joel hoffman

Cardinal, do you know where the contract provides the authority to issue a new wage decision? Do you think that perhaps the contractor might be interested in knowing where the authority is after receiving a unilateral mod incorporating a new wage decision? How about a third party reviewing the contract or the mod? How about someone having to do a forensic analysis of a contract for some reason? I was taught years ago (before FAR) not to write a mod without being able to cite the applicable authorities for issuing it; not to write a letter to the Contractor without citing the applicable contract terms and conditions. Like I mentioned in another, recent thread - it isn't rocket science.

Well, I'm interesting in knowing what authority is in the contract at hand to modify the wage decision. It doesnt appear to be in 52.217-9. Does jjpaci know?

Are you saying that you have a contract for commercial services with an option period? Are you saying that 52.222-43, Fair Labor Standards Act and Service Contract Act—Price Adjustment (Multiple Year and Option Contracts) is referenced in Clause 52.212-5? Why do you think that 52.217-9 provides the authority to issue a revised wage decision? Where is that mentioned in the clause?

I dont necessarily agree that requiring the PM to be "full time" makes economical sense, Would you expect the PM to be charged directly to the Labor Hour portion of the contract ? Would he/she be charged full time to various individual task orders? Does the workload warrant a full time PM? Will the PM work from the home office (another warning flag) or at the site? Moving a person out of an overhead pool to a direct cost should also require corresponding overhead rate adjustment, which isnt that easy or practical within the company. I would think seriously about whether dictating a full time, direct charged position vs. requiring performance as necessary to successfulloy manage the project before demanding such an action. As mentioned above, an alternative is for the proposer to describe how they intend to fulfill the PM role to your satisfaction.

Are you saying that the cost of the PM is charged 100% to overhead but is proposed to be assigned 100% of the time to your "effort"? If that is not what you mean, then please clarify:

Krusem, would you please clarify whether the essence of your question relates to whether the KO has the authority to modify the construction contract to grant a time extension under the Defaults clause - or are you simply wondering what to cite as the authority for the Mod in Block 13? I'm trying to explain that YES, the KO can use the Defaults clause to grant a time extension for delays to the critical path of completion caused by weather conditions beyond that which would be reasonably expected. Construction contractors generally want to maximize and welcome such time extensions when facing liquidated damages for late completion that they can't escape by otherwise justifying excusable delay(s). However, contractors don't like the fact that excusable weather delays are generally noncompensable or that if an excusable but noncompensable delay occurs concurrently with an otherwise excusable AND compensable delay, there will be no additional cost recovery during such concurrent delays. In other words, they often want their cake and to eat it too. So, they may pooh pooh the delay effects of the weather and try to blame all or most of the performance delays solely on a compensable type reason. Or they may argue that, but for other Government caused delays, they would not have been affected by the unusually severe weather. Sometimes the latter situation is a valid approach. The Taxpayers would often be best served where the Government issues a unilateral mod for excusable but noncompensable delays or for the portion of the delays that the parties cant agree are excusable but noncompensable - assuming that the Government's position is sound and defensible. The Defaults clause provides the authority in the contract to issue either a bilateral supplemental agreement or a unilateral mod. If the delay is concurrent with a delay caused by a change or differing site condition, for example, one or more of those clauses might also be associated with the time extension. Plus, there may also be other, locally developed risk allocation clauses that might cover the issue. One way or another, it will be necessary modify the contract to reflect a change in the contract duration. The duration and/or completion period is generally stated in contract clause 52.211-10 -- Commencement, Prosecution, and Completion of Work and in Block 11 of the contract, SF 1442. It might ? also be described somewhere else in the contract. Simply cite the applicable clauses in Block 13 of the SF 30 that justify the time extension. Block 14 is used to describe the tbasis of the time extension and to reflect all changes to the contract terms. It really isn't Rocket Science. - in my opinion. During my days as field office engineer, Resident Engineer then in later assignments at District and Division level in contract administration performing modification oversight and construction claim resolution, I saw all sorts of these situations. Our policy was to keep up with actual weather and its effects on the schedule on a monthly basis and to try to modify the contract to reflect such delays at least quarterly, if at all possible. I either negotiated or reviewed virtually hundreds of these types of mods over the past 33 years. Yes, some turned to claims. There are books inches thick with case law concerning litigation over delays and time extensions. Unfortunately, I left the ones I had with yearly supplements for my successors when I retired from full time Government service.

Krusem, is your question whether the Defaults clause 52.249-10 authorizes the KO to issue a modification to extend the period of performance - in this case - due to unusually severe weather. Or are you asking what to cite in Block 13 of the modification as the authority? Or are you asking both questions?i was under the impression that the essence of your question concerned the former. In my experience, the answer to the second question should logically follw the answer to the first question. The contract clause defines the (time) risk allocation between the parties for excusable performance delays due to various although not all inclusive causes. Thus, the Defaults clause provides for an excusable time extension, but no additional money, for performance delays due to unusually severe weather.

Notwithstanding the debate concerning Block 13 in the modification form itself, the real question here concerned what authority there is, if any, for the Government to extend a construction contract due to unusually severe weather. The Defaults clause (for Fixed-Price construction contracts) establishes risk sharing terms between the parties due to various causes, among them the cost and time risks due to unusually severe weather affecting the critical path of the project. The clause provides for a time extension but no additional money. The Contractor may get more time, which the customer never likes, but assumes the risk of any associated cost increase. Another interesting risk sharing aspect of this clause relates to Government directed or constructive suspensions of work for unreasonable periods of time. The Suspension of Work clause provides for a contract price adjustment but it doesn't authorize additional profit or a time extension. The Defaults Clause does provide for a time extension associated with the Government act or inaction causing an "unreasonable delay" to the work. So, it IS important to understand the clauses that have established risk sharing for both cost and time between the parties! The SF 30 should cite the applicable risk sharing clauses used to authorize price and/or time adjustments.

In answer to the question at hand, of course a Contracting Officer is given the authority to extend the period of performance for a construction contract by FAR 52.249-10. I wrote my first weather time extension mod in 1981 (for the KO to sign) under the predecessor to the FAR clause.

Why the debate? The USACE has been granting no cost time extensions for delays to critical path work "due to unusually severe weather" since at least 1980, when I began working with them. The Defaults clause at 52.249-10 is the authority for the time extension. There is no need to reinvent the wheel. There is guidance for USACE contracts in Engineer Regulation ER 415-1-15,CONSTRUCTION TIME EXTENSIONSFOR WEATHER. It can be found at http://publications.usace.army.mil/publications/eng-regs/ER_415-1-15/ER_415-1-15.pdf Such no cost time extensions have been provided for on thousands of construction contracts over the years. The Corps uses special contract requirements to try to define to a certain extent what delays would be expected due to "normal" weather. The methodology is far from perfect but is a tool.

Keith, you and your lawyers need to determine which laws DO apply to your NAFI.

Likewise, see AR 215-4 Non-Appropriated FundnContracting for Army NAF Instrumentalities at http://www.apd.army.mil/jw2/xmldemo/r215_4/main.asp#appa NAFI contracting, at least in DoD is not subject to FAR, although certain Federal laws do apply, as noted in the AR. The NAF folks are very sensitive about USACE contracting officers trying to use the FAR to contract for the Army NAF...

Vern, one of those references I provided cited FAR 32.701-3 for prohibition on incremental funding of a non-severable contract for services, but my 2011 hard copy FAR said it is "reserved". I think that the date on the document was 2012. I have to go to a meeting, so don't have time to provide more detail now.

In reading VOL II of the Redbook, Chapters 6 and 7, as well as a GOOGLE search for incrementally funded contracts, it appears that non-severable contracts for services must be fully funded but that severable contracts for services may be incrementally funded. I also found policy preferences to fully fund severable services when the funds are available at the beginning of the period of performance in the contracts. However, I dont profess to be qualified in this area so won't cite the specific sources. Plus, I couldnt copy the verbiage from the pdf pages. I looked in Redbook, HHS Acquisition Policy Memorandum (http://www.hhs.gov/asfr/ogapa/acquisition/funding-of-contracts-exceeding-one-year-06282010.pdf ) and NASA documents (http://www.nasa.gov/pdf/706737main_Acquisition_Funding_w_o_citations_101512_posting_no_NFS_chgs%5B1%5D.pdf) for example. At any rate, I did not see a prohibition on incrementally funded several services contracts in VOL II, Chapters 6, 7 or 8. Not to say it isnt there...

wvanpup, did you see where Vern, also said: "While it is possible to incrementally fund an FFP contract, policy generally prohibits it, with certain exceptions. That's because incremental funding creates budget management problems." Now read DFARS 232.703-1 (1) again, with emphasis on "...only if -". That seems to confirm that there are "certain exceptions" for DoD. Also read both (i) and (ii) under 232.703-1 (1). Whereupon, the cited AFI appears to restrict Air Force application of the broader DFARS 232.703-1 (1) exceptions when its says "The total cost of the services to be provided over the 12- month period must be reflected in the contract and that amount must be obligated when the contract is signed."

Leslie, what is the current period of performance for the FY13 funded CLIN?

But - for the instant situation, it appears that 1) you did not have previously evaluated competitive pricing for the option years and 2) you have some flexibilty in obtaining services for the next period because the scope of one year's services is apparently within the simplified acquisition threshold. Thus, can't you use part 13 streamlined methods to effectively "reinstate" this contractor for one year, using a new contract? Yes, you would still have to compete follow on years. As for "an administrative error", it would seem to me that somebody didn't do their job. I just dont have the same background or perspective to accept that nobody is responsible to track or administer a contract or should know that the performance period is up or soon to be up. Responsbility should include accountability and associated consequences.

Wow! I'm fortunate to have an excellent IT organization, I guess. Your guys are still the ones who should find answers to those questions. That would seem to fall into their lane as far as responsibility for defining the scope and limits of the contract to meet the organization's requirements. As to your second point, hopefully someone can help there.

Yes - each change stands on its own. Also - you aren't renegotiating the "profit" on the unchanged work. If an equitable adjustment (which considers profit) is involved in a contract price adjustment, then, generally, the government may take a reasonable credit for profit on deleted work and the contractor may add a reasonable profit for new or revised work. The amount of profit (e.g., percentage) in such situations isn't necessarily the same as was originally bid. It may be higher or lower. What is "reasonable" is negotiable but there are guidelines that have been upheld in legal proceedings. There are some wrinkles and exceptions but that is the general jist. There is a good discussion of this in the books "Administration of Government Contracts" or in "Government Contract Changes" by Nash and Cibinic or by Nash and whomever is the latest collaberator since Prof. Cibinic's passing a few years ago.

Rios, have you discussed these questions with your IT requirements people, including the CIO? It seems that they should be familiar with the topic. As for allowability of the .protection plan, some types of insurance are acceptable. However, I'm not an expert on the cost principle at FAR 31.205-19 -- Insurance and Indemnification.

Shikakenin, from past experience that's the only time you will get the last word in with Vern. :D

If you are asking if there is to be a price preference for US firms, I don't know of any provision for that. There could be some country to country agreement that would allow that. If you are hinting at a price preference for native firms of the country where the work will be perfromed, that might be subject to any terms of host country agreements or similar for foreign sales funded by the host country., otherwise generally, no.

That would have been nice to know up front.

If the buyer is in the EU, the sale is in the EU. It would seem that the buy would have to be made in the US, then shipped to the installation overseas.

It would be helpful to know the actual, specific requirement and also to know what the CE Label is. Do do have any website cites that would answer those questions? Thanks. If you are in US acquisition system, do you have access to the applicable SOFA or are you with industry, trying to sell the product to the US Military?