Regor

On ‎7‎/‎22‎/‎2019 at 2:13 PM, joel hoffman said:

17.204 (c) says:” The period shall be set so as to provide the contractor adequate lead time to ensure continuous production.” 

One can’t simply write anything they want, without considering how to provide the contractor adequate lead time to ensure continuous production .  

One shouldn’t simply insert a number of days, without providing context to those days and without providing adequate lead time. 

I feel the most overlooked FAR reference is the very next line which is:

(d)  The period may extend beyond the contract completion date for service contracts.  This is necessary for situations when exercise of option would result in the obligation of funds that are not available in the fiscal year in which the contract would otherwise be completed. 

That not really contradicts but defeats the intent of (c) but is required with fiscal year service contracts.  So many exercise options contingent on availability of funds which to me is an invalid exercise.  How can you unequivocally exercise an option that is based on a future event (the availability of funds). 

On ‎5‎/‎6‎/‎2019 at 7:03 PM, BigBirdContracting81 said:

@ji20874 Based on my understanding of everything, the earliest possible date the Government can exercise Option 2 is June 22, 2020 to June 21, 2021. Thanks for your help. 

 

 

That is the PoP of Option 2 and does not relate to the exercise of the option.  It all depends on what the fill in for the -9 says.  If just numbers are entered, i.e. 30 for first fill-in and 60 for second, and as long as the required preliminary notice is given, the option exercise should be valid.  The courts have ruled that "within" means prior to (don't have the case off top of my head to site it) when ruling on option exercises under -9 clause.  What I don't know is if the intended result which is to access the ceiling provided by Option 2 is effective at exercise or aligns with the PoP.  I haven't done CR type contracts in over 15 years and lots has changed since then but I don't see a problem with exercising it up to a year early provided the notices are timely per the -9.

Hi all. Long time lurker, first time poster.

I am currently AD USAF enlisted. My time in the Air Force is quickly coming to a close and the reality of my future is weighing heavy on my mind. I have been told from day 1 in contracting that the job prospects on the outside are plentiful for "people like us" but first hand examples tend to be harder to come by.

Do any of you have experience or know people that have succesfully made the transition to civil service or private sector contract admin?

From the eyes of a hiring authority is my experience enough to get into a GS-12 position?

Experience.

6 years experience operational contracting.

1 year as warranted CO with limit of 150k. No termination authority.

3 years as warranted CO with $2m limit. No termination authority. (current warrant and used regularly)

Experience in Commodities, Formal Services, and Construction.

APDP Level 1 (they restrict attendance to lvl 2 in residence courses to members who re-enlist)

CFCM

CPCM (will have done before I leave the service)

Thanks for your replies.

That experience will not get you a GS-12 in current AF. I don't think if it will even get GS-11. SAT warrant, Level I. There is a reason they dangle that Level II at you to re-enlist. I think at best you would need to find someone willing to do a 7-9-11 Developmental.

Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.

i would add that pieces could be built off site and if later assembled into real property it defiitely is all considered "construction" and subject to FAR 36. But in my case it is personal property and not real property so it is not relevant in this particular instance.

So the AC in the OP’s storage unit doesn’t work and his outfit wants to replace it. The work has been estimated to cost about $45,000.

Here is the original question:

In other words, should the replacement be a supply contract or a construction contract?

Now look at the definition of “building or work” that Don provided from FAR 2.101. It’s only three sentences long. First, a building or work is a “construction activity,” not a thing. Specifically, its construction activity that relates to a list of things as diverse as lighthouses and buoys (??? do you “construct” buoys???).

Now look at the first sentence of the definition of “construction” as defined in FAR 2.101:

Emphasis added. So, what’s the definition of construction in FAR 22.502?

Emphasis added. Now look at the definition of supplies from FAR 2.101:

Emphasis added.

Hmmm, my real property people say that the manufactured storage (facility, structure, unit, building, shed, etc., whatever) is not real property. Black’s Law Dictionary 9^th ed. defines real property as follows:

Emphasis added.

The OP said that the storage thingy has no foundation (Post #3), so it is not attached to the land and presumably can be removed without injury to the land. Bottom line -- it’s personal property. Well, then, doing something to it cannot be construction according to the definition in FAR 2.101, which means that doing something to it cannot be a “construction activity” as used in the definition of “building or work,” which means that doing something to it is not a “building or work.”

Now, let me think, what would be easier to award and administer – a $45,000 construction contract or a $45,000 supply contract? Would classifying the acquisition as for supplies be clearly wrong? Not to my mind. In fact, it appears that calling it construction would be clearly wrong.

If I’m in charge of that contracting office I know what I’d do. I’d proceed with an acquisition of commercial items in a quick minute and with no doubts or regrets, unless someone showed me something quite specific and persuasive to the effect that DOL has already found that kind of project to be subject to Davis-Bacon.

Could I be wrong? Sure, I've been in this business long enough to know that things are complicated. But I'm not wrong until someone proves it.

Thank you Vern. That is a well thought out and complete breakdown of real property.

I think Vern is correct that this might be classified as a supply contract.

Here are some reasons why the contract classification and work classifications are confusing here. Even if it is a supply contract. I think that a firm that does business as a dealer/installer/construction company would likely be the Contractor and will supply and install the new equipment. A manufacturer generally won't contract to supply and install three residential A/C Systems and be responsible for warranties, workmanship, etc. Its authorized dealers provide and perform all of those functions that we would contract for. The question to me would be "Is this a public building or public work or is it not for purposes of application of the DBA?"

1. What constitutes "construction" as a type of acquisition (e.g., a constructon contract or construction as an activity within a broader scope of work) from the definition of "construction" in FAR 2.101 (emphasis added):

“ 'Construction' means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels..."

2. BUT - a relocatable building is classified as personal property under (at least) DoD and the individual services' regulations. For Army, see AR 420-1, Chapter 6, Section IV. Note that exterior utilities, permanent foundations and other supporting work for the relocatable may be classified as real property. We don't know if this is a DoD storage facility. But I bet that there is some consistency within many of the federal government agencies.

3. Now, continue reading the definition of construction in FAR 2.101. It excludes repairs to personal property from the definition of "construction" contracting:

Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in Subpart 22.5, see definition at 22.502).

4. The DoD and the Services classify replacement of a failed air conditioning system in a building that is real property as "repair" as distinct from "construction" for reasons other than contracting under FAR. Due to various statutory, regulatory, and administrative restrictions on types and sources of funding, "a clear distinction must be made between maintenance, repair, and construction work". As stated above, both repairs and construction related to real property would normally be classified as construction for purposes of contracting under FAR. For Army, see the classification and discussion of "repairs" to facilities under Army Pamphlet 420-11, "Project Definition and Work Classification" at http://www.apd.army.mil/jw2/xmldemo/p420_11/head.asp

"1-6. Definitions

a. Repair. Repair means "to restore a real property facility, system or component to such a condition that it may effectively used for its designated functional purpose."

(1) When repairing a facility, the components of the facility may be repaired by replacement, and the replacement can be up to current standards or codes. For example, heating, ventilation, and air conditioning (HVAC) equipment can be repaired by replacement, can be state-of-the-art, and provide for more capacity than the original unit due to increased demand/standards. Interior rearrangements (except for load-bearing walls) and restoration of an existing facility to allow for effective use of existing space or to meet current building code requirements (for example, accessibility, health, safety, or environmental) may be included as repair.

(2) Correction of deficiencies in failed or failing components of existing facilities or systems to meet current Army standards and codes where such work, for reasons of economy, should be done concurrently with restoration of failed or failing components. When the facility is in an overall failing condition corrective work may involve increases in quantities or capacities and inclusion of systems or components not previously present in the facility. "

5. So, I think that replacing failed A/C systems in personal property could (should?) be performed under a supply contract, bearing in mind that there will be significant associated installation work performed by trades persons that resembles construction or repairs of air conditioning systems for real property buildings.

7. So -unless somebody can define what a "public building" or "Public Work" is, I think that one ought to check with the DOL to see if the DBA applies to the installation effort. I haven't been able to find the definitions yet. Can someone point me to the definition? Thanks.

This is what we came up with as well. To answer the questions people had, in no particular order, we are DoD and treat it like Joel said, personal property. The modular building is used as a supply wharehouse. it is treated by civil engineering as personal property and they won't touch it, (even though it is assigned a builiding number). To the person who replied that I should read his post, I did, and this work is not a repair of real property or public facility; it is classified as personal property as I said. The modular trailer was bought about 12 years ago under GSA contract. Guess it was a way to beat the system by obtaining warehouse space w/o real property. In retrospect it probably wasn't proper at the time but someone probably won an award for it or at least was a bullet on their performance report.

Turns out the IGE was way off and not that much labor was really involved. Had to run new refrigerant lines but electrical was already there and sheet metal was really not needed as they just needed to hook up to exisiting ducts. Was done as supply w/installation. Local HVAC firms, same ones that would work on your home systems, were the potential sources. Since it's now below $25K, we're just getting local SBs to provide lump sum quote to provide and install.

Thanks for the responses. My main concern was the construction aspect and D-B applicability. Even though the engineers classified as personal property, I wasn't convinnced that it still wasn't construction as the engineers are quick to make any determination that reduces their involvment or amount of effort on their part. The IGE was based on someone in engineering using RS Means but wasn't really appropriate for the actual requirements based on configuration. So, it is not awarded yet, but the way ahead is very simple.

Reading between the lines of your question I think you are asking if Davis Bacon applies and I would say Yes.

Reference FAR 22.4 which provides that “repair” to a public building and public works Davis Bacon is applicable. Just because the crazy policies of your agency does not have it on the property records I am betting DOL might consider it to be a “public work”. To carry it further a union local, should the prevailing rate be based on the locals rates and policies of that union where the work is being completed, would consider the repair covered by that performed by the local.

As another reference for you to research per Vern’s comment look up the definition of “public work”.

Why would Daviss Bacon apply if it is not considered construction?

If the storage facility is not attached to a foundation, just resting on the ground, then I agree that it's not real estate.

I don't know what you mean by "HVAC" in this context. I don't know enough about your requirement and the market to make any suggestions. Do some market research. One thing -- don't refer to such heating and cooling equipment as a "commodity". They're differentiated products. Corn, raw production materials, crude oil, and coffee are commodities.

Split A/C system where there is a blower (air handler) and a condensing unit, much like in a residential home. The work requires 75' of freon lines, 240V electric, and connection to ductwork.

Not on property records. Not maintained by CE. No foundation. Think mobile home but bigger. CE won't touch as they say it's an equipment item.

Here is on of my favorites. Really gives good insight.

Tell me/us about a time you made a decision and it turned out that it was the wrong decision.

I like the insight and want to see the thought process that went into making that decision. I see too many people that are afraid to make decisions and its something we do constantly. You can see if they have sound decision making skills or if they make snap decisions without enough facts or wait for someone else to make the decision for them.

Just looking for how others are handling. There is a storage facility that apparently was bought as equipment and was not a construction. Haven't seen it but it must be pretty decent size. A/C went out. There are 3 each 5 -ton systems with separate air handlers and condensing units. Same type of units in your average home. However, since the engineers don't have it on their real property books, they won't touch it. Gov't estimate comes is aroung $30K with price of 3 units abot $15K and the rest labor. Labor requires fiitting to existing ductwork, electrical disconnects, approximately 75' of refrigerant lines. Because the HVAC units are not going in real property, are you buying this as a commodity with incidental installation even if it require trademan such as plumbers, electrician and HVAC techs to do the install?

Good questions. First off, I despise BPAs. That said, they are just agreements and not contracts. You do not need to advertise for establishment which you noted. I guess they jsut want you to do that to increase number of responses so you'll have more to choose from? Seems like its getting away from the intent of the BPA in the first place but that's my opinion. When it comes time to make purchases of items that BPA holders would provide, that's when you need to determine what you have to comply with as far as competition and advertising. Just because you advertised your desire to establish BPAs does not mean you do not have to advertise a purchase of $40K. The BPA is just another form of making the purchase. Are you sure the BPA is the best instrument?

Can only guess as to rotating. We used BPA's for office supplies back before GPC. Allowed for many purchases and just receive one bill a month. All were small dollar and rotating spread the business out amoung qualified local sources. Kept them interested and made everyone happy. Of course most purchaes were just a couple hundered $$ and that was eons ago. WIth the GPC I really don't see need for them stateside. Without knowing what you're buying and how much spending, frequency, it's hard to offer an opion and even if I could, the only one that matters is the CO signing the award. FAR is flexible and many ways to skin the cat. Is the BPA the best for your instance?

Yep, got numbers reversed in second paragraph. Point still stands in first paragraph.

Reform, to clarify - the question doesn't pertain to how to reimburse the contractor for the bond in a progress payment. That is pretty straight forward .

I believe that the question concerned how to negotiate the contract or modification price when including the cost of the bonds. The debate here concerned whether or not the contractor can charge overhead and profit on the cost of the bond in calculating the total price. In my experience since 1971 with contract and mod negotiating I only remember encountering one construction contractor that charged anything on the cost of the bond. In that case, they charged bond on the bond to account for what the bonding company would actually charge at the end of the contract. My last experience was with a $25 million equitable adjustment in 2012 and they did not charge any G&A or profit on the bond cost.

Others here said they have seen such charges.

The bonding company calculates the final bond cost as a percentage of the final contract price, in my experience.

I thought it was about invoicing as the OP said it was TO against MACC. I figured that MACC would be competitive so bonds were included in total price. But I'm not working in construction and haven't in a while but when I did, we never asked for nor received a detailed breakout. Our award decision was based on current performance and price so we never saw the bonds, just in payments. When they invoiced for bonds, we took total price, subtracted bonds to establish progreess payment percentage base. I guess I just didn't see a reason to evaluate bond costs separately on a MACC TO. My mistake.

I say no to adding G&A and/or profit to bonds cost. It's based on para g of 52.232-5, Payments under Fixed-Price Construction Contracts (Sept 2002) which says, Gov't shall reimburse the amount of premiums paid.

(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.

I don't currently do construction contracts but when I did, we told them how to submit their invoices. We paid for bonds separately and subtracted that from total contract amount to determine base for percent of completion progress payments.

In order for options to be exercised unilaterally, the one with the authority to exercise, must do so with strict compliance of the terms spelled out in the contract. Your option CLINS will have a period of performance associated with tehm, do they not? How do you change that PoP to a reduced amount after exercising the -8 option? Also, you have filled in both clauses saying that you will exercise 30 days prior to contract expiration. How can you meet the 30 days prior to contract expiration requirement for both (unless your "contract expiration" is deemed to include the options I guess you could make that argument)?

I've done a lot of research on options over the years as they have always bugged me but this is one scenario I have never come accross or even considered. We in AF are instructed to not use -9 unless it is the result of protest or delay in awarding follow-on. Someone posted a case where courts ruled that not to be the precedent, but it is what our HQ has instructed for us to follow so we do.

Vern, I am talking about 217-9. The contract has a period of performance specified, but 217-9© says (paraphrased) that the duration of the contract will not exceed the period of performance plus six months.

The contract does not include 217-8.

The clause 52.217-9, Option to Extend the Term of the Contract at paragraph c should only reflect options under that clause, not under Option to Extend Services. How is it that you have 52.217-9 with a fill in of 6 months but no option CLINs? How were the options evaluated at the time of award? Sounds to me like there was an error in the fill-in. Some people include the 6 month extension under 52.217-8 in the fill-in for 217-9 even though in 52.217-9 it clearly says "The total duration of this contract, including the exercise of any options under this clause. Sounds like you may not even have any option available.

Good catch Vern. I'm not the CO nor the buyer, just a Policy guy. I was combining a few issues. The flight surgeon was something else (ethics related). These positions are indeed SCA positions vs. medical professional.

@TAP, no we are not encouragning them to submit proposals that are in excess of SCA WD. The base rate is used to evaluate their capability to fill the position. Current market analysis shows that they should be able to fill at the SCA rate. The reason it is there is that in the past, they have had issues where current market rate was much greater than prevailing WD rate. If the contractor doesn't do their own research and just proposes w/o even checking local rates, they could be severely under-proposing and not have a realistic chance at filling the position at proposed rates.

Roger

Is the task order for a flight surgeon? If so, are flight surgeons covered by the Service Contract Act? P.S. Unless the acquisition is being conducted through sealed bidding, the concept of responsiveness does not apply. Task order competitions are usually negotiated acquisitions. In such a case the task order proposal would be unacceptable, not "unresponsive" or "non-responsive".

TAP – The real question is what leads Regor to believe that a contingency not allowed by 52.222-43 has been included?

The contractors propose both a base rate and fully burdened rate so we can see the base rate escalate for the option years. They propose both so that we can evaluate the liklihood they have to fill the position. For instance, if the SCA states $17+ fringes and ktr proposes $17+ fringes but your market research shows going rate of $25+ fringes in your local area, the lower rate is not likely to get the position filled. The ktr also has a fill rate % based on their historical fill rate under the contract. Since these are brand new contracts, there is no historical fill or past performance. Since all multiple award contract holders are even under the new contract, the only discerning factor right now is price.

Regarding asking for revised proposals, I just got clarification from buyer and it's not that we can't ask for revised, it's time based. As usual, the hospital didn't forecast for the retirement of their flight surgeon and we can't operate without one so any slip here will negatively impact base mission.

Medical commodity council contracts. We are placing TO's for various SCA contract positions in hospital. Of course, 52.222-43 requires contractors to no price in any contingency for wage or fringe increases that would be covered by 52.222-43. Specifically, para b of 52.222-43 says, " The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause."

The contractors all propose a base rate and fully burdeoned rate. The fully burdoned rate is multiplied by NTE hours for each CLIN. This gives you an evaluated price for each year. Well, because the have to propose a base rate (which is used in conjunction with your market research to assess lieklihood of filling position at proposed rate?) in addition to the fully burednod hourly rate, we can see that they included an increase which violates 52.222-43. There is no provision for the ordering CO to request or allow the vendor to modify their proposal. Normally you would think that if they escallated and no one else did, it would sort itself out because the evaluated price would potentially be higher based on inclusion of escallation where others don't. However, this is not the case. So the question is, if a contractor includes escallation for a SCA covered position, how is the proposal handled? Is it responsive if they clearly violate 52.222-43( which is included in the basic contract? Or would you evaluate it as submitted but deny any EA as a result of increases in option years if the WD increases on the basis of they already included contingencies for it in their proposal? Remember, we cannot ask the contractor to revise their proposal.

I've searched and cannot find anything.