funds, if applicable, to require a contractor to perform that additional effort? A contractor likely won't know when the KO or COR approved the invoice for payment, if the government is using internal software system for payments.
  11. Do construction warranties survive termination?

    If you will be having the surety complete the project, all the terms of the contract (except any modifications thereto addressed in the takeover agreement), including the warranty will continue. You memorialize that continuation in the takeover agreement. Also address any open issues that are reserved by either party. Of course, the contract terms also address the rights of the surety (same as the Prime Contractor). The surety will likely hire a completion (sub)contractor to do the work but you still deal contractually with the surety.
  12. Do construction warranties survive termination?

    I will add - As part of the takeover agreement, you will establish a new contract completion date for the Surety to complete the project. If it is after the current completion date in the terminated effort, you will have to determine what, if any, excusable delays must be considered to establish what the revised completion date would have been, absent a default termination. I have seen and have also negotiated the payment of liquidated damages as part of the takeover agreements with sureties. All of the agreements were prior to completion and, in most of those cases, prior to the current contract completion date. For the substitute contracts, we made the surety bring the checks to us before the KO would sign the agreements . The LD’s totaled over $400k for the three substitute contract agreements and the first one that I saw done that way in our office in Saudi Arabia was for $5 million. Assuming that the TFD is valid, the government has broad rights and also has the responsibility to mitigate costs, damages and time to complete the project.
  13. Do construction warranties survive termination?

    I thought it was covered in Nash and Feldman’s or Nash and Cibinics “Administration of Government Contracts” but didn’t see it this morning. However, the references that I mentioned should be a good start. A TFD terminates the contractor’s right to proceed with the work but doesn’t terminate all the rights of the parties under the contract. The Surety is still obligated to the government and that obligation includes any guarantees or warranties. The surety will most often undertake completion to minimize their costs but sometimes offers the government ( I forgot the term for the type of agreement) a new surety and prime contractor. I negotiated numerous takeover agreements with various sureties and three of the substitution agreements with one surety that just wanted out of the responsibility to complete the contracts. The surety proposed new prime contractors for the three projects and new surety(ise). In either case, you will generally negotiate the terms and conditions for the completion of the project. In my experience, the original surety was required to retain responsibility for warranting any work by the original contractor performed prior to the substitute contract. Of course, under a surety take over agreement to complete the project, you will require the surety to assume any warranty or other guarantees. They agreed to those terms.
  14. Do construction warranties survive termination?

    See also the SF 25 Performance Bond. The bond is effective during the life of any guaranty required under the contract. Are you familiar with the Surety’s rights and obligations under the performance bond? You can perform a Google or other search for articles that discuss the legal rights of the parties under a construction contract termination for default.
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