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Everything posted by joel hoffman
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Payment for Pre-Construction Submittals
joel hoffman replied to Velhammer's topic in Contract Administration
To clarify my earlier statement, we pay for "estimates of work accomplished, which meets the standards of quality established under the contract." We may also authorize pay "...for material delivered on the site and preparatory work done to be taken into consideration." In our agency, "work accomplished" generally means the physical work, which can also include fabrication of assemblies, even though they aren't "in place". Examples are piping assemblies, electrical panels, mass electrical conduit assemblies, framing assemblies, truss fabrication, bridge fabrication, etc. See also 10 USC 2307, below. Paperwork, procurement activities and inspection of the work are NOT considered, in our agency, to be "work accomplished, which meets the standards of quality established under the contract." Such costs are indirect costs that should be spread over the physical work activities. See below, but if you are referring to "prepatory work", preparatory work includes such items as cost of erection of batch plants, construction of haul roads, erecting fences, shops, etc. (less acquisition costs of equipment and materials not to be incorporated into the work, or mobilization costs." For the Corps of Engineers, "Work" doesnt generally include admin, procurement activities, shop drawing preparation and submission, etc. I don't know what it means to NAVFAC. That's why I advised to check with NAVFAC for their interpretation, because their guide spec is somewhat unclear to me. For USACE Design_Build contracts, design deliverables ARE payable under the design CLIN's. These are generally designs, though - not construction and extension of design submittals. I believe that it is the same for NAVFAC - but they may pay for extensions to design construction type submittals. The NAVFAC template for D-B contracts is unique to NAVFAC. Clause 52.232-5 -- Payments Under Fixed-Price Construction Contracts (2002) "...( Progress payments. The Government shall make progress payments monthly as the work proceeds, or at more frequent intervals as determined by the Contracting Officer, on estimates of work accomplished which meets the standards of quality established under the contract, as approved by the Contracting Officer. ...(2) In the preparation of estimates, the Contracting Officer may authorize material delivered on the site and preparatory work done to be taken into consideration. Material delivered to the Contractor at locations other than the site also may be taken into consideration if -- (i) Consideration is specifically authorized by this contract [Joel's Note: this will be specifically identified in the contract]; and (ii) The Contractor furnishes satisfactory evidence that it has acquired title to such material and that the material will be used to perform this contract. ...(g) Reimbursement for bond premiums. In making these progress payments, the Government shall, upon request, reimburse the Contractor for the amount of premiums paid for performance and payment bonds (including coinsurance and reinsurance agreements, when applicable) after the Contractor has furnished evidence of full payment to the surety. The retainage provisions in paragraph (e) of this clause shall not apply to that portion of progress payments attributable to bond premiums." Statutory authority for progress payments applicable to Military construction is found at 10 USC 2307 : "(e) Conditions for Progress Payments.— (1) The Secretary of Defense shall ensure that any payment for work in progress (including materials, labor, and other items) under a defense contract that provides for such payments is commensurate with the work accomplished that meets standards established under the contract. The contractor shall provide such information and evidence as the Secretary of Defense determines necessary to permit the Secretary to carry out the preceding sentence. " DFARS 252.236-7003 Payment for Mobilization and Preparatory Work will specifically authorize payment for and describes "Prepatory Work". As prescribed in 236.570((2), use the following clause: PAYMENT FOR MOBILIZATION AND PREPARATORY WORK (JAN 1997) (a) The Government will make payment to the Contractor under the procedures in this clause for mobilization and preparatory work under item no. ____________________. ( Payments will be made for actual payments by the Contractor on work preparatory to commencing actual work on the construction items for which payment is provided under the terms of this contract, as follows— (1) For construction plant and equipment exceeding $25,000 in value per unit (as appraised by the Contracting Officer at the work site) acquired for the execution of the work; (2) Transportation of all plant and equipment to the site; (3) Material purchased for the prosecution of the contract, but not to be incorporated in the work; (4) Construction of access roads or railroads, camps, trailer courts, mess halls, dormitories or living quarters, field headquarters facilities, and construction yards; (5) Personal services; and (6) Hire of plant. This is implementing policy from a contract administration manual (Plan) for the Chemical Demilitarization Program at http://www.hnd.usace.army.mil/chemde/cap/Chap8.pdf Although the policy refers to an earlier version of the Payments Clause, the applicable wording in the 2 versions is essentially the same. I think the clause was updated to add coverage of Prompt Payment Act procedures. "8.5 Payment for Preparatory Work and Mobilization. Contract Clause, Payments Under Fixed-Price Construction Contracts (Apr 1989), states, in part: "In the preparation of estimates the Contracting Officer may authorize . . . preparatory work done to be taken into consideration." Preparatory work includes such items as cost of erection of batch plants, construction of haul roads, erecting fences, shops, etc. (less acquisition costs of equipment and materials not to be incorporated into the work, or mobilization costs. 8.6 Payment for Materials Delivered at Work Site. The same clause also permits payment to contractors for material delivered at the site, but not yet incorporated in the work. The clause gives the Contracting Officer wide latitude in determining whether or not to pay for material stored on the site and to determine what supporting documentation will be required. These determinations should be based on contract specific considerations such as job-site security conditions, the contractor's past record of paying subcontractors and suppliers, the value of the material and storage. The equirement for the contractor to acquire title is not mandatory, however, it may be appropriate to require the contractor to furnish a paid invoice as evidence of title. If conditions warrant payment for materials stored on site and adequate documentation to protect the Government's interest is otherwise furnished, then prepaid invoices should not be required. In each case, the duty to protect the overnment's interest must be balanced against the obligation to provide the contractor with timely payment. The sums so included in payment estimates will be subject to withholding of appropriate percentage, if applicable. 8.7 Payment for Materials Delivered Offsite. The contract provides that materials delivered to the contractor at locations other than the site of the work will be considered in making payments, if all the conditions of the payments under Fixed-Price Construction Contracts Clause are fulfilled. Payments for items delivered to locations other than the work site will be limited to those materials which have been fabricated to the point where they are identifiable to an item of work required under the contract. Make such payment only after the contractor furnishes satisfactory evidence that he has acquired title to such material and that the material will be used to perform the specific contract. Satisfactory evidence should be in the form of receipts of paid invoices with canceled check. 8.8 Performance and Payment Bond. "a. Subparagraph (g) of the current Payments Under Fixed-Price Construction Contracts Clause in construction contracts provides as follows: (g) In making these progress payments, the Government shall, upon request, reimburse the contractor for the amount of premiums paid for performance and payment bonds (including coinsurance and reinsurance agreements, when applicable) after the contractor has furnished evidence of full payment to the surety. The retainage provisions in paragraph (e) of this clause shall not apply to that portion of progress payments attributable to bond premiums." b. In implementing this clause, use the following procedures: (1) The contractor must request in writing that he be reimbursed for bond premiums, inclosing a letter from the Surety stating the amount of the premium paid. Evidence of full payment to the Surety will also be submitted with the contractor's request, i.e., a paid invoice with canceled check, or a certified statement from the Surety. After the Resident Engineer has ascertained that the request for reimbursement of the bond premium is in order, include payment as an added item to ENG Form 93. Forward all original documents relative to the reimbursement with the payment estimate request. Reduce the item entry for bond premium monthly in proportion to earnings in the bid schedule until final payment under the contract. (2) Reimbursement for bond premiums will be limited to those bonds of the prime contractor. Do not reimburse subcontractors or suppliers for bonds." -
Payment for Pre-Construction Submittals
joel hoffman replied to Velhammer's topic in Contract Administration
Now, having said all that, the Spec you quoted appears to be a NAVFAC prepared simplified version of a progress schedule guide spec, which has also apparently been tailored for a design-build contract. It has some quirks in it, which might deviate from the concepts that I described above. I asked you a day and a half ago if it was a NAVFAC version. You didn't respond. I should have simply advised you to check with the proponent agency for your guide Spec I researched the Whole Building Design Guide and found a similar NAVFAC Guide Spec for design-bid-build (SECTION 01 32 17.00 20 NETWORK ANALYSIS SCHEDULES (NAS) 08/10). I believe that the ..20" designation means that it written is for NAVFAC use. The designation "01 32 17.05 20" in your example may mean that it is a NAVFAC, design-build tailored version. You didn't explain where it came from. The cost loading portion of the NAVFAC Unified Facility Guide Specification at the Whole Building Design Guide website (Construction Criteria Base - UFGS) says: "1.6.2.5 Cost Loading Cost Loading Activities: Material and Equipment Costs for which payment will be requested in advance of installation shall be assigned to their respective procurement activity (i.e., the material/equipment on-site activity). All other construction costs shall be assigned to their respective Construction Activities. The value of inspection/testing activities will not be less than 10 percent of the total costs for Procurement and Construction Activities. Evenly disperse overhead and profit to each activity over the duration of the project." NAVFAC may allow a separate cost loaded "procurement activity" - I don't know. I suggest asking their Headquarters activity in D.C. or whoever the proponent is for your spec what it means. I was taught not to cost load administrative and management activities and that we (Army Corps of Engineers) make progress payments only for in-place construction and materials. We tell contractors to spread the management and admin costs over the actual construction activities. Having been at the District oversight level for many years, I've seen scads of contractor defaults. I can tell you that a bonding company taking over a defaulted job is very interested when we've shown progress and made payment for paperwork activities that isnt reflected on the ground when they have to come in and complete the project with remaining funds. I've also seen tours by Generals and other VIP tours where the on-site activities don't square with the reported progress in the briefing - It is very embarasing when the Chief of Staff asks why we've paid 40% with barely anything to show on the ground! Often, submittals and other procurement activities aren't transferrable or usable by the completing entity. -
Payment for Pre-Construction Submittals
joel hoffman replied to Velhammer's topic in Contract Administration
After having read this Progress schedule guide spec in the day time, it is more coherent to me. Ok, you ask why we require submittals and procurement efforts to be included as activities. The reason is that they are activities associated with the procurement of material and equipment that require specific actions on the part of the contractor and often the owner before the M&E can be acquired and installed. Such an activity is a constraint upon installation that we want to make sure is included in network schedules so that it can be managed, statused and observed. The schedule shows he interactions between activities, constraints, lags and lead times necessary. Let's use the example of a transformer, which often has a long lead time ("long lead item") to be ordered months before it has to be installed. It provides for installation of the transformer to be scheduled in phases - submit the transformer, govt reviews, order the transformer - do other activities while waiting for the transformer - transformer delivery - install the transformer. Makes a lot more sense than just showing one activity "called transformer". We include the trade labor resources in the associated installatioin activitiy so that the contractor knows when the labor resources are actually needed and how many. The scheduling program will allow the managers to see how much total labor is required on the jobsite and what trades are involved on-site at the same time. One can then manage the overall construction process and plan work. Ok, now let's look at cost loading. The Payments clause says we make progress payments for work in place and for materials on-site (and maybe for off-site materials or fabrication- let's not get bogged down here with details). The procurement, overhead, management costs and other markups are to be included in the associated material installation activities and/or spread over the actual installation activities, not the administrative and procurement activities. The guide spec you quoted appears to be one for design-build, so it also mentions design activities, which can be paid for. Does my explanation make sense as to why a detailed progress schedule has more than one purpose? One is to detail the sub-activities, if I can call them such for this discussion, associated with a larger activity, that are necessary to manage the overall project within the contract duration. Everyone can tell when these activities are needed, how long they take, and their interrelationship with other activities. One can estimate, schedule and manage labor and equipment resources for the actual installation process. One can tell how many electricians are needed overall and at any one time, whether that many are available and if that many will fit in the building or on the jobsite at any one time. The schedule separately allows management of he value of the contract, cash flow and measurement of progress against the total value or price/cost of the contract. Contractor can estimate when it will get paid and an owner can see when the money is scheduled for outflow. Bottom line - we don't pay for admin and procurement activities under those activities. Those indirect costs are spread over the actual installation activities. -
Payment for Pre-Construction Submittals
joel hoffman replied to Velhammer's topic in Contract Administration
Is this a NAVFAC contract specification? -
Change Proposal
joel hoffman replied to govtacct02's topic in Contract Pricing Including CAS & Allowable Costs
I am assuming for this further answer that that the mod was issued to implement the technical change, stating that the equitable adjustment would be issued later. I dont know if that is accurate from what you said. At any rate, I'd estimate what it would have cost to perform the original work, based upon the best info available at the time that the work would have been done ($a). I'd try to determine what the changed work cost to perform, if possible, If not possible, use the best info possible to estimate the cost of the new/changed work when it was or will be done ($. Further assumption - there was no agreement on the adjustment at the time. -
Change Proposal
joel hoffman replied to govtacct02's topic in Contract Pricing Including CAS & Allowable Costs
I am assuming that the absolute value of the modification exceeds the contract's threshold for submission of cost or pricing data and no exception applies. The cost or pricing data used for deleted work is based upon the current estimate of what the deleted work would have cost. It isnt necessarily based upon the original, certified C&P data. Lots of stuff usually happens after the C&P data was certified, like revised sub quotes, a better understanding of the work, etc. Does that answer your question? Qualification - the above answers are based upon "glittering generalities". There are all sorts of specific circumstances which deviate from the general rules. Recommend buying the Nash and Cibinic Books on "Government Contract Changes" or "Administration of Government Contracts" -
Change Proposal
joel hoffman replied to govtacct02's topic in Contract Pricing Including CAS & Allowable Costs
(edited) I assume that the "mod" for the work isnt done yet. The revised work may or may not be completed. I believe that the Table refers to cost estimates which are "current" as of the time that the deleted work would have been done, as opposed to the originally estimated cost used to price the contract. Compare the estimated cost of the work not performed with the most current estimate of what the future new work will cost and/or the actual cost for that portion of the new work that is already performed, to the extent that actuals are determinable. The requirement is necessary to measure the effect of "any such change [causing] an increase or decrease in the estimated cost of, or the time required for, performance of any part of the work ...", per the Changes clause at 52.243-2. So one generally compares an estimate of what it would have cost to perform the original work with the estimated or actual cost to perform the work as changed to determine the adjustment. Actual costs tend to be preferrable basis for the changed work, unless there is evidence that they are really unreasonable. The price included in the contract for the original work, if not completely segregable, is not necessarily the basis for the estimate of the deleted work. As an aside, another note - once we have selected a contractor, we are stuck with each other. Just because the contractor doesnt have the latest, most efficient techniques or equipment, we cant necessarily say that its approach or productivity was "unreasonable". An example, Our estimator assumes the most efficient equipment would be used, which the contractor doesnt own or have on the job. It is more appropriate to recognize and use what is available for the basis of reasonableness. -
I agree with both of the other gentlemen. But I would add that if it is possible to explore alternatives, take some proactive management action.If you have determined or believe that the contractor's actions were unreasonable or the higher costs are unreasonable (read FAR 31.103 and 31.2) or if you just want to better manage costs, what alternatives are there to get the estimated costs back within the contract budget? If there are viable alternatives available or if you want to know if there are any, it would behoove you to immediately discuss the matter with the contractor before it is too late to mitigate. At first glance, I wouldnt think that there is much, if any benefit on a cost reimbursable fixed fee contract for the prime contractor to bid shop, or otherwize squeeze the original sub for a lower price that results in the sub refusing to perform or sign the subcontract. Such actions are often considered unethical, but it wouldnt increase the prime's fee, nor will having to get a higherr priced replacement subcontractor increase its fee. So, without the benefit of the full story, it would seem that the prime had no motivation to do such a thing. It is not uncommon for subcontractors to back out or otherwise fail to come through. If there is no alternate that will keep the estimated costs within budget, I believe that Vern described your likely options.
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Expired Funds Not Available (O&M Renovation)
joel hoffman replied to jmsmith's topic in Contract Administration
Duplicate -
Expired Funds Not Available (O&M Renovation)
joel hoffman replied to jmsmith's topic in Contract Administration
Jm, actually the ACO, allowed the contractor to proceed at its own risk on the work, after sending the mod package up from Panama, because it exceeded his authority. The lawyer caught the funding problem during legal review. The PCO, the Chief of Construction and the District Engineer all were going to officially crucify the ACO for allowing work to proceed without a mod, especially one that had no proper funding. However, I reminded all of them that they never directed the contractor to stop, even a month after they knew about the funding and the situation. Since they were as "dirty" as the ACO, they dropped the action but directed the Contractor to stop the mod work. The customer went back and got the correct funds. Turns out this wasn't an isolated instance, so we had to find the other mods and go back and switch funds. The KO can't knowingly issue an incorrectly funded mod. It was our contract, so the KO was legally responsible to ensure that the correct appropriation is used. From that point on, the user had to provide original year funds or provide evidence from Department of the Army that there no more original year funds. -
Expired Funds Not Available (O&M Renovation)
joel hoffman replied to jmsmith's topic in Contract Administration
I don't know and honestly don't want to look it up, because it might be used to conveniently violate the appropriations rules. I found that the "local"customer either didn't know or didn't bother to pursue finding the expired funds at higher levels within the Army. I don't know who in your user's organization is responsible for funding modifications, but their finance and accounting office should know the information that Vern quoted as well as the answer to your question. And I don't accept the excuse that nobody in an F&A office knows the rules. That is a sign of incompetency in government. -
Expired Funds Not Available (O&M Renovation)
joel hoffman replied to jmsmith's topic in Contract Administration
From my own experience with "local agencies" (Army O&M) , I don't believe that they aren't available in your case. They likely haven't gone up the chain to the ultimate expired account authorities. -
Stuck with 1449 for Commercial Service Source Selection?
joel hoffman replied to JTSurfah's topic in Contract Award Process
Vern, you're in great form, today. I agree with you -
Prime vs Sub Percentages Question
joel hoffman replied to obinnae's topic in Small Business, Socioeconomic Programs
Thanks for the correction, Don. When i read through 52.219-27, this morning I completely overlooked the difference in wording between it and the -14, Limitations on Subcontracting clause. It appears that the requirements in the -27 clause differ from the other set-aside contract categories, in that it allows other, SDVOSB firms to fulfill the minimum percentage of "self-performed work" requirements. So I suppose that there isnt really a "self-performed" work requirement in such a set-aside. -
Prime vs Sub Percentages Question
joel hoffman replied to obinnae's topic in Small Business, Socioeconomic Programs
First you were an 8(a) firm, now an SDVOSB firm. My feeling is that you have wasted several people's time playing musical contracting guessing games. My advice is this - ask the contracting office that you plan to deal with or that you are dealing with what, if any requirements for self-performance are or should be in your contract. Of course, you probably don't want to raise the point, since it appears that you already have some type of strategy for accomplishing the work. -
Prime vs Sub Percentages Question
joel hoffman replied to obinnae's topic in Small Business, Socioeconomic Programs
Thanks for the help, Carl! I can go directly to clauses that I'm familiar with at the Hill AFB website on this Blackberry. But I can't navigate through FAR in the "windows" for that site or at the Acqnet website, unless I am on a regular computer. I apologize for my "limitations on research" capabilities. The Notice of Set-aside clause you referenced for Service-disabled Veteran-owned Small Business Set-asides has similar requirements as the Limitation on Subcontracting clause at 52.219-14 that is used in small business and 8(a) set-asides. And I forgot that HUBZone set-asides use a similar Notice of Set-aside clause (52.219-3) as the one used SDVOSB set-asides. Sorry. I have also found that the definitions in the SBA's regulations for self-performed work in Title 13 vary slightly between HUBZone and other types of set-asides, like 8(a). So one should read that coverage, too. -
Prime vs Sub Percentages Question
joel hoffman replied to obinnae's topic in Small Business, Socioeconomic Programs
I don't have access to the required clauses for your type set-aside contract, tonight. Is 52.219-14 in the contract? If it is, then the percentage for the applicable type of work apply to the prime. -
Prime vs Sub Percentages Question
joel hoffman replied to obinnae's topic in Small Business, Socioeconomic Programs
The clause at 52.236-1 is inapplicable to 8(a) set-aside contracts for construction. This is for unrestricted contracts. The clause that I mentioned specifies the minimum self-performance requirements for 8(a) set-aside contracts. There is fairly clear explanation of this in the SBA Code of Federal Regulations, that will answer your question. The "concern" is considered the "Contractor" and your sub is just that - a subcontractor. -
Prime vs Sub Percentages Question
joel hoffman replied to obinnae's topic in Small Business, Socioeconomic Programs
Please advise whether or not this answers your question. If the contract is a set-aside for sole source 8(a), competitive 8(a) or small business, the following clause is required: 52.219-14 -- Limitations on Subcontracting. As prescribed in 19.508(e) or 19.811-3(e), insert the following clause: Limitations on Subcontracting (Dec 1996) (a) This clause does not apply to the unrestricted portion of a partial set-aside. (b ) By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for -- (1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern. (2) Supplies (other than procurement from a nonmanufacturer of such supplies). The concern shall perform work for at least 50 percent of the cost of manufacturing the supplies, not including the cost of materials. (3) General construction. The concern will perform at least 15 percent of the cost of the contract, not including the cost of materials, with its own employees. (4) Construction by special trade contractors. The concern will perform at least 25 percent of the cost of the contract, not including the cost of materials, with its own employees. (End of Clause) -
X, I don't believe that the JOC process complies with the Brooks Act requirements for acquiring A-E design services or with FAR 36.104 restrictions/authorizations for acquiring D-B services in lieu of the Brooks Act, but I may be wrong. Please consult an attorney who can research the appropriate authorities for D-B. FAR 36.104 essentially says (in part) that unless the Brooks Act procedures for traditional Design-Bid-Build are used (FAR 36.6), design-build process must use the 2 phase, competitive D-B procedures (FAR 36.3) ** unless some other authority is available. Read another way, it essentially says that the D-B-B process must be used, absent other authority to use D-B in lieu of D-B-B . The "One step Turnkey" competitively awarded D-B process in 10 USC 2862 may also be used, where appropriate, for Military Construction (MILCON and family housing), but not for the Coast Guard or for Civil Works for the Corps*. The Corps and NAVFAC have used the 2 phase process for selecting Multiple Award Design-build ID/IQ base contract holders, who compete for military D-B task orders (Corps calls them "MATOC's" and NAVFAC calls them "MAC's"). Although I don't have immediate access to it, the concept of the Corps using MATOC's for Design-Build was challenged a few years ago in US Court and the Government prevailed. The Corps also used Single award ID./IQ's for awhile but they selected the contractor, using a 2 phase D-B process. A single contractor would then be issued task orders for D-B projects. We aren't currently using that process and I'm personally of the opinion that it isn't authorized, after reading a US Cort of Federal claims case***, where the judge essentially said that the D-B legislation all requires competitive acquisition procedures for design-build. Even though the SATOC or a JOC holder may have been selected on a competitive basis, individual orders are non-competitive. The Corps doesn't allow sole source 8(a) A-E contracts because of the Brooks Act restrictions. I'm also of the opinion that a sole source 8(a) D-B contract isn't allowed for the same reason, plus not being a specifically authorized process, per 36.104. JOC job orders are non, competitive and JOC doesn't use the 2 phase method to select the JOC contractor. However - there may be a possibility that 10 USC could cover O&M funded design-build minor construction. I'd have to do some more reading of the definition of construction for that. However - can job orders be issued non-competitively, even though the contract was competitively awarded? *!0 USC 2801 (d) says that 10 U.S.C. ?? 2801 et seq. (other than sections 2830, 2835, and 2836 of Chapter 169 [10 U.S.C. ?? 2830, 2835, 2836]) does not apply to the Coast Guard or to civil works projects of the Army Corps of Engineers. ** The 2 phase D-B process is authorized by 10 U.S.C. 2305a for Military Construction and Family Housing or 41 U.S.C. 253m for other agencies, including Coast guard and those Civil Works projects by the Corps of Engineers. ***The Court of Federal Claims decision was Fluor Enterprises, Inc., v. the US, No: 00-207 C, March 24, 2005.
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I agree to a certain extent. A mod is necessary to adjust the price and add or reduce funding in order to properly make payments but the work hasn't changed. It is a contract management function. Years ago, we sent in reconciliation forms to track variations and to alert the Finance and payment offices that pay quantities were different than the official contract price. Now, it is done by modification, which is better but the administrative mechanisms don't seem to be there yet. We were told to cite the VEQ clause as the authority for the mod to adjust estimated quantities to actuals. However, the VEQ clause is not the contract mechanism that allows us to pay for actual quantities. The contract will include measurement and payment provisions for the purpose, which are self acting. The VEQ clause only addresses the right to a unit-price adjustment under certain circumstances, if the actual quantity of an item falls outside a range of 85-115% of the estimated quantity. The clause also allows a time extension, if warranted, due to the additional work. However, it doesn't mention paying for actual quantities or adjusting the contract price. We certainly wouldn't want to use the changes clause, because routine variations in quantity, absent a change in the work, is not a "Change" or a "Change Order". I feel that either the VEQ clause ought to be broadened to cover the administrative aspect of paying for actual quantities, adjusting funding and quantities, etc. or admin mods should be used. At any rate, a construction contract with estimated quantities of unit-priced items is still called a FFP contract (of sorts) in accordance with FAR 36.207. So you can check the FFP block in your contracting software when using such a contract.
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Notwithstanding what Vern said above, see FAR 36.207, Pricing fixed-price construction contracts. Subparagraph (a) says that generally FFP contracts shall be used for construction and says that they may be priced on lump sum basis, unit-price basis or a combination thereof. Because of the DoD contracting software system and reporting requirements, we must adjust the final contract price to reconcile final quantities of unit-price items with the adjusted contract price (100% complete reflects actual quantities). Due to limitations in SPS, we can't use an admin mod to make the total price adjustment, even though the rights of the parties are not affected by the adjustment, because the software won't accept price adjustments using an admin mod, so I've been told. The term FFP refers to the unit priced and lump sum CLINS, not the total contract price.
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[Edited on 4/10/2011] 1) What agency is this for? 2) Did the RFP or RFQ mention anything at all about technical approach for Help Desk services or does the contract address data security or integrity? 3) Does the proposal response to the solicitation address what I asked about in number 2, above? 4) Is overseas or non-CONUS operation of an IT help desk acceptable to the agency, if it is likely that govt data might be accessible to the service desk reps? If the reps can get into computers remotely, then they will have access to data. I would think that there would be a concern with security of data or concern about controlling security, using foreign personnel in a remote location. 5) If there is a concern and if the RFP/RFQ didn't address such security concerns, can you amend and then conduct discussions? 6) Can you consider an overseas help desk a security threat and downgrade the proposal or quote without an amendment? 7) You asked: "Does anyone know of any active regulation that would prohibit this?" Your ordering activity IT personnel should be familiar with the information security regulations I'm quite sure that DoD has regulations that address data surety requirements. Our "internal Taliban" (my code name for the IT folks) watches over everything and our yearly training discusses security of IT data.
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I believe that there are actually 50 Parts, plus 3 that are "reserved" (20, 21 and 40). Does anyone know why these were reserved or what they were reserved for? Were they originally designated for something that was deleted or reorganized under other Parts?
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I'm curious why creyes814 might think that there is a problem with a performance assessment representative providing input to a government estimate. For that matter, we often have A-E firms and contracted professional estimating firms preparing the guts of government estimates for various construction contracts and some specialized services like explosive ordinance disposal.