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joel hoffman

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Everything posted by joel hoffman

  1. Maybe the robots will make their humans “pets” someday.
  2. 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.
  3. You don’t necessarily need a payment bond.
  4. 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?
  5. 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.
  6. Waiver of First Article Approval

  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. "Gray Market" Items

    Will the manufacturers warranty the gray market items?
  12. 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)
  13. Multiple CORs

    I am not aware of any prohibition in the FAR on appointment of more than one COR with separate duties. For DOD, the PGI at 201.602-2 (d)(v)(A) says that the KO “should consider” the appointment of multiple CORs for certain contracts. I don’t know if the Corps of Engineers still does this but in the Districts that I was assigned to, it was common practice in the 1990’s and 2000’s to appoint more than one COR on a construction contract. The separate COR’s were always designated separate, limited and distinct duties, not overlapping with each other. That might no longer be the practice in that agency. Edit: I will add that the above practice of appointing more than one COR was prevalent prior to the development of the current, integrated contract administration software systems.
  14. DANGER, WILL ROBINSON! Oral agreements that are unclear in their intent or meaning will lead to problems later. First, seek clarification and then get the clear terms of the agreement in writing. Nobody here can answer that question for you based upon the information you provided.
  15. Invoicing for unworked hours under a FFP TO

    It seems pointless to continue to speculate until we find out more information concerning the services which were billed for and not provided. Did the contractor bill the government for ??? that was specifically required but not provided? If so, it appears that you are asking if the government can recoup the money paid.
  16. Default Clause to extend Period of Performance

    Agree with Vern! Purchase the two books, with your own money, if necessary. In my case, it resulted in millions of dollars of savings, over over 30 years, to the US Taxpayers (as well as the Saudis in the 80’s). It also resulted in fair treatment of contractors and resolution of numerous disputes, claims and initial disagreements.
  17. Default Clause to extend Period of Performance

    Construction CO, were the DBO and the IG describing the applicable clause or clause in reference to your example of the redesign of the fire suppression system? I could see where the applicable clause for a time extension due to delays to the critical path of the schedule between the time of the discovery of the beams above the ceiling and the time it took to redesign and issue a change to construct the revised design would be under the defaults clause and associated delay costs (but no profit) would be paid as a constructive or ordered partial suspension of work. I’d have to do some research to see whether that also applies to delays for redesign time due to a differing site condition. But I won’t spend the time searching my files and CAB resources if that isn’t the context of their opinion. I used to subscribe to “Construction Claims Monthly” and to various textbooks on construction delays and yearly updates but didn’t retain them all when I retired from full-time contract admin, mods, claims, and source selection. I will say that I read some case law or Nash and Cibinic, etc. on how to handle situations where the contractor is delayed waiting for the government to issue a revised design. Any additional time and equitable adjustment for difference in costs to construct the revised design versus the time and cost to construct the original design would be covered under the Changes or Differing Site Conditions clause(s).
  18. Default Clause to extend Period of Performance

    The IG is wrong if they say that all time extensions are issued under the defaults clause. Who are these people anyway? What is their background and their experience level? I dont have have time this afternoon to go into detail about your example
  19. Default Clause to extend Period of Performance

    Paragraph (b) of the clause provides for a time extension for various enumerated excusable delays. It doesn’t address monetary relief for such excusable delays. For the time extension to be compensable would generally require coverage under another clause. For instance, the Suspension of Work clause authorizes a cost adjustment for a government delay of unreasonable length (assuming that the delay cost isn’t otherwise concurrent with an unexcused contractor delay). However, it doesn’t authorize a time extension. The Defaults clause is used to provide the associated time extension. Thus, both clauses are cited in the mod providing a cost adjustment and a time extension due to a government ordered or constructive delay to the completion period.
  20. Blanket Task Order

    Some Corps of Engineers Districts were doing something similar a few years ago.
  21. On-Site Contractor Supervision

    I would agree with above but what do you mean by “supervision”? Is there a need for what you refer to as “supervision”?
  22. FFP Contract Maximum Increase?

    Not only strange but possibly improper use of a government contract to extend the pricing and/or availability of the supplies to some future period of funding? Don't know if the definition of "money laundering" would fit. However, it would seem that somebody should examine the appropriations law aspects of the arrangement and perhaps the contract cost principles and procedures, especially if contractor 2 is marking up contractor 1 costs and/or adding finance costs to its prices. Also - what if contract 2 is not used to buy all of the inventory purchased under a government contract 1? It would seem that contractor 2 is free to directly sell products purchased under a government contract as a result of government's negotiated pricing and delivery terms, to the public, essentially as a commercial distributor.
  23. If you are looking to subcontract, and the prime Isn’t willing to negotiate, you can either accept or reject it. I don’t know what you mean by the term “recourse”, here. We don’t know whether there are any DOL minimums associated with the position or if the prime’s offer would cause you to violate any such minimum with respect to your ability to have any leverage in negotiating a higher rate.
  24. Staying in vs leaving

    MV, what type of industry day events are you referring to? For individual actions or for presentations of programs?