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joel hoffman

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  1. Is CERCLA ever considered A/E?

    As Vern said, it depends upon the precise nature of the environmental services covered by the ID/IQ contract for a CERCLA (superfund) project. Is this a comprehensive contract for studies, reports, remedial design, remedial action (e.g., monitoring, excavation, removal, construction of facilities, extraction or injection wells, etc.), operation of facilities, etc.? Can you share the WBS (Work Breakdown Structure) of the contract scope of work? If comprehensive, the tasks could cover one or more of project or program management, design (a/e), construction , operation and maintenance (service) contracting methods. The answer to your title question, “Is CERCLA ever considered A/E”, the answer is “yes”. If this is comprehensive scope of work, then I doubt the truth of the statement that civil engineering (or environmental engineering or geotechnical engineering, etc.) design doesn’t require the use of licensed engineers. See, for instance, https://www.epa.gov/superfund/superfund-remedial-design-remedial-action . I honestly don’t know the characterization of an overall Systems Contract (ID/IQ) for Environmental Restoration Services but individual task orders would be characterized by the type of work being ordered. I believe that the Omaha District of the USACE is the Certer of Expertise for Envirionmental Restoration, HAZMAT, CERCLA (Superfund), RCRA, etc. There are other Corps organizational Activities performing this type of contracting and Program Management. They could probably answer or lead you to an answer. I certainly know that the seven Systems Contracts that I worked on for Destruction of the US Chemical Weapons Stockpile included A/E services, Construction services, and/or design-build services and all included Services for Program Management and operations and maintenance of the Plants . Are there any USACE members here who will participate in this thread? Of course, the original poster should provide some more description of the scope of the intended ID/IQ.
  2. Plan of Action for SB Goals

    Are you saying, in effect, that you didn't subcontract out portions of the work that you had originally planned to sub to SDB, WOSB, and HUBZone firms?
  3. Cost Anylsis for T&M Contract

    napolik is describing is what I would call a “technical analysis” (see 15.404-1 (e) Technical Analysis) as part of a cost analysis. Why not have the customer’s technical personnel who provided the estimate perform the analysis and justify their basis of estimate or otherwise advise you?
  4. Assessment of Actual Damages

    Yep . Again, the key to utilize 52.236-9 after acceptance is to be able to establish that the faulty construction that caused the damage is/are due to latent defects, fraud or gross mistake as amounts to fraud , etc.
  5. Assessment of Actual Damages

    Got it, thanks for the clarification, Vern. I did not clearly state that I was referring to revocation of acceptance of latently (that is actually a word) defective work which caused the damages, not necessarily all of the work. I admit too, that I was lazy and didn’t want to keep switching between tabs on this $&@#%€£ IPhone to retrieve the correct term from the Deskbook Article. I agree with you that synonyms may not exactly fit under every context. I didn’t go into depth. My intent was to introduce another clause to consider, other than those being discussed in this thread. To be applicable in this scenario, there must be an exception to finality of acceptance of the faulty work. I have used the 52.236-9 clause several times to hold contractors responsible for damages to existing work, utilities and even to adjacent construction. The key in this instance is to be able to avoid final acceptance of the faulty work, so that the operative clause in the contract during pre-acceptance will allow the government to hold the contractor accountable for direct damages to the government. The clause is typically used where contractor activities damage existing site work and vegetation, sidewalks, curbs, streets, underground utilities, etc. However, by the plain language of the clause, it is also applicable to scenarios, where faulty electrical and plumbing installation disrupts or damages other electrical systems and may cause water damage. If the electrical utility incurs costs due to a contractor’s negligence, those damages should be the contractor’s responsibility, too. Im speculating here. But it would appear that faulty connections (in PEX?) may be either the result of using faulty crimp rings or faulty crimping. It would be very difficult, in my estimation, for the VA or other typical government agencies to have prior knowledge of such faulty work or to be able to visually detect the faulty connections. That’s one reason why plumbers can charge such high prices for their services. I recently told a plumber that I would have hired a doctor or lawyer to fix my frozen/burst water line had I known how expensive it would be for a 30 minute repair. But I learned how to install PEX water lines and associated fittings. I don’t know about lost opportunity or lost business but suspect that it would require a clear breach of contract or something other than the normal contract clauses. It goes both ways. It is difficult for contractors to recover loss of opportunity, etc. If a KO, contract specialist or other contract administrator isn’t intimately familiar with all the construction contract clauses or what conditions can except the government from finality of acceptance, they are are treading on dangerous ground if they don’t consult with an attorney who has experience in construction contract law/case law. I will be frank that many of the attorneys that I worked with needed some “nudging” and enlightenment, too. No, you didn’t upset me. But I figured that I was seizing an “ I gotcha” moment with regard to the paragraph (l) reference to inspection of supplies.
  6. Assessment of Actual Damages

    What does FAR 52.246-2, Inspection of Supplies -- Fixed-Price, have to do with a construction contract (in particular, paragraph (l) ) ? I didn’t catch the distinction that you were trying to make. "Be careful!"
  7. Assessment of Actual Damages

    That's why the OP needs the advice of an attorney with knowledge of construction contract law and the resources to research the case law. It is correct that the Deskbook didn’t use the word “nullify”. It did mention “revoking acceptance” and “avoiding the finality if acceptance”. Nullify and revoke are synonyms of each other (as well as “void”), although I don’t represent myself to be an attorney or to know the legal distinctions between them. EDIT: I am merely mentioning another possible approach or remedy to consider under a different clause than mentioned herein. I asked what the OP's attorney are saying. The OP would be a fool to take action on his or her own on such a post acceptance issue without consulting legal counsel. I had some experience with latent defects, where we* were able to obtain repairs beyond the warranty period by effectively revoking acceptance of that part of the work. The situations didn’t develop into claims. In one instance, the contractor improperly hooked up building transformers, resulting in 130 volts in a dorm, damaging real property equipment and personal property. It was a long time (30 years) ago. Of course, we* had to establish that there wasn't a patent defect - that it was latent. I think we also successfully dealt with a “gross mistake as amounts to fraud” once. Again, a long time ago. What are your lawyers saying? EDIT: Consider 1) is acceptance final and conclusive? 2) If not, then can contract clause 52.236-9 be used in order to hold a contractor responsible for damaging property, including property near the site (neighborhood?) and possibly for consequential damages (chargeback by the utility?). I have successfully used it several times during my career for contractor caused damage during contract performance. Hopefully, the OP has access to an attorney and to a copy of “Administration of Government Contracts”. (* "We" => my particular US Army Corps of Engineers' organizational assignments)
  8. Assessment of Actual Damages

    If a latent defect is discovered after acceptance, it can nullify the acceptance. See discussion and some citations, starting on page 18 in Chapter 19 of the Contract Attorneys Deskbook . If acceptance is nullified then both parties have the rights and responsibilities under the contract that they had before inspection and acceptance. Think about it. If faulty work caused damage to existing utilities or structures or property - including nearby property during contract performance, the contractor would be (may be) responsible for damages and some collateral damage under the clause 52.236-9, Protection of Existing vegetation, Structures, Equipment, Utilities and Improvements. What are your lawyers saying?
  9. Truth Decay

    I was going to mention that but was afraid that you’d debate me about it or ask me to prove it. Hee hee 🤠
  10. Truth Decay

    Bob, you are correct that a fact doesn’t necessarily require agreement to make it a fact. The quote from the Rand Report didn’t appear to say or suggest that. I would probably agree that I can make a complex decision with more confidence (have more confidence in my complex decision) when my decision is anchored by facts that are “agreed-upon” *, with reliable data to support the fact or the decision - than a decision I make, based upon information purported to be factual, where there is little or no agreement about the information or based upon information that is purported to be factual with questionable data or otherwise unreliable data. * depending upon what is meant by “agreed-upon” data. I don’t know if the Report defined that. If Vern doesn’t know what they meant, I would guess that it didn’t. Vern stated that it appears to be a “conclusion”. If so, then perhaps the Report provides the necessary information to so conclude. I freely admit that I didn’t read it. These are just my opinions.
  11. Sole Source Procurement

    Been out of pocket today. Thanks for the additional information regarding the scenario. Agree with the respondents that, if you don’t agree with all of the terms of the RFP, you should clearly qualify your offer. From the prospective contractor’s perspective, it should prevent the KO from unilaterally awarding a contract that would contradict the terms of your offer. Such a contract award would be invalid, as there is no meeting of the minds.
  12. Sole Source Procurement

    FAR Part 15 negotiated acquisition procedures (15.0) apply to non-competitive acquisitions to the extent applicable, including 15.4 Contract Pricing. For DoD sole source acquisitions, see also DFARS, PGI and Agency Supplements. 15.4 discusses proposal analysis, preparing for negotiations, establishing objectives, some aspects of negotiations, documenting the negotiations, etc. 52.215-1 is for competitive negotiated acquisitions.
  13. Maybe the robots will make their humans “pets” someday.
  14. SAP Modification PNM

    Concur with Vern. It makes sense to me that if you are modifying any contract, you should be able to justify why, how you did it, how you determined that the price and or time adjustments were necessary and reasonable, etc. for the record. Anyone that has ever had to review, Close out, take over administration of, settle disputes , investigate, etc. contracts or contract actions would understand the need to document all contract actions taken. Contracting officers, specialists, administrators, etc. should understand this and realize that if you die, retire, get sick, transfer, get promoted, get investigated, have to justify your actions, etc. - someone else should be able to review and or take over administration of the contract, and be able to track the status of all actions from award onward. You are hired and entrusted to spend someone else’s money. That should be taught in the very most basic Contracting 100, 101 or whatever. I was told that on my very first day working for the government as a contract administrator.
  15. You don’t necessarily need a payment bond.
  16. Mike, are you looking for a waiver of payment protection for a contract for construction less than $150k that would be performed overseas, particularly on non US owned property? As I recall, our overseas construction contracts generally required performance guarantees other than bonds, such as Bank Letters of Guarantees, in lieu of performance bonds. Since persons or contractors, subs and suppliers can’t file mechanic liens on property owned by the US Government in the US or in US Territories, payment protections are required for such contracts over $150k to help protect workmen, subs and suppliers. The KO may be able to waive the amount or type of payment protection but not the requirement. So, what kind of a waiver are you seeking? Performance, Payment, both? Domestic or foreign locations?
  17. Vern, I agree. Never mind. Carl, I generally agree - The question related to a UCF solicitation. I assume that Govt2310 is referring to the UCF. There won't be a section "L" or "M' in a non- UCF solicitation. There should be no reason to include Section L in the contract. I originally meant to say, don't identify something as a "contract requirement" in Section L if it won't be identified as a contract requirement elsewhere in the solicitation ( or become s contract requirement by incorporating that part of the proposal into the contract). I don't think that it is necessarily forbidden to refer to, repeat or describe a solicitation requirement in Section L - just don't state it there, exclusively. I hope that is clearer.
  18. Waiver of First Article Approval

  19. Carl, the concept is the same for UFC or non-UFC. if you want something stated in Section L (or non-UFC equivalent) to become part of the contract, then state or reference the requirement in the contract. As for the basic question asked in the original post - answered.
  20. I'm referring to the USACE (Army Corps of Engineers) as "our", plus there are some other agencies who have incorporated the same or similar clauses into their contracts, presumably after attending our Design-Build "PROSPECT" Course. I'm retired but wrote or co-authored most of the design-build clauses that USACE uses. Certainly, the government can say: "Upon contract award, the Government reserves the right to incorporate specific language in the awardee's proposal into the contract." However, for construction or design-build contracts, that doesn't necessarily cover situations where a proposal feature is later found not to work or to meet the solicitation requirements, whether they be prescriptive or performance. Our Order of Precedence clause states the solicitation requirement would override the proposal in the event of a conflict. Of course, a basic principle is that the government is not supposed to knowingly make award of a non-conforming proposal and also has a duty to make reasonable efforts to evaluate proposals for conformance. And there is typically turnover in the key personnel that were proposed and occasionally in key subcontractors that were proposed. The contract should state what the requirements are for proposing substitutes or replacements, how they will be evaluated for KO approval or disapproval. These are but examples... So "simply say" , without any other clarification or context - I would say, that is generally not advisable, in my opinion.
  21. The short answer is that – if you want something stated in Section L to become part of the contract, then state it or reference the requirement in the contract. As an example, if you want a design-builder to use registered architects and engineers and you want it to use the ones that it proposes and will be evaluated, you should state that as a requirement somewhere in the parts of the solicitation that will be in the contract. Same concept applies to minimum requirements for key construction personnel. If you want to control the process of proposing and accepting replacements, state how in the contract. In our case, we do that using a clause that was developed from the A-E contract Clause 52.244-4, Subcontractors and Outside Consultants) If the requirement is defined or explained in the evaluation criteria in Section M, then I'd say it generally should reflect something required by the contract.
  22. That doesn’t mean that you can’t incorporate all or parts of the successful offerors proposal in the contract, provided that you so state in the solicitation. As for something in Section L that you want to be included in the contract, the proposal requirement should reflect or refer to something that is already stated or referred to somewhere in the other Parts of the solicitation that will be included in the contract.
  23. "Gray Market" Items

    Will the manufacturers warranty the gray market items?
  24. Congress Passes Too Much Acquisition Legislation

    Sometimes, industry lobbying groups propose legislation concerning their specific areas of interest, which is poorly conceived or drafted, without a full understanding of the bill's impact or ramifications. The Congressional staffers often don't understand the subject matter, either. When the DoD and/or civilian agencies' so called subject matter experts weigh in during coordination reviews of the legislation, it sometimes backfires on the industry originators. A couple of years ago, industry initiated legislation intended to limit the use of the "One Step, Turnkey Design-Build" method in 10 USC 2862. However, after the DoD's engineering and construction agencies responded to the draft language, it ended up expanding the allowed use of One Step D-B for more types of projects beyond new construction, such as repair and renovation projects. Recently, industry D-B lobbyists have been pushing again to limit the dollar limits of projects that could use the one-step method. However, they are proposing to impose the limits under Title 41, which doesn't even authorize the use of the one-step D-B method. By adding the limitation language under Title 41, it would effectively introduce its use under that Title!! When I asked one of the staff members of the industry coalition group proposing the legislation why it was drafted for application under Title 41, he said that the coalition had been working with congressional members and staff under one of the Civilian committees or subcommittees, rather than the Military side, where the authority for one step design-build is specifically authorized. One or more agencies, such as the Coast Guard have been able to obtain specific authorization for One Step D-B under a Title or Titles other than Title 41 but it hasn't been mentioned under that general Title before. In another instance, the NDAA for FY 2018 included language under Section 823, "Exemption from design-build selection procedures". It amended section 2305a of Title 10 to exempt solicitations issued pursuant to an indefinite delivery/indefinite quantity contract from the statutory limitation on the number of offerors that may proceed to step two of the procurement selection process when that D-B process is used. It was drafted by a House Committee staffer who used to work for one of the Military Services' engineering and construction agencies. (Sorry about the Font change)