joel hoffman

Please note that my comments above concerning the "Equity Principle" were only in response to FAR Fetched's post above it. He/she said: "The Corps' message to Martin was "we want you to perform the additional work specified in the modifications, but you are still in default because the completion date (already passed) remains the same. Unreal." I wasn't addressing who is to blame for the actual delay in the instant case. I was addressing a situation where the government believes that a contractor is behind schedule due to its substandard performance and the government changes or adds work during that period. The government should add excusable but non-compensable performance time under the equity principle for the time necessary to perform the additional or changed work, as long as it doesn't further delay completion of the original work. According to the instant decision, the government was apparently responsible for the delays. In that event the delays would be not only excusable but compensable.

Yes, from the perspective of reading the instant case, the government's position case appears to be "unreal". I do want to emphasize that this isn't the USACE's policy as an Army Command. For many years, I taught a principle in classes and in our District's policy that I learned while working for the Middle East Division of USACE in Saudi Arabia. It is called the "Equity Principle". That principle is an exception to the "leave them where you found them" principle if the government directs a change after the contract completion period, while a delinquent contractor is still working to complete the current contract work. The equity principle provides for an excusable, non-compensable time extension for change work directed after the completion date that will be, is being performed or was performed concurrently with other contract work for which the contractor would otherwise be charged liquidated damages due to its own fault. The Equity Principle essentially holds that the government should not take advantage of a firm because they are already late in completing the project. In addition, the contractor is not entitled to a compensable time extension for the concurrent period because it is already expending those type costs in completing the current contract work. If the contractor can show however, that the change increases its direct or indirect costs for the unchanged, incomplete work or if the change requires additional indirect costs, then it would be entitled to an adjustment for those additional costs.

I'm curious why an undefinitized contract action (letter contract) is necessary to award a contract for 2 siteworks and the first building. Please explain what the status of the design is for those features of work and why some other course of contracting action isn't feasible. Thanks. Hey, as a minimum, you could award a fixed price contract for sitework on both sites then follow up with solicitations for the buildings. I'm relatively certain from what you said that the sitework could easily be split out from one or both designs. I could finalize notes on drawings within a day or two to denote the limits of the construction for a sitework only contract. Sitework could include clearing and grading or it could also include site utilities. It's not rocket science to break out such work from an ongoing design.

I thought that the excavation and site work design for the second building was finished. In that event, you could add this portion of the design for the second building - or what portion of the sitework is ready - to the solicitation for the first building, as a separately funded bid item. You would have to consider whether or not this would help expedite the availability of the site for constructing the second building, without slowing down the sitework for the first building. Fast-tracking sitework while the building is still under design can often shorten the overall construction time for a building project. That is a major advantage of fast-tracking on design-build projects. Sitework often takes much time and can push the subsequent building construction into inclement weather conditions (e.g., winter or rainy season). That, in turn, raises costs for cold weather construction. A head start on site work can reduce overall costs. Economy of scale by being able to simultaneously work two close or adjacent sites under the first contract might be achievable - or might not be economical. You can save one mob and demob, as well as the administrative time and expense of starting sitework on two separate contracts. You can also shorten the overall completion time on the second contract. That results in less site overhead. I can't state for certain without knowing the nature of the 2 siteworks or the scope. If combining the 2 sitework efforts under one contract isn't doesn't provide any schedule advantage for the second project or slows down the sitework for the first project, then I'd agree with Vern that going out with a stand-alone sitework contract ahead of the building contract might be a good idea. Depends upon your reasons for expediting the 2nd sitework effort. A separate contract might involve additional fixed, overhead and mob/demob costs, though.

How about a separateLy funded option or CLIN in one contract?

Vern, I started to contact her on January 5th, out of curiosity. However, I don't use the program and am not one who is especially concerned about it one way or the other. I don't know whether or not the test program at 13.5 results in the best deal for both the taxpayer and the customer. I don't know what, if any, concerns that the policy makers and/or Congress had about the program. Once all the detailed posts here with various opinions and degrees of speculation started coming in, I realized that I apparently don't know enough about it to know what to ask her. Those that have a vested interest in the program (or their designated internal POC) should be able to call the POC, however. The folks at DoD are really just people. I've called them and corresponded with them before. I've even asked for and obtained archive background material from old DAR and FAR Cases from them for use in some current USACE policy initiatives. They are usually pretty friendly. If you aren't with DoD, they might refer you to the GSA POC. I've also called GSA points of contact listed in some FAR Cases. Sometimes they politely referred to the DAR Council rep or reps for certain FAR cases or other actions and sometimes directly answered my questions.

Sorry - I was babysitting grandchildren for my daughter yesterday, then got wrapped up with the 2012 BCS Title game for the rest of the day and night. ROLLLLLLLLLL TIDE! In addition to what Vern provided, please see FAR 5.205(d) and applicable supplements thereto: "(d) Architect-engineering services. Contracting officers must publish notices of intent to contract for architect-engineering services as follows: (1) Except when exempted by 5.202, contracting officers must transmit to the GPE a synopsis of each proposed contract action for which the total fee (including phases and options) is expected to exceed $25,000. (2) When the total fee is expected to exceed $15,000 but not exceed $25,000, the contracting officer must comply with 5.101(a)(2). When the proposed contract action is not required to be synopsized under paragraph (d)(1) of this section, the contracting officer must display a notice of the solicitation or a copy of the solicitation in a public place at the contracting office. Other optional publicizing methods are authorized in accordance with 5.101(." For Army Corps of Engineers' A-E Contracting, there is also a publication (Engineering Pamphlet 715-1-4) entitled "Competing for Architect-Engineer Contracts Awarded by the U.S. Army Corps of Engineeers". See page 4 for more discussion of the announcements, although some information may perhaps out of date (2004). http://140.194.76.129/publications/eng-pam...-1-4/entire.pdf

Just curious - has anyone here tried to contact the POC mentioned in the DOD memo and find out what really happened concerning non-renewal? Does Congress have concerns with it that DoD decided not to mess with it? Has anyone called the POC to explain the less than $1 million programming validation problem, which may have skewed the available data? Lots of speculation in this thread. Seems like asking the point of contact might yield some answers for those concerned about the expiration.

Just a question: are there multiple manufacturers and/or suppliers? If so, would a BPA arrangement for competition work? Would that allow you to keep price competition fresh over a three year period? I don't think so. Did you read 12.207( c)? It discusses ID/IQ contracts for commercial items.

"(3) The contractor or subcontractor retains the original records for a minimum of one year after imaging to permit periodic validation of the imaging systems."

Folks, if your agencies are under DoD, I suggest that all of you or someone in your agencies quickly contact the POC identified in Mr. Ginman's memo at: http://www.acq.osd.mil/dpap/policy/policyv...339-11-DPAP.pdf. If you are not under DoD, I also suggest contacting her ASAP to obtain the POC for non-Defense agencies (probably in GSA). The suspense for input to DoD is 27 January. DO something - don't just complain about possible mass mis-coding of acquisition methods.

Well...why not see the answers to both questions in the CURRENT thread at: http://www.wifcon.com/discussion/index.php...amp;#entry11936 See specifically: http://www.acq.osd.mil/dpap/policy/policyv...339-11-DPAP.pdf Edit - Bob has also posted it today on the WIFCON Home page under "Rules and Tools"

RIR, what does the contract REQUIRE the contractor to do with regard to workmanship, supervision, quality control and inspection of its work. And did the contractor comply with the contract requirements? Apparently, poor workmanship and lack of quality control and supervision caused major damage to at least one turbine. Is there any contract requirement for actions that could or would have prevented such damage had the contractor complied with the contract requirements?

Vern, I think Tara is inquiring about hard copies of contract pricing reference manuals. I haven't found that via GOOGLE search but I'm on my BB, so the going was slow.

What kind of "pricing manual" are you referring to? What kind of information are you seeking?

I Love that response...

After some further conversation with j_dude, it appears that the contractor already has the data and that the change would be in the sorting and reporting of the data. Bottom line, the customer needs more (or broader data) of that particular type data for their analysis; it would appear to be within the general scope of the original contract for data acquisition and reporting (transmission) of numerous pieces of data information; the change would be in the reporting (transmission) of data to the customer's computer(s) for one piece of information. I still don't know - but will assume for the purposes of this discussion - that there is probably a minor contractor reprogramming effort required to provide the additional information. No big deal, if that is correct. If I'm not understanding the scope of the requested change, then j_dude's naysayers should be able to explain to him why it is "out-of-scope" and not a simple "change to the scope". Maybe it is semantics. At any rate, this discussion has reinforced in my mind one of the most fundamental aspects of contract administration, particularly when it comes to deciding to modify the contract. One must understand the scope of work as awarded, must be able to grasp the scope as modified, be able to determine what would be involved in technically implementing the change (technical approach) and the impact on the unchanged work if the change is implemented. That should help you to determine if it is within the general scope of the original contract as competed. this may involve preliminary discussions with the contractor as well as the user.

THIS POST WAS EDITED on 12/21/2011: You apparently didn't understand my question "How extensive is the technical effort to implement the change in data sources?". As Vern said below, you haven't shed much light on the actual nature of the change in the data sources or methods that the contractor uses to obtain national or global data, the rough order of magnitude of the additional effort and the relative cost to the contractor or relative value of this information vs. the other 20+ types of information currently in the contract. The "change" appears to me to be in how the data is gathered. It will still be reported the same way as for national data, although maybe in more detail, which may or may not be automated or automatically populated, once the report is formatted and/or programmed. You need to consider whether an extensive effort and/or extensive additional cost to the contractor or resources is necessary to obtain and report global information vs. national data. The mere fact that there is a change in the contract's statement of work (it may be called "the scope of work" in the contract) doesn't mean that it is "out-of-scope". Consider the above factors, read Nash and Cibinic's discussion of in-scope vs. out-of-scope in Administration of Government Contracts and then decide.

Dude, you originally asked if we "consider this change in the contract to be within scope?" You said in a post earlier today that "the prevailling perception in my shop is that any change to the original contract constitutes an out-of-scope change." If the "upgrade" in one of the types of information to "provide global data, as opposed to national data" is "out of scope", it technically isn't an "out-of-scope-change". Then it would be an out-of-scope "modification" that is being added to the contract via a supplemental agreement between the parties, simply for convenience, instead of having to issue a separate contract. According to the Government Contracts Reference Book, Second Edition, published by George Washington University, a "change" is "Any alteration to a contract permitted by a contract clause." It also says that contract changes may be bilateral or unilateral.

How extensive is the technical effort to implement the change in data sources? If very little is involved, then I would ask the naysayers what is the point of issuing a new contract to obtain the information? Do they want you to delete the current information from the instant contract? Keep obtaining it and then obtain global data, too? Try to justify a separate sole source out-of-scope mod?

Brian, I was merely restating the question, not offering a comment. Then I asked the questioner why they didn't just ask the agency that is responsible for implementing these programs . However, since you brought it up, I will submit a personal opinion. The subject solicitation is a small-business set-aside, which means that only a class of small businesses are privileged to propose on and be awarded the contract. Why should a foreign firm with foreign labor be privileged to perform the work - especially during a recession with such high US unemployment? If this is possible, then something is wrong with the program and it should be fixed. We should be fostering US business, US employment and manufacturing with these exclusive set-asides.

Yes, I would say that. For the privilege of prime contract set-asides for a class of small business, those privileged small business contractors must comply with the Limitations on Subcontracting clause, 52.219-14.

So, you are setting aside an acquisition for sole participation by US Small Business prime contractors and at least 50% of the labor effort is intended for employees of that company; one prospective firm is a wholly owned subsidiary of a foreign company which isn't a US small business. And the foreign company will perform the bulk of the work in Germany, isn't that correct? You are asking if this is legit for a small business set-aside... Why don't you just ask the Small Business administration if this is a legitimate arrangement?

George, as a disclaimer, due to time limitations, I reviewed and referred to an old, hard copy of EP 1110-1-8. I didn't look up the latest version on the Internet, which may have changed the methodology. You can (and I will, next week) check to see if the methodology has changed. I'm willing to bet that it hasn't, because the guys who developed the methodology have retired long ago.

George, this is a general question. I don't know what the specific contract you are working on specifies for development or use of ownership and operating rates. This is covered in general in FAR 31.105(d)(2). You mentioned ownership cost so I will dismiss the idea that the equipment in question is rented. No costs are allowed for major repairs on rented equipment (see also FAR 31.105(d)(2)(. They are a responsibility of the rental company, not the lessee and are supposed to be accounted for within the rental rates. For owned equipment, I don't know if you are trying to determine the actual cost for determination of ownership and operating rates (see FAR 31.105(d) (2)), if you are using a predetermined schedule such as the USACE Construction equipment ownership and Operating Expense Schedule (EP 1110-1-8, available by geographical regions and is available on the Internet), if you are trying to develop actual ownership costs and use the schedule for the operating costs, use the schedule for ownership costs and determine operating rates, etc. For owned equipment, when using the USACE Schedules, the cost of repairs and major overhauls are included in the operating rate - not in the ownership cost. The methodology is explained in the Engineer Pamphlet. If you are trying to Develop actual ownership and/or operating rates, or even more importantly if you are mixing and matching schedule and actual costs, it is critical to know what is considered in the two rate calculations. Please also note that the contractors other indirect and direct costs will have to be examined carefully when using the schedules, because costs such as supporting repair facilities such as field and main office repair shops complete with parts and supplies inventories and shop overhead are included in the USACE hourly rates. Contractors often include some of these costs in their G&A or other overhead accounts or in their field overhead pool accounts. Those costs must be treated as direct costs in the hourly operating rates and be removed from the other direct and indirect cost pools. Another example is the mechanics' labor and the cost of service trucks and other equipment used during repair, fueling and maintenance. Those are also included in the USACE hourly operating cost rates and should not be separately charged. When the use of the USACE manual was specified or just used in a contract for pricing ownership and operating rates, I always asked for and examined the costs that the contractor included in their G&A and other overhead rates, because some that are included in the hourly rates usually are included in contractors' usual overhead pools. So I adjust the rates or have our in-house DCAA laison folks help adjust rates used in mods or for cost contract reimbursement. When we used DCAA for audits, I usually provided them with a guide that I developed years ago, because they generally weren't trained in the methodology used in developing the USACE ownership and operating rates. Note that the pre-determined operating rates include some costs that aren't allowed for rented equipment (like major repairs), so when equipment is rented, those book hourly operating rates must also be adjusted. Government price analysts and estimators must also be trained on the rates makeup when the USACE guide is used. I'm going deer hunting today and wont have access on my Blackberry to this forum. But if you need or want to discuss in more depth, you can call me or email me with your phone number next week.