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joel hoffman

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  1. I once developed and implemented a method to execute myriads of individually small changes to fix design coordination conflicts in large, complex industrial plants about 18 years ago. It probably wasn’t FAR kosher but was successful in avoiding impact delays and impact costs to critical treaty mandated milestone dates. The construction phase of three, multi-hundred million dollar plants were priced as FFP, within overall $ Billion(s) Systems contracts. In the late 90’s to mid 2000’s, I was Division Chief of Contract Administration for construction phases on Systems Contracts at seven sites for (design-build at four plants) construction, systemization and operation of Chemical Weapons Demilitarization Plants to destroy our Nation’s Chemical Weapon Stockpile. We were under a Chemical Weapons Treaty deadline with Russia to destroy the weapons. We had three sites under construction at the time. Two plants had been completed and were in operatiions and four others had not yet started. The three plants under construction at the time used huge furnaces to incinerate Mustard, Sarin and VX chemical agents that had been drained from various types of munitions as they were disassembled in the plants, or from bulk stored agent or incinerated agent filled rockets that were chopped into pieces. There were several separate types of furnaces and process lines at each plant. Each furnace flued toxic waste gases through very complex Pollution Abatement Systems (PAS) that were all mounted on a huge structural steel tower with smoke stacks. Essentially all of the process equipment for the weapons handling systems and production lines, PAS etc. were government designed or performance specified. Each plant had over $100 million dollars of GFE process equipment, most of which was pre-positioned and stored on site. The plants were designed from prototypes at Johnson Island and Tooele, Utah. However, the process system designs were not mature and were constantly changing due to lessons learned, design evolution, differences between manufacturers specific equipment specs, etc., etc. The plant designs were site adapted from the earlier plants, using 2D CAD, but had never been able to keep up with design and equipment evolution, as-built conditions, etc., even under a massive Design Configuration Management Program. The numbers of design conflicts in the PAS and furnace lines were tremendous, for various reasons. The 2D CAD design couldn’t detect or be used to de-conflict the electrical, piping , equipment and structural steel ahead of time. The bureaucratic process of initiating individual changes for each small conflict , and negotiating and settling, issuing mods, and going through the Design Configuration management process would have resulted in millions of dollars in impacts and possibly months delays to the critical path schedule. Each day of delay cost $50,000-$75,000 at the time and affected up to 1000 tradespersons and hundreds of contractor and govt staff. To go back to the CPFF designer would have cost hundreds of thousands of dollars. I devised a cost reimbursement (CPFF) CLIN for about $1 million at each site (all under construction at same time with almost identical designs). I had no experience with ID/IQ contracting at the time, but had earlier Air Force Civil Engineering experience with job orders for daily operations, maintenance and repairs (not JOC or SABRE). So, the mod establishing the CPFF CLIN included a “job order” method, complete with forms to describe the problem, document the Contractor’s Rough Order of Magnitude estimate for labor and materials (sometimes equipment), for government technical review and concurrence or adjustment and contractor agreement and for the ACO to authorize the job order. Job orders were issued as design error conflicts were discovered in the PAS and other Process Equipment systems. Each job order would be tracked against the CLIN balance. I don’t remember if we had to bump up the funding for the CPFF CLIN at any site or if we kept all job orders within the $1 million limit. We captured all field routing error corrections, etc. in the as-builts for RCRA, Treaty, design configuration, etc. From my perspective, it was highly successful and saved many millions in impact costs, delay costs, design costs, government site extension costs, etc. So, I guess we idiots put funds on contracts for unspecified, “as needed”, “job orders” and got away with it. Our organization was reknowned within USACE for being able to think and act “outside the box” long before I worked there. Our KO’s and lawyers agreed with it and issued the Mods to implement it. I had learned from three of my employees who were on loan from TVA with nuclear plant construction background that changing a $30 clock in the elevator of a nuclear plant, as an example, cost $10,000- $15,000 in design fees, configuration management processes, documentation, permitting approvals, changes, etc...
  2. Conforming Auto Liability

    Laura, thanks for the clarification. So, apparently, contrary to the USACE contract specialists, your prime contract doesn’t require automobile liability insurance other than what the applicable State off-base insurance requirement might be. However, the terms of your contract with the subcontractor require automobile liability insurance, including those features required by the two contract clauses. I would agree then, that there is no exemption in the subcontract for those special features that are above and beyond off-base automobile liability policies.
  3. Conforming Auto Liability

    Laura, what is the specific applicable contract requirement for type of insurance, as referred to in 52.228-5? Does it specifically mention automobile liability insurance? I can't speak for GSA or for your agency, if you are using a GSA contract vehicle. However, generally, If automobile liability insurance "is required in the schedule or elsewhere in the contract", then no, there would generally be no exemption from requirements for "Additional Insured, Waiver of Subrogation, and 30-day cancellation notice (among other things)" , unless specifically exempted somewhere else in the contract. I doubt that local clauses would negate a general contract clause.
  4. Conforming Auto Liability

    What is the specific applicable contract requirement for insurance?
  5. Fixed Price Level of Effort

    We don’t know what the actual positions are required for or whether only one person can fill the position. Is the effort such that your client can provide a sub to fulfill the requirement ? Without knowing any more specifics, a 1920 hour requirement per year doesn’t look unreasonable to me for a 52 week year at 40 hours per week, less 10 holidays, if subs are allowable in order to provide coverage of a position. Having scanned the original post and all responses so far, I didn’t see where the OP or any of us mentioned asking the government POC to explain what the basis is for the 1920 hour requirement is. It would seem to me that, if the government will require 1920 hours of annual effort and one person wouldn’t be available but 1860 hours, you can’t factor DOWN the hourly rate based upon your annual cost for that person. You would have to make up 60 hours of absences with a substitute. If the government won’t require you to provide or account for 1920 hours of effort and cost to receive the full monthly payment, then I can see how the rate could be factored down. Oh well.
  6. Yes, at least four times and yes, duh. It’s generally a useful, if not an essential element in establishing defective pricing. It can show reliance on the proposed price or cost, timing of the proposal any discussions that may have occurred, etc.
  7. Truth Decay

    Adding two persons to a task being performed by two others often doesn’t result in twice the original output. For that matter, adding the second person to the task doesn’t necessarily result in two times the output of that of one person. Sure, 4 persons is twice as many persons as 2 persons but doesn’t necesssary produce four “output units” based on that of the single person. Could be more, could be less. 😄
  8. There was a recent thread in the forum, which questioned if and why PNM is necessary for purchases under the SImplified Acquisition Threshold, if my memory serves me correctly. It was from a contracting person. At any rate, the question seemed puzzling to me, why a contracting person would ask that. EDIT: See: Upon refreshing my memory, some of the responses amazed me, too. I do agree with those who differentiated between the term “PNM”, where guidance or procedures prescribe a specific format that may not be necessary for every level of price determination/negotiation, and some other means of documentation where applicable. Perhaps the person who “told” the OP that a “PNM” is always necessary could have elaborated.
  9. - The following apply not only to the PNM but to all documentation, such as technical, cost or price analysis, time analysis, scope determination, field pricing support, pre-negotiation objectives, etc. - Provides accountability through a paper trail. Provides basis for justifying the reason for action and results for others.: - provides continuity for future pricing actions (mods, claims, new contracts, etc.), based upon the instant and previous actions. Allows for application of lessons learned. Useful for after action reviews and for self-critique what did we do right, what could be improved, etc.? - Provides a record for others to be able to examine and use. Record is essential in the event that multiple persons are administering or closing out the contract or when successor personnel assume administration of the contract. This should be obvious - but often doesn’t seem to be important or apparent to the person or persons documenting the action. They tend not to realize that documentation must be written for a person who doesn’t have the knowledge or perspective of the author. Witness many of the original posts in this Forum over the years. - Useful to refresh the author’s memory in the normal course of contract administration, especially useful if questions, disagreements or conflicts arise. -Essential for claims/REA/changes/mods/disagreement analysis and resolution. Useful for performance issues. Often necessary for litigation purposes. Etc., etc... EDIt: I agree with everything that Vern said above , as of this point.
  10. Fixed Price Level of Effort

    It would seem that each employee that you provide will cost you an hourly amount based upon a realistic number of annual hours that each person would be available to work. So, even if sharing the 1920 hours between different employees is allowable, you wouldn’t be able to reduce the hourly rate for “bidding” purposes, correct? But how is the monthly billing calculated? Per month or by a certain number of hours?
  11. Clearance vs Approval

    Depends upon the context. To me “clearance” would entail coordinating with various parties before proceeding. “All Clear” in sailing, shooting, crossing the street, etc. means that you check before you act.
  12. Divona, are you asking as the government, with respect to a prime contractor invoice - or as the prime, with respect to a sub invoice? You said that 6 persons were “necessary to meet the SLA requirements”. What is the specific contract or subcontract “requirement” to provide 6 persons? If six persons are contractually required, then they didn’t meet the requirement.
  13. In other words, the question isn’t answerable. There is little or no detail or context provided concerning the subcontract. Simply too vague. Divona, please review your post, then ask yourself if it is clear enough for someone not familiar with the situation you are “describing” to answer your question.
  14. Ha ha! This reminds me of the time back in the early 1980s when our chief of quality assurance asked my resident engineer if it would be OK for one of the contractors to install air conditioning in his government pick up truck. The contractor felt sorry for our chief of QA because he was putting more than 100,000 miles on his government pick up truck every year. None of the Corps of Engineers staff vehicles had air-conditioning in those days, even though all of our projects were in Mississippi and Alabama . George was always grumpy but was even more so during the summer months... I am sure that you can imagine what our resident engineer’s answer was. 😄😄😄 Your answer ought to be obvious.
  15. 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.
  16. 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?
  17. 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?
  18. 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.
  19. 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.
  20. 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!"
  21. 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)
  22. 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?
  23. 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 🤠
  24. 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.
  25. 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.